Judiciary: Our Last Remedy

Author's note: This article was initially published in the Daily Times of 5 September 2011...

In a society where people increasingly seek redress from the courts of law, wielding the blade of justice is a responsibility not to be undermined by anyone. It takes a great deal of soberness and concentration for a judge to reach the conclusion of a case. That is why these men of the bar are always urged to avoid answering to any personality in the course of their duties; but to tread carefully in matters of justice.

Of late, courts in Malawi appear to have become very hectic units where cases continue flooding them like nobody’s business. Of particular interest are the injunctions which courts continue granting to different parties to maintain the status quo, or to provide interim relief in different scenarios.

You surely have to be less concerned about events taking place on the political and social arena in Malawi to be unaware of numerous injunctions that different people have obtained from the courts.

Take these instances: when government withdrew part of vice president Joyce Banda’s convoy, she obtained an injunction against the development and she was successful. Additionally, on the eve of the 20 July demonstrations, one concerned citizen Chiza Mbekeani was granted an injunction that stopped the Civil Society Organisations from going ahead with the protests.

There have been so many injunctions, again, in the University of Malawi (Unima) where lecturers and students at Chancellor College (Chanco) have sought interim relief from the courts of law in different cases. There are also ‘actual’ court cases involving different parties in Unima.

President Bingu wa Mutharika reached the point of urging everybody within Unima not to allow the university to be run by the judiciary. That was on 5 June when he delivered his speech which we ‘misconstrued’ was supposed to lead to normalcy in the university.

A quick paradox was to manifest itself soon after the president’s plea that the judiciary should not be allowed to run the university. In a peculiar twist of events, the very University of Malawi Council appealed against the High Court decision to grant interim relief to the four Chanco lecturers that the Unima governing body had earlier fired. Who was fooling who?

Another irony was observed in Mutharika’s recent attack of the judiciary where he ‘doubted’ their nationality. He, having not even a diploma in law, believes the judiciary makes dubious decisions simply because government seldom wins in court cases. Yet, the core of justice isn’t necessarily to favour government or any other party, but to bend towards the convincing argument.

How the president easily forgets. It was the same injunction that saved him from a probable impeachment when he was faced with stiff opposition in Parliament during his first term in office. But, it appears to be the nature of politicians to have selective memories.

It also seems to be the nature of politicians to be indefinably myopic when it comes to decision making. Mutharika assented to a passed bill which bars anyone from obtaining an injunction against government before an inter-parte hearing is made. Of course, this is solely aimed at serving the current administration, since the president himself has clearly shown that he is not comfortable with the numerous injunctions which are obtained against government.

But, in a fragile democracy as ours where you are not guaranteed of thriving in your position if you hold dissenting views, it is only a completely independent judiciary which can provide the last remedy. Yet, the president is on its neck, trying to sway it into government’s loins. But, thinking that these learned men of the bar can be easily moved by circumstances, would be insulting their prudence. They have always been known to operate in the realm of impartiality. That is where our last remedy lies.

In fact, before the president even thinks of attacking the judiciary, he should do some soul searching and first ask why Malawians are seeking recourse from the courts more now than ever before. It should inform him that somewhere somehow, things are not gliding in the right track. The solution is to realign those things that have missed the right track.

Take the instance of the impasse at Chanco. The judiciary would not continue running the university if the president meant it when he said on 5 June that there would be no casualties in the saga. But, because there is so much politics involved in the impasse, the courts will always come in to provide the last remedy if need be.

Our society has slowly evolved into one where the judiciary seems to have become the dominant entity when it comes to order. Our democracy is being sustained by courts of law. Thus, this arm of government should be allowed to be as independent as possible because that is where people now seek the last remedy.