Making justice cheaper

Recently, Parliament passed the Courts (Amendment) Act, which brings some changes in the operations of the High Court. Our Reporter ALBERT SHARRA caught up with Malawi Law Society (MLS) president John Suzi-Banda to explain the relevancy of these amendments to Malawi.

Q

:How significant are the proposed amendments to the Court Act in the delivery of justice in the country?

A

: They are very important because the enactment of the Courts (Amendment) Act shall make access to justice in Malawi cheaper, fairer and more efficient. We are happy that President Peter Mutharika has since assented to the Act. This is a good development and we are sure it will improve our justice delivery system.

Q

: What difference should court users expect from the law?

A

: There are a number of changes these amendments are bringing in the Courts Act, but so essential is that the Act introduces specialised divisions of the High Court of Malawi. They are bringing four divisions—the Commercial Division, the Criminal Division, the Family and Probate Division and the Revenue Division. More critically, the Act clarifies that the Civil Procedure Rules applicable before the High Court shall be developed locally at the behest of the Chief Justice.

Q

: For over 50 years, Malawi has been using the Civil Procedures Rules developed in 1965 and used in England and Wales. What implication does this have to justice delivery in Malawi?

A

: The Act has indeed clarified that the Civil Procedure Rules applicable before the High Court shall be developed locally at the behest of the Chief Justice. You will recall that for years, the Rules of the Supreme Court of England and Wales of 1965 were the primary civil procedure rules being applied before our High Court now. However, while we still use them, there were civil procedure reforms in England and Wales that took place between 1996 and 1998. These reforms necessitated reforms to our own civil procedure to ensure that it is localised to be relevant.

Q

: The proposed ammendments to the Courts Act have maintained powers for the Chief Justice

to promulgate Civil Procedure Rules. What does this mean to you in terms of localising the powers in the justice system?

A

: The Courts Act has always given power to the Chief Justice to promulgate civil and criminal procedure rules. The Courts (Amendment) Act has retained this power. This is important because in the development of the procedure rules, the Chief Justice shall always take into account the local context.

Q

: Malawi is still haunted by delayed justice, whereby judges take ages to deliver their verdicts. Is there any hope that the amended Court Act addresses this?

A

: The Chief Justice shall be promulgating new civil procedure rules following the assent of the Courts (Amendment) Act by the President. Under the draft rules, there shall be time limits for the delivery of judgements. A High Court Judge shall have up to 120 days to deliver a judgement following the conclusion of a trial and the filing of written submissions by the parties to a case.

We are sure that this will address the tendency that is among some High Court judges who sit on their judgments and say I will make my ruling when I want. The maximum period now will be four months and if he or she fails to do so within this period, it will be a violation of the Courts Act.

Q

: Beyond the amendments, what else do you think Malawi should do to ensure justice is accessible to all and delivered in time?

A

: The reforms to the justice system that have been undertaken so far are welcome. However, there still need for more work to be done. The lawyer-citizen ratio in this country remains deplorable and unacceptable. There are only about 400 lawyers or so with valid practising licences against a population of around 17 million. This is not attractive by any standards.

Additionally, there is need to provide court infrastructure to the masses. There is still need to recruit more magistrates and more appoint more judges. Our prisons need to be decongested and we also need to develop a culture of alternative dispute resolution.

Q

: Anything  more?

A

: As MLS, we applaud Parliament for passing this law and the president for assenting to the Courts (Ammendments) Act. We have for a long been lobbying and advocating for the amendment of the Courts Act because it was becoming irrelevant with the changing times. While the promulgation of local civil procedure rules is not a panacea to all the challenges faced by our justice system, we believe the local rules, if adhered to, shall go a long way in alleviating some of these challenges. The MLS shall continue to advocate for improvements to the justice system with a view to ensuring that it lives up to the demands and expectations of the public in Malawi, which it aims to serve. The law is surely not a finished product. We should, as a nation, continue reviewing our laws in line with continuously changing environment in which it operates while drawing on lessons learnt over the years of its use. n