by Patrick Mawaya, Malawi, October 1997
THEME = JUSTICE
Malawi's population stands at nearly 12 million, with a growth rate of 3.2% per year. To cater for the administration of justice, there are at least fifteen High Court and Supreme Court Judges, only one being a woman. (Women form 52% of the population). There are about one hundred and fifty lawyers working in the civil service and in private practice.
Although Malawi largely follows the British system of justice it inherited at independence, there is no Bar Association or Bar Council. There is, however, a Law Society. The Malawi Law Society currently acts as a Bar Association. Also, Malawi's judicial system does not distinguish between Barristers (a lawyer who has been called to the Bar and is qualified to plead in the higher courts) and Solicitors (a lawyer who advises clients on matters of law). Malawian lawyers are trained to do both jobs.
Citizens become judges or magistrates by appointment. The basic requirement is that the judge should be a graduate from a law school and have practical experience. Currently, only the University of Malawi offers a Bachelor of Honours Degree in Law at its Chancellor College campus in Zomba. Tribal origin is of no importance when it comes to appointing magistrates and judges.
The Chief Justice is appointed by the President, and confirmed by the National Assembly. Other judges are appointed by the President, on recommendation by the Judicial Service Commission of Malawi. This Commission is composed of the Chief Justice, the Chairman of the Public Service Commission and a Justice of Appeal. After appointment, a judge can continue in office until the retirement age of 65.
Unfortunately, Malawi does not, as yet, have any specific follow-up training for judges after appointment. However, refresher courses are currently being organised both within and outside Malawi, so that the legal profession can meet the challenges of present-day Malawi.
An independent judiciary is the cornerstone of the rule of law in any democracy. Generally speaking, Malawi's judiciary is considered to be independent, but recently, its reputation has been challenged. This took place in the early stages of the trial of former President Banda and five other members of the Malawi Congress Party (MCP). They had been charged with the brutal murder of three members of the Cabinet and a Member of Parliament in 1983. On 23 December 1995, a jury found former President Banda and his co-defendants not guilty. The government cried "foul", saying the Judge had misdirected the jury, and then took the case to the Supreme Court, but this time, with a different charge: "Conspiracy to murder".
Lawyers acting for the government widened the case. They said there was an "inner circle" involved in the murders. However, it was difficult for the lawyers to prove that an inner circle indeed existed at that time. In 1997, the Supreme Court pronounced on the case. Reference was made to what the Judges termed "the dictatorship in existence at the time of the murders". They said: "Under a dictatorship, there can be no question of an "inner circle" making decisions, because the very nature of a dictatorship means that all decisions are made by the dictator". All the accused were then acquitted. Looking beyond the case, it was clear the government was really gunning for the MCP's strongman during Dr Banda's dictatorship, Hon.John Tembo, considering him to be one of the famous "inner circle".
Thus, Malawi's judiciary was able to stand up to government interference.
Is corruption a threat to the judiciary's independence? Commenting, a judge says: "It largely depends if you are an introspective person or more outgoing. If you're a "hail-fellow-well- met" sort of person, there's more chances that you cannot avoid being corrupted. As for myself, I've not much time to go out for I'm a busy person, and I also need time for my family".
This particular judge, however, failed to add that another cause of corruption among judges, could be due to their poor remuneration. Recently, the National Assembly approved a 300% salary increase to the Judiciary. With parliamentary approval, new salaries for judges per month, range from US $1,000 (for Chief Resident Magistrates) to US $1,700 for the Chief Justice. In presenting a report on improving conditions of service for the judiciary, the Parliamentary Budget and Finance Committee commented: "While fully appreciating the need to improve the conditions for the judiciary, the committee felt...the proposed conditions of service for the judiciary in their entirety, would unleash forces which the government would find difficult to control".
But those who carried out the pay review exercise, argued that more attractive conditions of service will not only enhance the independence of the judiciary, but will also address the problem of shortage of high quality candidates for judicial positions.
Malawi's judiciary currently suffers from understaffing, poor record keeping, shortage of trained personnel and heavy caseloads. A number of judicial officers have quit their positions, to work under more favourable conditions, in the legal profession's private sector. This departure has created a very big gap which government will find difficult to fill. It is, however, expected that the new salary increases will attract more graduates to join the judicial service.
It should be pointed out that in addition to salary increases, the government also provides vehicles and free housing.
Improving conditions of service in the judiciary is not, however, any guarantee that the judiciary will be able to retain lawyers who are now vying to join private law firms. In fact, many young lawyers say: "With the increasing cost of living in Malawi, it's important to make as much money as possible. And this you cannot do when working for the government".
In 1995, there was a reform of the criminal justice system, carried out with financial support from the British Development Division in Central Africa (BDDCA). The project was called: "The Malawi Legal and Judicial Reform Project". It focused on many areas such as arrestable offenses, bail, release, cautioning, fines by police, the "48 Hour Rule", road traffic offenses, re- designing of the charge sheet, development of the Code of Conduct for Legal practitioners, development of the Code of Conduct for judicial officers in Malawi, disclosure of witness statements, homicide cases, sentencing.
In fact, many legal points badly needed clarifying. For example: When is a warrant needed before arresting someone? How long can the police hold someone in custody whilst continuing their investigations? How soon after arrest must a suspect be brought before a court? The necessity of informing suspects of their legal rights.
Concerning the "48 Hour Rule" (the maximum time an arrested person can be kept in custody before being brought before a court): It was found that there are problems of interpretation as provided by section 42 (2) (b) of the Constitution. This section says that every person has a fundamental right to liberty, and every person arrested or detained must be brought before a court of law within 48 hours, so that he should (a) be charged or (b) be informed of reasons for his or her detention if need be or (c) be considered for bail.
The Reform Project also found that there was a singular absence of a Code of Conduct for the legal profession. A draft Code has now been drawn up but has still not yet been activated. Once this is done, there will be a vast improvement in case- management and a reduction in unnecessary case adjournments, due to non-attendance by legal practitioners or non-availability of witnesses.
Malawi's legal system has a major problem relating to prisoners kept in custody "on remand", especially remand prisoners accused of homicide offenses. Reasons given for this are: delays in processing case files due to late or unduly prolonged investigations; delays (often more than a year) in passing case files on to the prosecution service; delays in hearing homicide cases in the High Court due to financial problems (frequently concerning allowances payable to the jury).
Judges in Malawi seem to be able to keep their independence, but the same cannot be said for other departments in the judicial system. Opposition politicians are victims of framed charges. The Director of Public Prosecution (DPP) seems to be dancing to the ruling clique. Government lawyers come under the authority of the DPP and the Attorney General, not under the Law Society. The Minister of Justice and the Attorney General (Dr Cassim Chilumpha) are one and the same person, and thus is affiliated to the ruling party.
So what's needed? 1) Court officers and those affiliated to them must do their utmost to preserve their personal integrity. This will give credence to their office in the public's eyes. 2) Well- qualified lawyers must be retained for court service. 3) The "48 Hour Rule" must be strictly adhered to. 4) The office of Minister of Justice and that of Attorney -General must be separate. 5) The Law Society and Legal Aid must work together, so that those who cannot afford legal fees are assured of justice.
Malawi's judiciary is on a test run. It's goal is - ensuring justice for all.
END