SCA cases show up long delays in delivering judgments

4 September 2020 · Carmel Rickard

Two new decisions by Malawi’s highest court show that at least some of the country’s judges are still not delivering decisions within a reasonable time. In one case a group of people convicted of murder and sentenced to 30 years in prison were still waiting to hear the outcome of an appeal heard more than five years before. In the other, a man convicted of robbery had still not heard the result of his appeal over 37 months later. The judge who heard applications for release on bail in both cases, said he had no idea when the judges involved in the appeal would hand down their decisions. He spoke of the ‘suffering’ of the appellants as they awaited the outcome, wondering if they would ultimately be imprisoned for longer than the appeal court would find they should spend in jail. The judge finally agreed to grant conditional bail in both cases. Two years ago the country’s Chief Justice, Andrew Nyirenda, undertook to ensure judgments were up to date on pain of disciplinary hearings at the Judicial Service Commission, but not all judges seem to have been caught in that net.

Read Mekiseni judgment (August 2020):

Read Mthawanji judgment (July 2020):

Malawi’s Chief Justice Andrew Nyirenda is something of a folk hero. He enjoyed that profile even before the then-President, Peter Mutharika, tried to fire him.

Days before June’s national elections that returned a new government under Lazarus Chakwera, the CJ was put on enforced leave pending retirement. In response to that threat, people across the country marched in protest supporting the CJ and calling for the government to respect judicial independence. Urgent court applications were also launched to prevent him from being forced out, as Mutharika planned.

But the CJ’s reputation had already been building before that.

Walk the talk, Chief Justice

Some two years earlier newspapers, lawyers and ordinary people had hailed the CJ for a stiff warning he issued to other judges. He said that those who failed to deliver outstanding judgments by the end of that year would be dealt with by the Judicial Service Commission. They could expect disciplinary action, he said. Newspapers called his comments, ‘heart-warming’ and urged him to ‘Walk the talk, Chief Justice’.

But however much of the backlog was cleared as a result of those warnings by the Chief Justice, two recent judgments of Malawi’s highest court make it clear that much still remains to be done.

A few days ago, Judge Anaclet Chipeta of the Supreme Court of Appeal, handed down his decision in the case of Jonathan Mekiseni and others. Convicted of robbery, they were sentenced to varying periods of imprisonment. They appealed, unsuccessfully, to the high court against conviction and sentence. Then they appealed to the high court and, when they lost, they tried again, this time at the Supreme Court of Appeal.

Unfortunate position

The appeal was heard on 13 June 2017 but they are still waiting for the outcome. The four prisoners therefore went back to the Supreme Court of Appeal arguing that, since they have been waiting some 37 months, they should now be considered for bail pending delivery of judgment in their appeal. Their long wait ‘makes them very uncertain about when actually judgment will be delivered’. They feared that they might have finished serving their original sentences by the time judgment was delivered or they might have served a longer term than any new sentence the courts imposed. They had a right to fair trail, they argued, and that included the right to appeal. The long delay in deciding their appeal violated that right and they should be granted bail in the interim pending the delivery of judgment. They quoted earlier cases, including one in which, by the time the appeal decision was delivered, the appellants had already served longer sentences than the time imposed by the appeal court.

The State agreed that ‘it has indeed taken long for judgment to be delivered’, but said this was not in itself a valid reason to grant bail.

‘I should disclose that I am in the unfortunate position that the application fell on my lap,’ said Judge Chipeta. He had not been part of the appeal panel and he thus had no idea of how soon the judgment in the case could be delivered. All he could add was that he knew one of the judges on the appeal panel was not in the country. But even though he didn’t know how soon the judgment would be given he had to decide on the right thing to do. He had decided a similar case the month before, agreeing to allow bail for an appellant who had been waiting more than five years for the court’s decision. And, absent ‘special reasons’, courts were expected to treat like cases alike.

Suffering

‘The 37 months the applicants have so far waited for the determination of their appeal … has heavily weighed on my mind. Those many months represent a lot of waiting in idleness … while they are totally ignorant about whether the judgment to come will bring good news or bad.’

‘In my view this kind of suffering in silence and uncertainty by far outweighs the fact that being convicts these applicants cannot any longer be viewed as innocent individuals.’

He therefore granted them bail, pending the outcome of their appeal, under a number of conditions, including payment of bail bond.

Murder

The previous decision that Judge Chipeta referred to, delivered in July, also makes for startling reading. The applicant seeking bail was one of several people convicted of murder. He asked for bail after he had waited more than five years to hear the result of his appeal against conviction and sentence.

‘He has no idea when he will get judgment in the appeal,’ Judge Chipeta noted. If in the end he is successful, ‘his constitutional rights to a fair trail and to access to justice will have been grossly violated.’

