Judges under surveillance

The Office of the Ombudsman has instituted investigations into complaints lodged by 69 individuals whose cases have stalled in courts without proper justification, some dating back to 23 years ago.

But Chief Justice Rizine Mzikamanda said in an interview this week that apart from the Judiciary putting in place measures and mechanisms to ensure speedy delivery of judgements, Parliament passed into law the Courts Act that mandates judges to deliver rulings within 90 days failing which they will be disciplined.

These developments come against the background of continued public discontentment over delayed justice in the courts in spite of repeated assurance from the Judiciary of putting in place strict measures for speedy justice delivery.

As of 2019, about 6 766 people seeking justice through the Industrial Relations Court alone were yet to know their fate. Some of the cases were recorded at the court in 1999, according to published reports.

Office of the Ombudsman’s public relations officer Mandy Pondani said in an interview that of the 69 cases, 34 files with the complaints are being handled by their head office in Lilongwe, nine at the Southern Region office while the Central and Northern regional offices have 18 and eight, respectively.

Said Pondani: “The Office of the Ombudsman currently has 69 cases under investigations, where the respondent is the Judiciary. Some of the cases date back to 2 000. The cases are undergoing various complaints-handling processes in accordance with case-handling procedures within the office of the Ombudsman.”

She, however, said the office was in continuous engagement with the Judiciary on the matters and has since made progress towards resolving the stalled cases.

According to Pondani, all the complaints lodged with the Office of the Ombudsman are on civil matters and the cases in question are part of the routine complaints-handling the office carries out.

But Mzikamanda declined to disclose mechanisms his office  has put in place, describing them as internal, but he insisted that they were making headway in clearing the backlog of the cases.

On the law, Mzikamanda said: “It is a matter of law and those 69 outstanding cases happened before this law. So, I am calling on others who have information on stalled cases to come forward and I will ensure the cases are checked to address these shortfalls. I will make sure they are dealt with.”

In May last year, the Chief Justice gave 90 days to  judges with outstanding judgements to clear them or face disciplinary action.

This came a few months after a leaked document revealed that one judge had 93 cases pending before her as of December 2021.

The list showed six cases which had been in court since 2012. These included Civil Appeal 114 of 2012, which was awaiting date of hearing of an application to dismiss action for want of prosecution and discharge injunction, Personal Injury Cause Number 896 of 2012 which was also waiting for ruling on an application to dismiss action for want of prosecution and Civil Cause Number 83 of 2012 which was also waiting for ruling on an application to dismiss action for want of prosecution.

They also included Civil Cause Number 330 of 2012 which was awaiting judgement on an appeal to a judge in chambers. The last hearing of the matter took place in March 2014.

There was also Civil Cause Number 4 of 2012 which was awaiting judgement on an appeal after it was last heard on May 2017 and Civil Cause Number 499 of 2012 which was also pending judgement.

There are also other cases that have stalled in the High Court Commercial Division in Blantyre such as Commercial Case Number 283 of 2016. The parties have been waiting for judgement, whose date is yet to be set.

In 2021, Weekend Nation reported of a case recorded by the court in 1993 under Civil Cause Number 395 involving a former parliamentarian Muhammad Kulesi versus Royal Insurance Company. The case took about 27 years without judgement.

Legal Affairs Committee of Parliament chairperson Albert Mbawala in an interview said it would be pleasing to note the Chief Justice living up to his word because the issue of delayed cases and judges delivering judgements within 90 days remains thorny.

Said Mbawala: “The problem has been enforcement so if the Judiciary has put up mechanisms to enforce that provision to deliver judgements within 90 days, as Legal Affairs Committee, we will be very delighted.

“It has been our concern as well because justice delayed is justice denied. So we would want Malawians to get judgements on time. As a committee, we have been engaging the Judiciary but they have always been coming up with excuses.”

Human rights lawyer Ruth Kaima described the cases of delayed justice as unfortunate and a demonstration of gaps that exist in the justice delivery system, which have not been addressed for a long time.

“This basically means so many rights and laws have been violated because people are failing to get redress from the courts that are not responding fully by way of speedy conclusion of the matters,” she said.

Kaima, who is also litigation officer for the Centre for Human Rights Education Advice and Assistance (Chreaa), noted it was worrying that some criminal suspects wait for years on remand before trial begins.

Human rights activist Robert Mkwezalamba said people go to courts for speedy redress of their situations and if their cases take forever the status quo remains the same.

Mkwezalamba, who has been part of panels at the Industrial Relations Court before, has since appealed to the judicial officers to be accountable.

“It is surprising that at the moment judges are rushing into getting new cases yet they have in their trays cases dating back to 20 years ago. That is why we have been advocating for the revamp of the case management system which would track old cases and flag out the lazy judges,” said Mkwezalamba, who is the chairperson of the Human Rights Consultative Committee.

He also urged authorities to advocate and enhance alternative dispute resolution settlement mechanisms to ensure that people have structures at community levels to address their concerns instead of rushing to courts that are already overwhelmed.

In September last year, the Malawi Law Society (MLS) appointed a special task force to investigate alleged injustices at the High Court of Malawi in Lilongwe following alleged and an unjustified trend involving court users and judges.

However, according to MLS President Patrick Mpaka, the probe was discontinued after the registrar of the High Court issued a strong letter disapproving the society’s effort to investigate delayed cases describing it as “an effort bordering on interference with the independence of the judiciary.”

In his End-of-Term report for 2021-2023 which he presented during the 2023 MLS Annual General Meeting (AGM) in Mangochi, Mpaka told members that the Judiciary protested the move after the special task force directly engaged three judges.

The issue of the allegations was also brought to the Legal Affairs Committee of Parliament to inquire as mandated by Section 26 (1) of the Legal Education and Legal Practitioners Act.

But Mbawala said when the issue was brought before his committee they summoned the Chief Justice and it was revealed that there are no mechanisms of disciplining judges.

“He came to Parliament with his team from the Judicial Service Commission and when they were quizzed, it was discovered they don’t have any mechanism of disciplining wayward judges.”

However, Mbawala said the solution lies in a yet-to-be-finalised bill that would strengthen the Judicial Service Commission to “have powers to discipline the wayward judges”.

He said: “So we asked for fast-tracking of the bill for the committee to scrutinise it and see if the provisions of disciplining judges have actually been put in there. So the position now is that the bill has not yet been finalised. But what we need is the committee to push for it to be finalised.”

During the Judiciary’s 2017 Sherry Party, tired with the delays, former MLS president John Suzi-Banda wore a brave face by challenging the judges to stop creating excuses for delays in judgements’ delivery, arguing that the practice was a threat to the long-term legitimacy and efficacy of the institution.