By Mapwiya Muulupale
To set the context, I must bore you with some extracts from our Constitution.
Sections 116 to 118 of the Constitution establish, outline the composition, and spell out the powers of the Judicial Service Commission (JSC).
in brief, the JSC exists to regulate judicial officers. It consists of the Chief Justice (Chairman); Chairman of the Civil Service Commission; a Justice of Appeal or a Judge; and a legal practitioner and magistrate and has “the authority to:
a. nominate persons for judicial office;
b. exercise such disciplinary powers in relation to persons in judicial office as shall be prescribed by an Act of Parliament, subject to this Constitution;
c. recommend, subject to section 119, the removal of a person from judicial office;
d. subject to this Constitution, make such representations to the President as may be prescribed by an Act of Parliament; and
e. exercise such other powers as are conferred on it by this Constitution or as are reasonably necessary for the performance of its duties.”
Foundation laid, let’s get started.
According to media reports, the Judiciary has accused Parliament of acting contrary to its own Standing Orders.
This accusation followed deliberations in the previous week when the House debated a motion questioning a court ruling which is one of many that have followed the same pattern, same judge(s), same lawyers and similar outcomes.
High Court and Malawi Supreme Court of Appeal Registrar Kondwani Banda cited parliamentary Standing Order 99 (1), which says the conduct of the Speaker of Parliament, ministers, members, judges, resident magistrate, and public officers shall not be called into question in the course of debate, except by way of substantive motion containing a specific charge which, in this case, was not the case.
“The purpose of this Standing Order is to ensure that members do not act unfairly in the conduct of their debates under the parliamentary privilege. It essentially depicts the very principle courts use, never condemn before hearing.
“Considering the nature of the debate that went on, the members did not tread carefully on this thin line to an extent. And in a way acting unfairly as the motion brought did not contain a substantive charge and no opportunity to defend oneself was given.”
He further stated that this matter has set dangerous precedence because it affects the protection of judicial officers and public officers in their duties based on the cited Standing Order.
Banda added that the same Standing Orders also restrict the House from debating a matter still live in court.
“And so, all we implore is that the members must be guided by their own rules as a departure from the same does not reflect well on the overall picture of how business is conducted in the House,” he concluded without a word on the substance of the debate.
This has elicited different views from the general public.
A judge speaking on the condition of anonymity caught my eye in the report.
“If they have issues with the judge, let them follow procedure. Impeachment requires that there must be a complaint registered. Did anyone complain that the judge is corrupt, or are these just assumptions?
“This case was started with one judge who passed it on to another before it went to the Supreme Court, where the application was also unsuccessful. Why single out one judge? It is easy to make these image-tarnishing innuendos, but if MPs have evidence of corruption, they know where to report to.”
Reading this comment, I could not help but admire the anonymous judge’s gumption.
He did remind me of the Parable of the Unjust Steward (Luke 16:1-13). This is where a master summons his steward and gives him notice of dismissal for mismanagement. At this point, the master is unaware of the extent of the steward’s crookedness, and the steward is being fired for mismanagement, not fraud. While serving notice, the steward makes hay while the sun is shining. Realizing he will soon be jobless, he reduces debts owed by several of his master’s debtors in exchange for favours when he is unemployed. When the master learns what the wicked dude had done, he commends him for his “shrewdness.”
In a way, this is what the anonymous judge wants. “It is easy to make these image-tarnishing innuendos, but if MPs have evidence of corruption, they know where to report to,” he says.
“Of course, my Lord,” says I.
The underlined words are the key. The where to report is the JSC, whose mandate I started with and includes disciplining errant judges.
Despite the many sad lived experiences of Malawians at the hands of some few “shrewd” judge’s judgements, with the notable exception of one Lloyd Muhara, whose deplorable actions were, in fact, not conducted while sitting on the bench; not a single Judge or Justice of Appeal has been sanctioned by the JSC.
Yet, according to the anonymous judge, the JSC is where people seeking justice should find solace, and Parliament should put up or shut up!
What a load!
Another example is the case of timeframes for delivering judgement. While the recent Courts Act Amendment Bill has set fixed timeframes within which judges should deliver their verdicts after the conclusion of cases, the MLS president Patrick Mpaka does not believe this solves the issue of delayed judgements.
According to Mpaka, the High Court Civil Procedure Rules and the Industrial Relations Court guidelines already have such provisions which are not followed most of the time.
“Actually, there is a comprehensive procedure that if a judge does not deliver a judgement within such days, we have a right to take up a notice to the court to explain why the judgement has not come out.
“This is already in the rules, and we have done that. In my experience, no single judge has ever even given a date to those notices, but these things are in the law,” Mpaka argued.
So, here we go, the JSC at it again, sleeping on the job despite having all the tools and the mandate, and our anonymous judge would want us to escalate issues to the JSC!
Now, what should we make of all this?
In my view, everyone frustrated with the Judiciary has a point. And if they have a point, it is only right and proper that the people – via their elected representatives – hold judges accountable.
Trying to escape transparency and accountability using Parliamentary Standing Orders is, in my opinion, a cheap shot. I expected better.
Come to think of it, if there is a profession for which the Latin maxim: “Uxorem Caesaris tam suspicione quam crimine carere oportet” applies, it is the Judiciary.
My free advice to my esteemed Lords and Ladies is to look within for solutions. Fix the mess. Rid yourself of the bad apples because one single rotten apple can spoil the entire barrel.
Your Honours, I rest my case.