The judge said he did not accept the argument that the convicted man should be released because of the coronavirus pandemic. There was no guarantee that once prisoners were let go from prison they would become safe from contracting the disease, he said.

'Compelling merit'

The accused had been sentenced to 30 years in prison. But there was ‘compelling merit’ in the quest for bail. The judge was in ‘no position’ to know when the court that heard the appeal would give its decision; however ‘it would overtly cruel and unjust’ to refuse bail pending the outcome of the appeal.

Here too the court agreed to bail on a number of conditions and bail bond.

One of the many points raised by these cases is this: should the Chief Justice not renew his efforts at ensuring his colleagues are up to date with their judgments? Should this not be one of his main priorities before retiring at the end of next year?

Carmel Rickard

About the author

Recent articles by Carmel Rickard

‘No justification for the unjustifiable’: Lesotho’s ombud slams grand-scale torture, assault in Maseru prison

22 March 2024
Carmel Rickard

Lesotho’s national ombud, Tlotliso Angelina Polaki, has issued a scathing report on massive-scale torture and assaults that took place in Maseru’s central correctional institution during December 2023, leaving about 95% of the inmates of the prison injured, one dead and one who is now wheelchair-bound and will never walk again.

Major court decision on image rights benefits Ugandan soccer players

21 March 2024
Carmel Rickard

Members of Uganda’s national soccer team from the period around 2007/8 have just been awarded a payout against MTN Uganda by the commercial court. The telecom giant had a year-long contract with Proline, the players’ originating development soccer club, allowing it to use the players’ images for advertising. But MTN had continued to use their images even after that contract expired on the basis that it had a sponsorship agreement with Fufa, soccer’s governing body in Uganda. The players then challenged MTN in court, through Proline, and have now won a significant damages award. But the judgment exposed some serious flaws in the way that Fufa has approached the question of using the image rights of its senior players, and the court commented that this is a ‘case study’ for why Fufa needs to sort out its contractual arrangements with senior players.

Executive interference in Ugandan court decisions continues – this time by the justice minister

21 March 2024
Carmel Rickard

Uganda’s minister of justice, Norbert Mao, has taken a leaf straight from the book of the country’s president, Yoweri Museveni. This week, the minister wrote to the principal judge of the Ugandan high court, asking that the judge directly intervene in a matter that has been brought to his attention by an MP on behalf of a constituent. Mao asked for the ‘immediate administrative intervention’ in the matter by the principal judge. Earlier this year, Museveni wrote a similar letter to the chief justice of Uganda, also requesting intervention in a matter, and the CJ later indicated that this was not the first time it had happened.

Is rape by family members treated too lightly by the law?

19 March 2024
Carmel Rickard

The high court has sent the case of a Malawian teenager, charged with raping his 89-year-old grandmother, back to the magistrate’s court for a possible re-trial because the court had wrongly prosecuted a case of rape instead of incest. If convicted in a re-trial, however, Malawi’s incest law could see the accused sentenced to a mere five years. Malawi’s penal code provides for a significant difference between the sentence to be imposed when a man rapes a close family member, and in a case where the two are not related. When they are unrelated, the code provides that a rape offender ‘shall be liable to be punished with death or with imprisonment for life’ (However, Malawi has had what amounts to a moratorium on carrying out the death penalty since 1992.) By contrast, ‘incest by males’, is categorised in the code as a ‘felony’, and anyone convicted ‘shall be liable for imprisonment for five years’. There is an exception: if it is proved ‘that the female person is under the age of 16, the offender shall be liable to imprisonment for life’.

Prominent SA advocates lose battle over conviction in Namibian courts for working without a permit, misleading immigration officials

6 March 2024
Carmel Rickard

Two prominent South African advocates have just lost their last hope of squashing their convictions in the Namibian courts. Johannesburg advocates, Mike Hellens SC and Dawie Joubert SC, had been found guilty on two counts, first, working as legal practitioners without an employment permit, and second, giving false or misleading information to immigration officers when they entered the country in 2019. Though they had gone to Namibia to appear in court in a bail application, they told the immigration officials they were there for a ‘visit’ and for a ‘meeting’. Both appealed against their conviction but they had also asked for a judicial review of the decision. In the high court they lost their appeal but won on the review. The outcome in both matters were taken to the apex supreme court for a final word. In December 2023, they lost their appeal at the supreme court. What would that same court say when the state appealed against the review finding? The supreme court has now given its answer: it found the review, that had favoured Hellens and Joubert, was wrongly decided, and set it aside, awarding costs against the two advocates in both the high court and the supreme court.