Court delays mar justice

For over seven years now and counting, Mary (not real name) has been waiting for justice from the Industrial Relations Court (IRC) following the termination of her employment contract in 2012.

Mary, alongside her former workmates, went to the IRC to seek redress as they felt their dismissal was unfair.

But the turning wheels of justice have frustrated their efforts as in most cases, their case is not heard either because of the absence of the chairperson, deputy chairpersons or panellists that form a complete court sitting.

The case of Mary and her colleagues is one of the many dragging for years at the court established to speed up disposal of labour disputes.

While some have died in the course of waiting for justice, Mary and her colleagues are hopeful of getting justice while they are still alive.

But the Malawi Congress of Trade Union (MCTU) feels the delays are defeating the objective the IRC was established to achieve.

The IRC was established under Section 110 (2) of the Constitution and has jurisdiction over labour disputes and issues relating to employment.

In a telephone interview on Tuesday this week, MCTU secretary general Denis Kalekeni expressed concern with the delays, saying such developments are exploiting people.

He said: “The reason why the IRC was established was to give priority to labour cases. So, when we reach the current status, then the whole idea of having the IRC is being defeated. Labour cases should not take time and this is why the IRC was established.”

Kalekeni, who said they acknowledge resource constraints at the IRC, suggested the creation of registries in the country’s 28 districts to cut the distance covered and expenses incurred by complainants.

In a separate interview, Employers Consultative Association of Malawi (Ecam) executive director George Khaki emphasised the need for a discussion between employers, employees and the IRC to isolate the challenges being faced and find a lasting solution.

“We also need to have an intermediary to solve issues before they can reach the IRC. Currently, the labour offices are not effective in arbitration and conciliation. So, if we focus on arbitration and conciliation, fewer cases will go to the IRC,” he said.

In an interview on Monday this week, IRC assistant registrar Innocent Nebi said currently there are 9 352 outstanding cases, including some dating back to 2012.

He attributed the delays to a number of issues, including composition of the court, rules of the court, underfunding and understaffing of both judicial officers and support staff, among others.

Said Nebi: “On composition of the court, a court cannot sit without panellists and most of these panellists are employees elsewhere where they are committed to and are rarely available. Also, on rules of the court, the way the system was designed makes it tough.

“The system was not designed for a quick resolution of disputes. For example, before coming to the IRC, people have to go through the labour offices and there may be delays starting from there.”

He said the IRC registers between 1 400 to 1 500 cases annually and that the court’s management has since met the Chief Justice (CJ) to discuss the challenges the IRC is facing where recommendations were made.

Nebi said that during the meeting they recommended that either the panellists be completely removed or beefed up to ensure availability, increase the number of judicial officers, and also give freedom for people to choose whether their cases should be heard either by a chairperson or his deputy alone or together with the panellists.

While saying they engaged the Ministry of Lands who have provided a building in Zomba which is set to be inspected next week, Nebi said by March 2021, they may start hearing cases from the Eastern Region in the provided infrastructure.

Currently, there are three registries in Blantyre, Lilongwe and Mzuzu. In Blantyre and Mzuzu, there is one deputy chairperson while in Lilongwe there are two deputy chairpersons who help hear cases together with the panelists.

However, the chairperson, Chimwemwe Kamowa, was appointed High Court Judge in March this year and her seat still remains vacant.

While saying the vacancy has not affected hearing of cases since deputies are there, Nebi said a new chairperson will be appointed by the CJ on recommendations from the Judicial Service Commission.

On the criteria to list the cases, he said: “We normally mix the approach, that’s a first-come-first-serve basis and we also see the nature of the cases brought before the court. For instance, some cases involve the elderly and we may prioritise such cases. So, it depends on the cases.”

However, he said he could not estimate how long it would take to clear the 9 352 outstanding cases if no new cases are brought before them. He only indicated that their aim is to have cases concluded over a six-month period.

On their proposed budget for the IRC in the 2020/21 fiscal year, Nebi said they had an estimate of about K100 million, but the budget ceiling they received was K80 million.

The priority in the IRC budget, among others, was to establish a registry in the Eastern Region, a move aimed at clearing the backlog of cases.

As of Monday, according to Nebi, 1 163 cases were recorded with 663 registered in Blantyre, 318 in Lilongwe and 120 in Mzuzu. Out of these, 424 have been concluded with 300 from Blantyre, 76 from Lilongwe and 27 from Mzuzu.

Currently, there are 20 panellists, 10 representing employers and another 10 for employees. They get K10 000 each per court sitting from a revised K2 000 last year.