By Mapwiya Muulupale
“I am a bit confused by your article. The Chief Justice (CJ) has the power to act on his officers. If CJ has solid evidence, why is he not initiating suspension/ interdiction of the judge alleged to have taken part in the attempted bribery? Assuming the CJ has no solid evidence, why should the Anti-Corruption Bureau (ACB) arrest the people before gathering evidence that will stand in a court of law? The CJ is a shameless coward. He is afraid to wield the axe and wants ACB to be the hangman. Let me also correct you: the Malawi judiciary has always been corrupt.” – Mr Anonymous.Mr Anonymous.
Mr Anonymous above is a senior civil servant. He challenged me following an article in which I had commended the Judiciary for resisting bribes during the Elections Case.
“Let me also correct you; the Malawi judiciary has always been corrupt,” he minced no words.
As one who doesn’t take all allegations for a fact, I took him to the task. Using his argument against the CJ vis-à-vis existence of evidence or lack thereof, I dared him to show me proof of corruption in the Judiciary.
I don’t recall his exact response, but it no longer matters.
Three developments have since transpired. The first is the still unfolding Zuneth Sattar saga. Also caught in Sattar’s web are some judges.
The second is the series of “filling-station grabs” that forced Parliament to toss constitutional decorum out of the August House’s window and weigh in on a matter being litigated in court.
The third is Parliament, which was trying to lock the barn after the horse bolted.
Let me elaborate. On Tuesday, Parliament passed the Courts Act Amendment Bill of 2022. If the bill is assented to by President Lazarus Chakwera, the retirement age of judges will increase from 65 to 70.
According to Minister of Justice and Constitutional Affairs Titus Mvalo;
“Increasing the age limit would facilitate the judges to excel in their services like their counterpart judges in comparable foreign jurisdictions…
“At 65, most Judges are still very resourceful, and their services are still needed at the bench”.
The good minister omitted to say if it is true that “the Malawi judiciary has always been corrupt”; corrupt judges will stay in the system five years longer, and hence, corruption is here to stay.
For the rotten judges unfit to lay any claim to the sacred title “judge”, this bill is:
• a lifeline of more years to collude, defeat justice with the Sattars of the world while self-enriching,
• a five-year license extension to grab “filling stations” and other assets from the moderately rich and gift them to corrupt stinking rich dogs, and
• more worrisomely, a middle finger to the many decent judges who take their profession seriously and always diligently seek to do the right thing before man and God.
Who needs this?
Not me. Not anyone who has ever been at the wrong end of a dubious judgement. It pains. It can kill.
Knowing President Lazarus Chakwera, this is one bill he will assent to because this was a government bill. Being a government bill, the Cabinet – and by extension, the President – already gave it its blessings.
This is why rushing this bill through was a grave mistake.
At a minimum, Parliament should have widely consulted the public, academia, and civil society before deliberating the bill.
A prudent Parliament would have viewed this bill as a window of opportunity to install guardrails over the Judiciary, which, per the Constitution, is supposed to self-regulate via the Judicial Service Commission (JSC).
Going by the fact that:
1) some judges, including Justices of Appeal, have passed with flying colours and made it unto Sattar’s list;
2) some judges seem to have evolved into asset-grabbing agents for some lucky folks, and that
3) successive Chief Justices seem impotent to reign in errant judges, let alone crack the whip on those whose behaviour and judgements bring disrepute to the Judiciary;
it is crystal clear that the JSC is not serving Malawians at large. The JSC probably negotiates excellent perks for the Judiciary but for the common man, it is doing nothing. Come to think of it, one wouldn’t be off the mark to assert that the JSC protects, shields, and enables some who don’t deserve to sit on those hallowed benches.
Why do I say this?
a) although the Minister of Justice would want the House and us to believe that the Constitution mandates the Judicial Service Commission (JSC) to preside over the professional failures of judges and magistrates; he could not give a single example of a Justice of Appeal or High Court Judge disciplined by the JSC.
Does this mean there have never been professional failures by Justices of Appeal or Judges? No, there have been several.
b) Even Parliament’s Chairperson for the Legal Affairs Committee (LAC), Hon. Peter Dimba expressed frustration that despite receiving complaints about decisions and the conduct of some judges, the LAC has been failing to execute its oversight role over the Judiciary.
What does this mean?
It means that the Judiciary is, at best, operating as a law unto itself and, at worst, above the law. Were we a dictatorship, this would be fine. But folks, we are a democracy, and in a democracy, “we, the people, temporarily lend power to people that we elect”.
Therefore, since we do not elect judges like the other two arms of government, they should not “self-regulate”. Instead, they should be held accountable by us, the people, through our elected representatives, in a transparent manner. No one should hide behind commissions or procedures.
The translucency is why some are running asset-grabbing rackets or corruptly hobnobbing with the Sattars of this world.
You know what? If you think this is bad, you have another thing coming. What makes me lose sleep is that when our Chief Justices learn about impending arrests of Justice-so-and-so, they use the JSC as a shield to delay or block arrests.
This allows unfit judges to continue presiding over cases, and in some instances, such people end up handling cases which have a bearing on whatever the law enforcement agencies want to nab them for.
Looking at how the ACB is struggling to move forward with Sattar-related cases, I would not be surprised if this is happening. And it will not stop until the CJ lets some judges taste the cooler.
Now that I know and I think about my demanding proof from Mr Anonymous, all he needed to do was to quote Bob Marley: “Time alone – oh, time will tell; you think you’re in heaven, but you’re living in hell”.
Time has vindicated him.