Malawi Law Society (MLS) has raised “serious concern” with the 21-year period it took the Judiciary to conclude the appeal case involving the Reserve Bank of Malawi (RBM) and the Attorney General against Finance Bank of Malawi.
In a statement issued on Wednesday signed by the society’s chairperson Davis Njobvu and honorary secretary Francis Mmame, MLS also expressed urgent need for the court to expedite the delivery of its “reasoned and perfected” full judgement, saying without it, the society is unable to provide substantive commentary on the case.
On February 3, the Malawi Supreme Court of Appeal (MSCA) declared that the High Court’s move in 2005 to revoke Finance Bank of Malawi’s licence was illegal.
The Supreme Court further ordered RBM to pay damages for loss of business to be assessed by the Assistant Registrar.
But in its statement, MLS said it has received numerous requests to comment or clarify the court order.
“The MLS is unable to provide substantive commentary on the MSCA’s decision at this stage as the court has not yet released its reasoned and perfected judgement.
“The MLS will provide further commentary, if necessary, once the full judgment has been delivered,” said the society.
The society further noted that the High Court judgement addressed numerous factual issues and was based on evidence from six witnesses in which the trial judge upheld the actions of RBM and the Minister of Finance after a detailed evaluation of the evidence.
However, it said the Supreme Court order is only a minute order and does not contain an analysis of the grounds of appeal or the arguments advanced.
“Such analysis would ordinarily explain the legal reasoning underpinning the decision to set aside a comprehensive High Court judgement grounded in extensive factual and legal findings.
“The MSCA’s order does not award Finance Bank damages for loss of business profits, contrary to reports circulating on social media,” added the statement.
It also said the Supreme Court’s decision is final and binding on all parties and all courts below it, as such, there is no right of appeal.
But the society said the Supreme Court itself may review its judgement in accordance with its own practice and the practice of the Court of Appeal in England.
The society called upon President Peter Mutharika to expedite the appointment of the Judicial Service Commission and the Public Appointments Committee of Parliament to appoint the Independent Complaints Commissioner for the Independent Complaints Commission of the Judiciary.
Judiciary spokesperson Ruth Mputeni asked for more time before commenting on when the full judgement would be released.
Asked to indicate when the President would appoint the Judicial Service Commission,
State House press secretary Cathy Maulidi said the process is underway.
“The President appreciates the importance of having the Judicial Service Commission fully functional. I can confirm that the process to appoint members of the Judicial Service Commission has started and once this is completed, you will be notified,” she said.
Njobvu. |
Meanwhile, legal experts The Nation talked to have called on the Judiciary to improve justice delivery by ensuring cases are concluded within reasonable timelines.
Catholic University of Malawi dean of law Professor Clement Ng’ong’ola said the courts need to deal with delays to conclude cases, wondering what they have been doing about it.
“In other countries there are case management systems, where the progress of the case is followed from the time people have filed and the file is assigned to a judge and the judge knows that he has timelines within which to act.
“Obviously, I share the concerns. [21] years is too long,” he said.
Private practice lawyer Shepher Mumba of Golden and Law said the delays impinge on Section 41 (3) of the Constitution, which provides that “Every person has the right to an effective remedy by a court of law or tribunal for acts violating the rights and freedoms granted to him or her by this Constitution or any other written law.”
He said for the right to access the courts for effective remedy to be realistic, the remedy must be provided within a reasonable time, arguing, the delays serve to negate this right and make it merely an illusion.
“In matters involving commercial transactions, it means that nothing can move and some businesses grind to a halt as matters pend before the courts for judgements.
“First is to deal with the problem of resources. There is also need to emphasize on time limits, which must be adhered to by both the litigants through their lawyers and also the bench,” he said.
Another private practice lawyer Benedicto Kondowe said for litigants in civil matters, delays may lead to compensation covering periods during which a judgement could reasonably have been rendered, thereby exposing the judgement debtor, sometimes a public institution, to a heavier economic burden.
For criminal matters, he said this can have more serious consequences, including situations where individuals serve jail terms when they might ultimately have been acquitted.
Said Kondowe: “The response must be systemic and constructive. This includes strengthening judicial capacity through timely appointments, improving case management systems, enhancing digital court processes and ensuring adequate funding.
“With coordinated institutional reforms and shared responsibility among all justice sector actors, the pace and efficiency of justice delivery can be significantly improved while safeguarding judicial independence.”
After the Supreme Court judgement, Attorney General Frank Mbeta told The Nation that his office will wait until Finance Bank serves them with documents on the assessment, but would “rigorously challenge it”.
Attempts to get a comment from the Ministry of Justice and Constitutional Affairs spokesperson Frank Namangale proved futile as he had not reverted with answers to our questionnaire by press time despite promising to do so.
The case started in the High Court of Malawi Commercial Division in May 2005. The bank counterclaimed for loss of business following its closure.
In October 2014, the High Court awarded RBM K13 million and dismissed Finance Bank’s counterclaim.
Finance Bank was opened in 1995 and after its licence was revoked in May 2005, it briefly reopened under the central bank’s strict supervision before formally closing in January 2006.
