LMC’s special court puzzle

• Experts say special crimes court welcome, but resources needed

President Lazarus Chakwera may want a specialised court to quickly prosecute financial crimes, but resource constraints as well as legal and procedural hurdles could derail the desired set up.

The current budget for the Judiciary at K14 billion did not envisage the specialised financial crimes court; hence, did not include any funds.

However, the backlog of corruption cases in courts and public exasperation over the state of the fight against corruption could birth a new specialised court to handle financial crimes.

Several legal experts have since backed the calls for a specialised court which appears to be getting traction in the corridors of Capital Hill which recently organised a meeting between Minister of Justice Titus Mvalo and Chief Justice Andrew Nyirenda alongside officials from the ministry and Judiciary to draw a roadmap for the operationalisation of the plan.

In his speech on the Covid-19 funds audit findings last Sunday, Chakwera said he had directed the Minister of Justice to engage the Chief Justice on the support that the Judiciary may need to expedite the cases related to the K6.2 billion Covid-19 funds and other cases related to theft of public resources.

In an interview, High Court and Malawi Supreme Court of Appeal registrar Gladys Gondwe confirmed the meeting attended by among others, the minister, Solicitor General and Chief Justice.

She said: “I can confirm that the meeting took place. The calls are not new. There have been discussions around. We have been banging heads to look into requirements for operationalisation. We looked into a roadmap on what would be required, there is an amendment to the law. We also look at beefing up numbers so that we don’t cripple other divisions by creating this division.”

Gondwe further said creating such a court will need both judges and members of staff as well as funding.

“We are working on a budget for the issue. We will need more office space. Ideally, it will have to be across all the registries–Blantyre, Zomba, Lilongwe and Mzuzu. All those factors we have talked about will determine availability. There is quite some work to be done but we are determined as Judiciary to roll,” she said.

In the short-term the Judiciary and justice officials are considering dedicating judges to preside over the cases as was the case with Cashgate trials, Gondwe further confirmed.

She said: “It’s a possibility. We have done it before with Cashgate cases. It is an option in the short-term. To identify number of judges within the criminal division to dedicate themselves to these cases, it’s something we have done before with Cashgate. We can do it again.”

The implementation may take some time, though, thanks to the financial, administrative and legislative requirements crucial to the operationalisation.

The exact amount required to pull off the idea is still being worked out by officials but the High Court and Supreme Court of Appeal currently costs the taxpayer K3.6 billion and K10.7 billion annually.

The Commercial Division alone costs K596 million to run but establishing a new division will cost more as it involves more procurements.

A new court would require new office space, judges, support staff, furniture, vehicles and other administrative and logistical requirements.

The proposal will also require amendments to the law requiring both time and funding, experts say.

Among others, the special court could potentially prosecute financial crimes including the abuse of office cases emanating from the Covid-19 funds audit investigations, abuse of office by current and previous administrations and several cases yet to be completed from the 2013 Cashgate scandal.

The developments come amid growing public unrest over increased corruption and abuse of public resources in the country despite change of governments—a scenario blamed for continued under development and failure to tackle worst forms of poverty decades after attaining political independence.

Former Justice Minister and Attorney General Ralph Kasambara is among the proponents of the proposed special court.

Writing in the wake of Chakwera’s directive, he proposed several measures to ensure speedy trial such as amending sections 2 and 6A of Courts Act to create a Financial and Economic Crimes Division of the High Court to handle all financial and economic crimes.

Kasambara further argued that the special court will require new criminal procedure rules or protocols or practice directions and said the Chief Justice should immediately identify judges well-versed in criminal procedures to be deployed to this newly-established division and the authorities to speed up recruitment of more judges and formulation of appropriate budget.

He argued: There will be need to recruit private lawyers to be engaged to complement the prosecution capacity of the office of DPP and recovery of all stolen abused or misappropriated public funds.”

T h e Pr e s i d e n t ’ s speech put on notice heads of prosecuting and investigating agencies to ensure that the cases are also expedited and no culprits go scot-free.

Some 61 people have so far been arrested in connection with the scandal.

According to the Journal of Law, Policy and Globalisation, “Special or specialised with special knowledge of and expertise in a particular area of the law, court, division of a court, tribunal or task force that specialises substantially, though not exclusively in corruption cases”.

Special courts come in a variety of forms such as special branches or divisions of existing courts, others are established as separate, standalone units within the judicial hierarchy.

In addition, some countries have adopted a hybrid system in which the special court can serve as a court of first instance in some cases (usually in more significant cases) and as an appellate court in other cases. The two notable examples in this category are the Philippines and Uganda.

Another example of a special court is the Special Anti- Corruption Court of Kenya, which was established under that country’s Anti-Corruption and Economic Crimes Act of 2003 and is presided over by a special magistrate to prioritise corruption cases.

In an interview, private practice lawyer John Gift Mwakhwawa welcomed the proposal for a special court, saying judicial officers at the court will eventually attain specialisation that will enable them to deal with financial crimes effectively and timely.

He said: “You cannot take away the benefit of specialisation. There might be certainty of skill set that the court will develop overtime which, in turn, might speed up matters. You deal with the same issues over time and you become an expert and the time you take to dispose a matter.”

On his part, veteran prosecutor Kamudoni Nyasulu, while welcoming the proposal, called for an analysis of why the current court set up has not been adequate to handle financial crimes plus other criminal cases.

He said: “Any decision at national level must be based on evidence. You get a lot of claims about adjournments, but has anyone looked at the matter critically to see what the problem is? What is required is critical case management. How much court space is being utilised per day, how much judge time is being utilised per day?

“When Cashgate started, all cases were given enough judges. Not that you don’t need a special court, but at the moment, with the current judges, has it been shown that they cannot handle the workload? How many cases have been taken to court but are failing to finish because the judges are busy?”

President Chakwera, just about 10 months in office, has vowed to stem wastage and abuse of public sector resources by prosecuting anyone responsible.

Apart from the impending Covid-19 funds prosecutions, the country is still grappling with a backlog of court cases from the 2013 Cashgate scandal. The Judiciary expects more cases after the President order last Sunday of new audit investigations into past public expenditure on Covid-19 and also infrastructure developments.