Everyone needs justice. Pastors, sheikhs, lawyers, police officers, judges and magistrates, and farmers, all of them need justice or will at some point in their life need principles of justice to smile on them.
While access to justice typically means having a case heard in a court of law, it can more broadly be achieved or supported through mechanisms that ensure that the access to justice is being done in a fare and equitable manner.
For access to justice to be equitable, there is need for other institutions to thrive. These include human rights bodies, office of the Ombudsman, police stations, courtrooms just to mention but a few.
In Malawi, some findings, however, show that access to justice is problematic in a number of ways such as lack of rights awareness and poor knowledge about the tools that are available to promote access to justice. Infrastructure to support justice delivery is also a big concern for the country.
This is despite the fact that the country’s constitution provides the need for government and its relevant department to ensure that all constitutional provisions related to justice access and delivery are being supported unconditionally.
Malawi’s constitution provides that every person shall have access to any court of law or any other tribunal with jurisdiction for final settlement of legal issues as a means of making sure that every citizen is enjoying the right to an effective remedy by a court of law or tribunal for acts violating the rights and freedoms granted to him by the same constitution or indeed any other law.
It further states that a person, who is detained, including sentenced prisoners, shall have the right to be informed of the reason for his or her detention promptly, in a language which he or she understands, all of these being done under conditions that are consistent with human dignity at the expense of the state.
Coming from a background of constitution with limited human rights provisions, the 1994 framers of Malawi’s constitution made it a point to indicate that as soon as it is reasonably possible, but not later than 48 hours after the arrest, a suspect has to be brought before a court of law to be told of a reason for their arrest.
But it seems in Malawi most access to justice arrangements are contrary to what the constitution and other international human rights bodies advocates.
People continue being detained for prolonged time in the country’s police cells before being taken to court. Mob justice continues being perpetrated by angry communities due to their discontent of the way law enforcers are handling cases.
The prisons are also an exception as suspects for various crimes including murder continue being remanded without being taken to court as there are no resources on the side of the Judiciary to try murder suspects.
For rural Malawians, access to justice, fair or unfair, remains a farfetched dream because most rural areas are not serviced by a court or a police unit to help administer justice among the poor. If available, the structures are in condition not befitting to be the outlet of justice.
In most cases, rural Malawians walk long distances to have their cases held by a competent court of law. Oftentimes, deserving cases fail to see the light of the day as people fail to take them to court due to lack of knowledge as well as unavailability of resources by police prosecutors to do the same.
Across the country, courtrooms are mostly found in urban areas. Police stations are also challenged with mobility such courts that are situated a minimum of 50 kilometers to most police stations in rural areas proves inaccessible.
Available structures on the ground lives a lot to be desired if one is to say the least.
In Monkey Bay, an area with annual average temperatures of about 33 degrees, for example, cases are presided over in tinned structures belonging to the Department of Marines.
And in Katuli, about 50 kilometres south of Mangochi Boma, there is no court to hear cases. Police officers there use some makeshit structures as police cell. The structure has no ventilation. It is made of tin, so are houses for the law enforcers.
This is just a tip of an iceberg as Malawi has lack enough infrastructures to support justice delivery across the country.
“I have been travelling from Chimbende to Mangochi for a case in which some people destroyed my property over chieftaincy disagreements. But now it’s two years since the case started. At the moment, we are not aware of the progress of the case,” says Amina Amadu in single case that represents a general outcry among Malawians.
Justice in the country has become a constitutional provision for the rich and people urban dwellers, where for unknown reasons, there is a high concentration of both police stations and modern courtrooms.
Speaking in an interview when he chaired a Judiciary Dialogue session in Mangochi recently, Chief Justice Andrew Nyirenda admitted that things are not in desirable state at his department.
He called stakeholders to find means of improving the systems as a means of making sure that court users, especially those based in rural areas, are not getting a raw deal.
Among many things, Nyirenda bemoans lack of enough qualified judges and magistrates to preside over cases in rural areas as well and unavailability of infrastructure to help the Judiciary administer justice to the rural masses.
He says Malawi’s current state of affairs at the judiciary leaves a lot to be desired such that a lot of people are being denied their right to justice because of poor service delivery in the country’s courts resulting from lack of seriousness and political will to improve affairs of the Judiciary.
“We need to develop a mechanism that can help create a Judiciary that remains in contact with the people it serves so that we can get constant feedback about our services. At the moment, it is very unfortunate that we are letting court users down in our service delivery,” Nyirenda says.
The chief justice also complains of government’s unwillingness to fill vacancies in the Judiciary, saying the development is creating more losers than winners because there are a lot of cases that are taking time to be completed due to lack of personnel.
This, he says, add to the challenges which local people face to access quality and equitable justice in Malawi, something which Nyirenda believes do not augur well with principles of good governance that Malawi strives at.
Giving details, Nyirenda says his department has almost half of its required personnel despite an increase in the population which he says require that the job establishment at the Judiciary also be expanded.
“We have eight Justices of appeal. There are 26 judges of the High Court. Additionally, we have 35 professional magistrates who are lawyers and 85 magistrates who are not lawyers. These numbers are inadequate to cater for the country’s population that seeks help at the courts,” he says.
He wonders why there are deputies in the country’s other departments such as the presidency and Parliament but not in the Judiciary as is the case with other countries.
The development, Nyirenda says, deprives the chief justice of his professional opportunity to preside over cases, as most of the time he or she is concentrating on administration matters.
Nyirenda also recommends for the need to formulate guidelines that must be followed by judges at the Supreme Court when passing judgments as one way of bringing sanity and consistency in the administration of justice.
Malawi Law Society President John Suzi-Banda who also attended the meeting says the acknowledgement by the head of the Judiciary that things are not all that perfect at the department that needs to stand tall at the core being of democracy serves as a wake-up call for Malawi.
He says society together with stakeholders need to contribute ideas of how to make sure that the situation is improving so that justice is being delivered in the best interest of the nation as the situation at the moment disadvantages a lot of deserving Malawians.
“We are not in a crisis yet,” he says, adding:” The situation needs to be improved if Malawians are to be enjoying their constitutional right to justice which is a catalyst for good governance”.
Despite all these challenges, access to justice remains an important element of the rule of law. It enables individuals to protect themselves against infringements of their rights, to remedy civil wrongs, to hold executive power accountable and to defend themselves in criminal proceedings.
But at the moment more Malawians continue being denied access to the much-needed justice through lack of courtrooms in their localities, no police officers to investigate their cases, no money to hire legal representation, and when the cases go to court, the people are likely to be assisted by unqualified magistrates. This in a larger part denies Malawians of their constitutional right to equitable access to justice.
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