‘Judiciary strike recipe for anarchy’

One arm of government, the Judiciary, has its support staff on a strike, which has now entered its fourth week. What is the state of government machinery and Malawi’s system of justice in this context? Ephraim Nyondo spoke with Bright Theu, lecturer in human rights and governance, Faculty of Law, Chancellor College.

Q: It is clocking a month without the Judiciary executing its duties. Things, however, appear to be business as usual across different sectors. Isn’t this creating an impression that the country is doing well with or without this strike?

A: Quite contrary to what may appear to be business as usual, the lack of justice delivery is a fundamental and colossal failure of government however temporary that failure may be. By our constitutional framework [and in any country that lays claim to being civilised], delivery of justice to the subjects is so important that its administration is the mandate of one of the three main arms of the State: the Judiciary, a crucial pillar of our civilisation, a guard to anarchy, and the protector of our rights. The current lack of delivery of justice means injustice coupled with impunity is flourishing, both at the hands of the government [which is the worst culprit in violating people’s rights, especially the current government], and between private persons as well.

Law firms, most of which to a larger extent thrive on contentious business, cannot prosecute or defend their clients cases and earn their income. Government will have to pay the justifiably striking judiciary staff since they are still on payroll, despite the fact that they are currently not offering their services. We are all currently at the mercy of perpetrators of injustice, among whom the government and its cronies rank first. As a country, we also risk degenerating into full scale anarchy as each person will take the law into their own hands in self-help. This is not exhaustive. The sad faces of the current situation will aggravate and eventually unfold full range as time goes by without government honouring its obligations as constitutionally approved by Parliament in 2006. Government cannot keep on shifting its obligations, hoping that some other government in the future will shoulder the obligation retrospectively.

Q: Weekend Nation reported that judges, too, are threatening to join the strike. What legal gaps would this create in the country’s justice system?

A: Currently, with support staff not working, the courts (judicial officers) are not working since their work draws on the work of the support staff. Should judges join the strike, the situation will surely worsen, because that essentially entails a greater demand to be met by government at or around the same time, with a veritable likelihood that the current state of affairs will take longer to resolve since it seems apparent that government does not have enough from its failed zero-deficit budget to meet both the salary arrears accumulated over the past five or so years, and the adjusted new salaries.

Q: As a legal expert, what does this strike speak about the rule of law in Malawi?

A: To begin with, the Executive’s refusal to implement both the approval by Parliament of salaries and benefits, and the disregard of the court judgement of 2007 on the same issue is a sign of complete disregard of rule of law on the part of the current government. Somehow, this government has this wrong idea that they have the ultimate power on just about everything despite a clear constitutional framework of our State which entrust particular powers to the three respective branches of government. One branch or officers of one branch cannot just wake up and whimsically decide not to honour its obligations as determined by constitutional processes. I understand that Parliament determined the terms and conditions of service for the Judiciary. I also understand that when the Executive branch of government refused to honour Parliament’s determination, the matter was litigated and the court heard that the Executive branch of government is bound to implement the determination of Parliament. I am not aware of any appeal deciding contrary or pending on the matter. These were decisions of two of the three branches of government. They cannot be whimsically wished away by the Executive. To do so is utter lack of appreciation of the working of constitutional processes, and uncivilised. It also amounts to disregard of rule of law. It is shameful Executive arrogance of the highest rank.

Q: There are three arms of government: Executive, Legislature and Judiciary. The Judiciary is not functioning. What is the state of government in this context?

A: The current situation means that practically we have a defective State. One that is a good recipe for anarchy, abuses of various types, impunity and violations of constitutional rights.

Q: The strike in question reveals a case where the Executive is failing to execute decisions made by the Legislature. In such a scenario, are their provisions in our Constitution that victims of such circumstances can take up to access justice?

A: To the extent that the current situation has been solely caused by refusal to implement the terms and conditions as determined by Parliament in 2006, the Government of Malawi is in violation of a wide range of rights of persons, among which are the rights to access justice and effective remedy before a court of law. Unfortunately, no one can access justice from the courts since the latter are not working. In any event, in Constitutional Case No. 6 of 2006, the Malawi Law Society already approached the court with the issue which heard, among others, that government should implement the revised conditions and terms of service. The immediate effort would have been to enforce that judgement, but that would involve the very Judiciary which is now on strike.

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