Judiciary faulted on child poverty

The Judiciary has come under the spotlight for fuelling poverty among children whose parents divorced through alleged institutional corruption which is more pronounced in child maintenance cases.

In a survey published in the Malawi Journal of Social Science by the University of Malawi (Unima), the researchers have outlined how numerous and inconsistently applied laws, broad discretionary powers of judicial officers and inadequate institutional accountability measures worsen the situation.

Titled ‘Determinants of judicial corruption in Malawi: A case study of child maintenance claims at Nsanje Magistrate’s Court and Zomba Child Justice Court’, it was co-authored by Bernadette Malunga and Theresa Chome from the Private Law Department at Unima.

The researchers noted that the amount of maintenance and items the courts can order as child support is at the courts’ discretion, thereby resulting in lack of consistency.

Reads the report in part: “For instance, the court can collude with either party to order higher amounts of maintenance in cases that do not deserve such amounts or, indeed, collude for the court to order lesser amounts in cases that deserve higher amounts.

“Most of the claimants in the maintenance study lamented that the maintenance orders were too low and inadequate to serve the needs of the children. The claimants suspected collusion between the courts and the respondent or non-resident parent.”

At Nsanje Magistrates Court, all the 77 cases reviewed except one had monetary awards, one had a combination of monetary and material support and the highest amount awarded was K40 000 a month while the least was K10 000.

However, it was noted that the Zomba Child Justice Court awarded material and cash child support. The material support included school fees, groceries, clothes, medical facilities, food-stuffs, soap, diapers and bags of maize.

Said the authors: “The country would do well if it developed regulations for minimum payments or items that can be provided for each child maintenance claim.

“This would help deal with any room for abuse of discretion and collusion, which can be bedrock for corruption.”

The researchers further noted that a lack of harmony between the Constitution, the Marriage, Divorce and Family Relations Act and the Child Care, Protection and Justice Act in terms of the definition of a “child” create confusion regarding who is or should be the subject of child maintenance.

Reads the report: “The lack of uniformity could lead to the judicial officers picking and choosing laws to apply, leading to considerable disparities in the type of court maintenance orders. Complex and burdensome laws leave court users with no option but to pay money to avoid them.”

There are also inadequate institutional accountability measures due to lack of enforcement of court orders

and burdensome processes, missing court files and perceived corrupt practices in the courts, according to the findings.

In an interview on Thursday, Malawi Law Society (MLS) honorary secretary Gabriel Chembezi said the revelations require urgent attention, arguing that this was the reason they are taming errant lawyers to curb corruption in the Judiciary.

He said: “If the statistics in that paper regarding the state of corruption concerning judicial services are anything to go by, then constitutionalism, law enforcement and its nation-building purpose is at stake and at high risk.

“You have seen the MLS discipline its members, but they don’t act alone. So, as we try to clean the mess on our part, it is important that the bench also disciplines its officers, because we have laws, so this has to be clear.

“Subordinate courts have to also take note of the fact that the vagrancy laws were set aside and, therefore, some of these cases that come to them have to be simply thrown out because such laws were declared unconstitutional laws.”

In a separate interview, Chamkakala said while they do not have a specific timeline for the consultative processes, they are mindful of the court’s given time-frame.

On when his office will formally write the court to acknowledge the ruling, Chamkakala said: “This can be any day. But from my understanding, we will be working with the committee”.

Reacting to the resolutions between the committee and the DPP, Salc criminal justice cluster lead Chikondi Chijozi said the expectation is that those that were tasked to review the section will take into consideration the court’s given timeframe.

The court order stated that failure to amend the section will continue creating problems for the Judiciary. The ruling followed a judicial review case number 28 of 2018 of Henry Banda and two others versus the State in which they were challenging sweeping exercises that were declared unconstitutional.