* A case that was commenced over 25 years ago and was already heard by the High Court but it cannot proceed because the judge that heard the matter retired some five years ago
* Delays in concluding trials mean that remandees stay too long on remand and in the worst cases, people have been on remand for over five years
* For such people, their right to be presumed innocent until proven guilty is practically taken away as they are punished by the long duration of remand in prison
By Duncan Mlanjira
The report that Malawi Human Rights Commission (MHRC) has submitted on the enquiry into corruption allegations levelled against High Court Judge, Ken Manda and the Judiciary in general, has exposed serious delays in delivering justice emanating from lack of professionalism on part of judges.
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In its investigation, the MHRC discovered that some judges have been elevated from the High Court to the Supreme Court of Appeal but left cases in the lower court without proper handovers — thus leading to remandees staying too long in prison and in the worst cases, people have been on remand for over five years.
The report — issued by chairperson, Chikondi Chijozi — gave an example of a case that was “commenced over 25 years ago and was already heard by the High Court but it cannot proceed because the judge that heard the matter retired some five years ago”.
“It is an undeniable fact that formal justice institutions are deemed complex, alien, remote, and inaccessible to certain groups of people in the world — Malawi is not exempted from this phenomenon.
Justice delayed is justice denied
“In the context of Malawi, some of the challenges prevalent in limiting people’s access to justice include delays in accessing justice; corruption and abuse of authority; cost of accessing justice; rights of victims in criminal cases and political interference.”
The MHRC further reports of structural challenges within the justice system, poor coordination, lack of awareness of the general justice system among the populace, cultural barriers and delays in operationalisation of the land tribunals.
“These problems result in delays in concluding matters and contributing to a huge backlog of outstanding rulings and judgements.
“As is often said, justice delayed is justice denied. Cases in the courts of Malawi take too long to be concluded. In some instances, there are delays associated with the actual trial taking long to conclude and at times it is a question of delayed judgments in matters that have already been heard and concluded.
“Delays in concluding cases have serious human rights consequences. Judgments that are delivered late are usually ineffective as the remedies that they offer are sometimes provided when they are least required.
“In worst scenarios, some judgements have been delivered when the claimants have passed on,” says the report, adding that “on the part of the prosecution, evidence can be lost when matters take too long to be processed in court.
“There are inmates in prison without any knowledge of how their cases are progressing. There are also instances where judges have heard cases and left the institution without delivering judgments.”
The MHRC maintains that all these “bottlenecks in the judiciary make people lose trust in the whole judicial system [and] this is compounded by the abuse of the concept of judicial independence”.
“This concept has taken to the level whereby judicial officers cannot be questioned for their conduct. Doing so is interpreted as trespassing into the terrain of judicial independence.
“To make matters worse, there is limited public awareness on laid down procedures for raising complaints against judicial officers. One of the necessary conditions for ensuring access to justice is that a system must be adequately resourced and organised.
“It has been observed that there are no proper court structures and a general inadequacy of human resources in the judiciary which is contributing to the backlog of cases.”
The MHRC further explains that the inquiry was aimed to assess the extent to which the judiciary is equipped with resources and if its infrastructure is of sound quality and that another dimension was aimed to unpack the ease of access to justice among the poor and those living in rural areas of the country.
“The Constitution demands that people should be given unimpeded access to courts and this right is basic. However, access to formal courts is not always easy in Malawi especially among the poor.
“The above stipulated challenges hinder people from accessing the courts with ease. Most of the remote courts operate at the pleasure of the magistrate, who is in most cases hardly there to hear cases.
“The main obstacle to access to the ‘formal’ system is physical inaccessibility. Magistrate courts in most districts are sparsely located and poorly staffed and equipped.
“Usually, such courts are run by district-based magistrates who periodically visit the community courts from mainly the district headquarters. As a result, poor people have to travel long distances to access courts.
“Sometimes, even those with courts within their vicinity have to travel long distances to district centres to access courts with ample jurisdiction. This is the case because most of the lower magistrate courts have limited jurisdiction over matters, such as land.”
Another challenge the MHRC identified is restrictions on which matters lower magistrate courts can hear and this leads to congestion in the upper courts — “yet, there are some well-trained professional magistrates (Senior Resident Magistrates) who can ably handle matters such as land disputes and even homicide”.
“It is also common knowledge that magistrate courts handle more cases and are more accessible to most local people in the country, unlike higher courts that are mostly found in urban areas.
“Magistrate courts are easy to access because they are close to the people and there are generally no legal fees for them to be accessed. For these reasons, there is a need for a review of subordinate court’s jurisdiction.
“The review should consider possibilities for Senior Resident Magistrate courts to handle other matters such as land disputes and homicide,” says the report adding that it is on this basis that the MHRC undertook the Access to Justice Inquiry on the effectiveness and efficiency of judicial institutions in Malawi.
The exercise was aimed at identifying the challenges that hinder the full realisation and enjoyment of the right to access to justice and making relevant suggestions and recommendations.
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The Access to Justice Inquiry came about after a request from the Legal Affairs Committee of Parliament tasking MHRC to act on the corruption allegations levelled against Justice Manda and the Judiciary — but when the MHRC invited the general public to submit evidence, none came up with any such accusations against Justice Manda.
Considering the situation at hand after receiving no response from the general public, MHRC further asked Parliament to furnish it with more information on the matter — but did not receive any response.
The MHRC still went ahead with the enquiry by gathering information from various sections within the society, including those directly and indirectly affected — whose panellists from other institutions included: Malawi Police Service, Malawi Prison Service, Legal Aid Bureau, Gender Justice Unit, Paralegal Advisory Services Institute, Child Rights Advocacy and Paralegal Aid Centre (CRAPAC), University of Livingstonia, University of Malawi’s Faculty of Law, Women Lawyers Association, Malawi Council of Churches, Centre for Human Rights Education, Advice and Assistance (CHREAA), Catholic Commission for Justice and Peace (CCJP), Malawi Law Society and Centre for Human Rights and Rehabilitation (CHRR).
