State of the judiciary: new report on Malawi, Namibia, South Africa

For many judges it will come as a relief to hear some good news for once, in the form of largely positive public perception about the judiciary and its role in society. The good news emerges from a just-published report on the state of the judiciary in Malawi, Namibia and South Africa. Every member of the bench in those three countries will be only too well aware of the short-comings of their own judicial system, exacerbated by the restrictions imposed by the Covid pandemic, among a number of other problems. But the three-part report by the Democratic Governance and Rights Unit of the University of Cape Town’s law school found generally positive views by court users about how judges in these jurisdictions are doing their work. Another key finding is that perceptions of corruption in the court are significantly lower in the closely-targeted court user surveys, than had been found in opinion surveys of the general public.

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One of the key issues on the minds of everyone concerned about justice in the three countries examined by the new report, Malawi, Namibia and South Africa, is the extent of corruption, perceived or real, in the legal system, the courts and the judiciary.

Judges are easy targets for unscrupulous politicians and others. They may make allegations about corruption, without proof, to sow doubt in the public mind about the legitimacy of judicial decisions. The resulting rumours and speculation may work to the benefit of those spreading the allegations, but they weaken public trust in the judiciary, and, ultimately, in the rule of law and the entire democratic system.

Sometimes there may even be truth in claims of judicial corruption: tribunals to investigate such allegations against individuals are hardly unknown in the region, with the latest such tribunal about to be set up in Kenya to investigation claims against a high court judge.

Participate

With this in mind, I turned eagerly to the section of the new report that deals with public perceptions of corruption.

In previous research by Afrobarometer, the respected African opinion-gauger, it turned out that people interviewed in Tanzania, Cape Verde and Mauritius had the most positive views of judges and magistrates, with only one in 10 respondents saying that most or all judges and magistrates are corrupt. At the other end of the scale, people interviewed from Gabon (58%), Cameroon (60%) and Mali (62%) had the most negative perceptions of judicial corruption. Somewhere in the middle come Malawi (30%), South Africa (36%) and Namibia (23%).

But the researchers who put together the new report wondered about the experiences of those who actually use the courts: members of the public and legal professional. Have they been asked to participate in corruption? If so, what was their response?

Gift

From their interviews it emerged that five percent of the Namibians and South African interviewed at the courts reported that they, or someone they know, had been asked to pay a bribe, give a gift or do a favour for a court official to get the help they needed. In Malawi the figure was higher (14%).

And what about legal professionals? In Namibia five percent of professionals reported that they paid a bribe to get the help they needed – exactly the same percentage as among lay users of the courts. In SA, 11% of legal professionals admitted having to ‘engage in this type of behaviour’, while in Malawi the figure was even higher, standing at 32%.

But being asked for an unlawful payment isn’t the end of the matter. The researchers wanted to establish whether those exposed to corruption felt empowered to report illicit behaviour, so they asked whether the respondents would report requests for a bribe, gift or favour. Overall, between 78% and 87% said they would report.

Negative repercussions

If so, to whom would the report be made? And if not, why not?

Most court users in Namibia (55%) and SA (42%) said they would report to the police. Respondents in Malawi were less keen on reporting to the police (29%).

It may come as a surprise to readers to discover that a large proportion of lay court users said they would ‘also report to the Judge President or the head of the court administration.’

And why would those who said they would not report any request for a bribe, take that decision? Some 13% of Malawian lay court users said it ‘would not make a difference’. Far more gave as their reason that they were worried about potentially negative repercussions of reporting any corrupt behavoiur.

Reprisal

In addition, a large proportion of Malawian lay court users (46%) said they did not know where to report it.

Faced with this figure, the writers of the report said it seemed that there were a surprisingly large number of people ‘who might benefit from additional information about what to do when faced with a difficult situation like this.’

The percentage of lay court users in SA (57%) and in Namibia (61%) who felt reporting would make no difference was rather higher than in Malawi, while it turned out that the percentage of SA legal professionals who would be worried about reprisal was the same as in Malawi.

Public information drive

The researchers conclude: ‘The number of lay court users who felt that reporting would not make a difference, and were unaware of who to report to, suggests that a public information drive in all the countries would be beneficial. It would also be helpful for instances where corruption was successfully prosecuted … to be publicised.’

More generally, the researchers noted that even though the faith of Malawians and South Africans in the courts had lessened over the past decade, ‘the judiciaries in both countries remain the most trusted branches of government.’

By contrast, in Namibia, the most trusted branch of government has, for some time, been the presidency (68%), followed by the courts (54%) and then the legislature (45%).

Must-read

The three-part report (which also comes with a fulsome summary) ranges over a number of other critically important issues, and I found the comparative section – contrasting the number of judges in the three countries, the number of women judges, the composition of the Judicial Service Commission and the way these commissions operate, for example – among the many of particular interest.

It's a must-read for judges, lawyers, and academics in the three target countries, but it will also be important reading for jurists elsewhere: they may well recognise many of the problems with which they are struggling and find helpful ideas from the detailed recommendation section of the report.