Judiciary distress

The Judiciary says it requires about K500 000 to hear one case, which translates to K55 billion for the annual caseload of 110 000 cases.

But in the 2023/24 financial year, Treasury has only allocated K23 billion  or 0.6 percent of the National Budget to the institution.

This is according to Chief Justice Rizine Mzikamanda who says the trend has been the same for the past four financial years and is negatively affecting the Judiciary’s work.

This inadequate funding allocation is meant to cater for other recurrent transactions (ORT), personal emoluments and development.

Supreme Court of Appeal and High Court of Malawi registrar Kondwani Banda said in an interview last week that lack of resources also affects several areas of the institution but impacts heavily on operations of the Supreme Court of Appeal (SCA).

He said: “Whenever there is no funding the most affected is the Supreme Court of Appeal because of the nature of its operations. The Supreme Court sits in Blantyre so the justices are required to travel from Blantyre to other regions [Lilongwe and Mzuzu] for their sessions.

“We have four judicial regions which are South, East, Centre and North and to move the Supreme Court to other regions we need to buy fuel, pay allowances and accommodation for the judges, drivers as well as protection officers, so it’s not easy. How can we effectively deliver justice then?”

“Cancellation of sessions due to lack of funding means the rights of the people to fair trial are violated as per the dictates of the Constitution. The adjournments affect the citizens and they have the right to complain about delayed justices but then they don’t know what Judiciary is going through.”

Banda said the Judiciary, for example, cancelled some sessions last year including the murder case involving former Justice minister and Attorney General Ralph Kasambara because of lack of funds.

According to him, justices of the Supreme Court of Appeal and High Court are, among others, supposed to hold court assizes by travelling to places where incidents occurred, especially in criminal matters.

He also said for the SCA to operate effectively judges are supposed to have planning sessions to analyse cases and plan on how to execute them. These sessions usually take place out of office to avoid disruption.

“However, these planning sessions are no longer being held because there is no money. As it stands most of the SCA sittings are affected because the funding is too minimal.

Malawi Judiciary Annual Reports for 2021 and 2022 indicate that during the financial year 2020/2021, the institution only received 0.6 percent of the national budget instead of the 3 percent that it required.

During the 2020/2021 financial year, the national budget was pegged at K2.334 trillion, and the Judiciary was allocated about K14 billion.

The following fiscal year, Parliament passed K1.99 trillion but the Judiciary got 0.5 percent, which translated to K10 billion instead of K60 billion which it required.

Judiciary’s funding woes continued during the financial year 2022/2023 when it received 0.7 percent of the national budget which was about K20 billion instead of over K85 billion.

In the 2023/2024 fiscal year which is the fourth Tonse Alliance financial roadmap, Judiciary budget is pegged at 0.6 percent of the K3.87 trillion annual national budget. This means by end of the financial year Treasury will have given the institution about K23 billion.

Speaking at the organisation’s recent Sherry Party (the official commencement of the 2023/2024 Judicial Year) Mzikamanda lamented the inadequate funding as well as shortage of staff, particularly judicial staff.

“Our last count was that we have 301 judicial officers in this whole country who must share annually an overwhelming case load of about 110 000.

“This gives an estimated rate of one judicial officer to 365 cases, meaning that each judicial officer must sit every day including Saturdays and Sundays to hear and conclude one case. That does not sound humanly possible.”

For two weeks Treasury has not responded to our inquiries on funding challenges for the Judiciary, but the Parliamentary Committee on Legal Affairs said while the issue of inadequate funding was not strange, it is concerned with the situation at Judiciary which is negatively affecting delivery of justice in the country.

Chairperson of the committee Albert Mbawala said in an interview on Thursday that while they sympathise with the Judiciary, the situation was as a result of the economy suffering from a number of factors such as Covid-19, the Russia-Ukraine war and various cyclones including the devastating Cyclone Freddy.

He said: “As a committee, we are aware of these issues and we have been lobbying Treasury to assist, but they have their own challenges. There will always be delays in the prosecution of cases at the courts because they have no money for operations. You have heard of cases taking long time without being concluded and judgements taking years before being delivered.”

Malawi Law Society (MLS) honorary secretary Gabriel Chembezi in a brief written response said administration of justice was as much a public good as other public services listed in Section 13 of the Constitution and “it would be ideal that it [Judiciary] too is adequately funded as expressly prescribed in Section 13(m) of the Constitution.”

Human rights lawyer and law lecturer at the University of Malawi (Unima) Alexious Kamangila described the development as “sheer breach of duty by the State.”

He observed that failure to give Judiciary the minimum three percent of the national budget was a clear abrogation of State obligation to ensure access to justice under Sections 41 and 13 (m) of the Constitution.

“It is high time the State is held to account for this breach and so, as civil society, we have to speak for the Judiciary, to fight for adequate funding but in the minimum, the three percent of national budget,” said Kamangila.

However, the legal expert said it was also important to know the actual funding that directly goes into the delivery of justice.

“This is a key evaluation to make. And how much goes into magistrate courts which are the heart of delivery of justice?

“Finally, the level of inaccessibility of justice is beyond the level of inadequacy. And so, even in the diminished resources, the judiciary is failing to do what it ought to do.”

He added: “So, this has to be admitted and steps taken to urgently remedy the judiciary abrogation of duty while we fight tirelessly for its improved funding. Those efforts are symbiotic.”

Commenting on the issue governance and human rights expert Undule Mwakasungula also observed the chronic underfunding of the Judiciary has not only negatively impacted on the delivery of justice but also severely hampered the effective functioning of the institution.

In April this year, Banda told our sister newspaper The Nation that funding woes had forced the Malawi Supreme Court of Appeal to stop hearing cases since December 2022 and all cases that were scheduled were affected.

In his first State of the Nation Address (Sona) to the 49th Session of Parliament on September 4 2020, President Lazarus Chakwera, asked Parliament to give more funding to the Judiciary to enable effective and efficient administration of justice.