Ode to a colossal figure

Chief Justice (CJ) Andrew Nyirenda is finally retiring having clocked the mandatory retirement age of 65. He is a colossal figure in the country’s recent history—from certifying the presidential election constitutional case, reporting the Thom Mpinganjira bribery case to the Anti-Corruption Bureau (ACB) and finally standing up to the Peter Mutharika administration when it attempted to decimate the Judiciary attempting to remove him and Justice Edward Twea from office.

He won. Mpinganjira is serving a long prison sentence. He and Twea leave at their own accord. Mutharika can cry wolf all he wants about his oust from power being a ‘judicial coup’—but only do so now as an ex-president.

So, enjoy your retirement chief, an independent Judiciary and a democracy protected will forever be part of your legacy.

In the truth telling business, however, there are always two sides to a coin. Wish as we may, still none can hide the fact that the Judiciary, celebrated as it is, has been a major weak link in the fight against corruption. Our justice system in which the Judiciary is a main player, has been underwhelming in the fight against corruption.

There have been too many cases that take long—a product of both the Judiciary and prosecutors (let’s deliberately leave out the defence)— in a number of many high profile cases. Confidence, therefore, in the fight against corruption was grossly undermined.

There have also been mindboggling rulings and orders. For example, a judge stopping the ACB, through an injunction, from investigating a corrupt businessman, a judge granting bail to a convict pending appeal (while many poor people languish in prisons still waiting for a day in court), that have left many shaking their heads.

But it’s the justice delayed that has hurt the reputation of the Judiciary most. Mpinganjira’s case was dispersed with speed, but the majority of 2013 cashgate cases involving well-known names such as Paul Mphwiyo and Ralph Kasambara have taken forever. A baby who was born when the ACB arrested former president Bakili Muluzi will be eligible to vote in three years’ time, yet the case is still in court.

The explanation that so many factors are involved; hence, the court should not take the blame doesn’t add up. Stalingrad approach by lawyers is always mentioned as a factor, but didn’t the Democratic Progressive Party (DPP) and the Malawi Electoral Commission (MEC) lawyers attempt to prolong the election case? Didn’t Mpinganjira’s lawyers attempt to delay the case as long as possible?

What is clear from the speeded cases is determination. When cashgate broke, the Judiciary made an administrative decision to dedicate a number of judges to deal with the cases. Why can’t there be a similar approach to all corruption cases pending establishment of a full financial crimes court?

The staffing and resource challenges might not be entirely a Judiciary problem, but the outgoing CJ must consider it a personal failure for failing to convince government to ensure more judges, magistrates and support staff were employed to tackle the biggest pandemic facing Malawi today, corruption.

Trust me, Covid-19 might have done damage to the economy and taken our beloved ones to early graves, but corruption has done more damage. Babies die at birth because of inadequately-resourced hospitals, mothers who die giving birth, people who perish on our terrible roads, all who die from preventable and treatable diseases because poverty forced them to live in conditions that make them susceptible to diseases and hospitals fail to treat them because they are underfunded—all these and more suffer from corruption-induced deaths.

The Judiciary should look itself in the mirror and see if it believes it has done enough. But we also know the rest of us have not helped matters. There are just too many cases for the courts to deal with. Firstly, funding levels are low and the Corrupt Practices Act (CPA) doesn’t mete out the most stringent of deterrence.

So, there is work cut out for the next chief justice by ensuring the Judiciary responds to the corruption pandemic facing our society. In a country where the cancer of corruption has left no sector untouched, the next CJ, as the wigged men and women calls him, must also ensure its own ranks is clean. Happy New Year folks!