‘President was right on injunctions’

At the recent swearing in of newly appointed judges, President Peter Mutharika described some injunctions against the government as unreasonable and preventing the government from discharging its lawful responsibilities. In this interview with our Assistant Bureau Chief SUZGO KHUNGA, the Minister of Justice and Constitutional Affairs Samuel Tembenu justifies these remarks.

How relevant are court injunctions in the justice delivery system in this country in particular?

Injunctions serve a useful purpose in the justice system. To understand how it works, it is important to have a correct understanding of its nature. It is a court order which requires a person to do or to cease doing specific action. It can be a temporary or interim remedy. In most cases, it is intended to preserve the status quo especially where there is a dispute regarding the rights of citizens until such time that the dispute is finally determined by the court after giving the disputants an opportunity to present their respective cases before the court.

In this country, there have been occasions when the courts have, through the remedy of injunctions, played a significant role in nurturing our democracy. For instance, we have seen restraining orders being granted against the government or departments and other agencies from doing certain things which would be a threat to governance; or where government departments have exceeded their authorised powers. In the world of commerce, we have seen peoples’ houses being saved from sale until the court determines whether the proposed sale is proper.

Do you agree with the President’s sentiments as regards the negative impact of injunctions obtained against government?

Yes, I do. The context within which those remarks were made was when he was administering the oath of office to newly appointed judges. Specifically, he said that “there are times in this country when government is not able to discharge its lawful responsibilities because of unreasonable injunctions. Some of the injunctions are destroying this country and are contrary to the spirit of patriotism.” What he said there represents the concerns of many people regarding the negative impact of injunctions, if improperly granted.

Some commentators have viewed the President’s remarks as an attack on the independence of the judiciary in the country. Do you agree?

I do not agree that the President’s remarks are an attack on the independence of the judiciary. I followed the discussion and debate on this matter in your newspaper, especially the comments by our learned colleagues from the legal fraternity and academia. It is a sad thing that the remarks were extracted from their context and interpreted as an attack on the Judiciary.

The remarks were made by way of advice to the new judges and he made them on the basis of facts as they exist on the ground. There are cases which we have handled in this ministry which would bear testimony to the remarks made by the President.

What are some of these court cases that your ministry has come across from where the President might have drawn his concerns?

There are many cases which I can give you by way of examples. For example, there is a case where the government decided to terminate the contract for lack of performance by a contractor.  The court issued an order of injunction preventing termination; the plaintiff has used the injunction not to pursue the matter further.  In the meantime the contract was not performed in accordance with the timelines issued by the donor fund, Africa Development Bank [AfDB], who subsequently pulled out the funds from a project.  The Supreme Court overturned the decision that granted the injunction but, by then, the funds were already withdrawn and the project which was for public use remains unfinished.

In another case, the applicant challenged the decision to bring him back to Malawi from foreign service and was unsuccessful in the Principal Registry; he commenced similar proceedings in the lower court and was granted an injunction ex-parte when clearly the case was an abuse of court process.  The government by virtue of the order of injunction was compelled to continue maintaining him as a diplomat when such funds could have been used elsewhere.  Upon an inter-partes hearing to set aside the order of injunction, the plaintiff’s case was dismissed for lack of merit but after a waste of resources.

The list is endless. I can go on and on. There are cases where permanent injunctions have been granted which have made it difficult for the revenue authority to collect taxes. Attempts to have such injunctions vacated remain elusive and government has been deprived the much needed revenue. In cases of revenue, there is need for speed so that funds are not locked up in court cases.  There was an occasion when government was stopped from conducting a forensic audit because of an injunction. An employee suspected of corruption could not be suspended because the court granted an injunction.

Now, how is your ministry striking a balance between granting people’s rights to access justice as enshrined in the Constitution but also ensuring that it serves the interests of government effectively on legal matters?

Governments are indeed there to serve the people. In any community, there are bound to be clashes of interests in the exercise of rights. As a ministry, we provide legal services to the whole government machinery and also to the most vulnerable citizens in a transparent and accountable manner in order to ensure a just, fair and democratic society. Our mission is to promote the rule of law. We therefore get concerned when court processes are abused to the detriment of other stakeholders in our society, including as a tool to frustrate government efforts in developing projects. We also strive to ensure that individual rights must not be an impediment broader Government programmes.

On access to justice, my ministry is working closely with the Judiciary in bringing the courts to the people. In this respect, we are in the process of implementing the Local Courts Act which will be responsible for meting out justice in the local and remote parts of the country. We are interested in streamlining the procedures which make it difficult for the ordinary man and woman to access justice.

Any last words?

I would like to say that the judiciary like any other arm of government is accountable to the public and is not immune from constructive criticism or fair comments. Therefore, the erroneous belief on the part of those who claim to be learned in law that fair comments or observations by the Head of State or any citizen  for that matter, regarding the conduct of the Judiciary constitutes an attack on Judicial independence, have no place in any democratic society.  I would, therefore, like to advise members of the legal profession who jump to unjustified conclusions whenever fair comments are made about certain judicial decisions not to be averse to criticism.  If anything the learned members of academia or the legal profession ought to be at the forefront in critiquing judicial decisions through well-researched articles on those decisions.  In that way they would offer the members of the Bench much needed insight on the impact and correctness of judicial decisions. n