Two participants at a human rights training course for judges from 11 African countries, held in Cape Town mid-May, have first-hand experience of what making a bold human rights decision may sometimes demand. Judges Michael Tembo and Redson Kapindu were both on the bench, part of a five-judge panel in what they say was, without doubt, the most significant case in Malawi’s history. It was a case that left them physically shaken and traumatised, but all the wiser from the experience and more determined than ever to live up to the demands of their judicial oath of office. Pictured in their bulletproof vests are (left to right) Justice Dingiswayo Madise, Justice Ivy Kamanga, Justice Healey Potani, Justice Michael Tembo and Justice Redson Kapindu.
Judges Redson Kapindu (who helped present the human rights training course) and Mike Tembo, are both members of Malawi’s high court, and were part of the five-member bench that heard a most significant case.
Following presidential elections in May 2019, they had to decide a challenge to the poll’s validity, litigation that raised the political temperature in Malawi to boiling point.
Once the case was launched, they began to deal with preliminary matters and on 21 June 2019 – a date they both remember with absolute clarity – they set off to court to deliver an important judgment. In response to argument by counsel for the respondents in the case, the court had decided that a technical point, potentially fatal to the continuation of the case, had to be rejected. The case would go on.
The five judges left the hotel where they were staying. Accompanied by a police escort, they drove to court, only to find the road blocked with rocks and concrete slabs, and they came face to face with a rioting mob.
With hindsight they have come to realise that several factors collided to create the right conditions for this attack. For example, the then-President, Peter Mutharika, was in town to open parliament, and many of his party’s supporters had flocked to cheer him on. There were also thousands of opposition supporters who were in town to follow the court’s hearings.
Their car windows smashed, and the vehicles dented by pelted stones, the five judges pressed on to court. There they found the situation rapidly worsening and the building under attack. Seeing the danger, the police ‘simply disappeared’.
‘We were deeply worried for our own lives. In court we could hear the stones raining on the roof and we feared what the crowd would do. That was when we realised our lives were in serious danger and we had to call in the army generals. Within 15 minutes the soldiers arrived. They cordoned off the area and gained control.
‘Only then could we deliver our decision.’
From that point on the military, acting with the strict political neutrality mandated by the constitution, kept constant guard over the five judges.
They stayed in a hotel for the rest of the hearing and then moved to a secret place, out of town, to write their final decision.
The military, which kept them under 24-hour protection, ‘really have to be commended for the role they played,’ they commented.
Oath of office
Reflecting on those events, the two judges said they believe they were acting ‘in the interests of the human rights of the voting public. It was a serious enterprise, and a situation that brought our oath of office into sharp focus.’
‘We had to do what was right, without fear or favour. And the stakes were so high that we needed physical protection. (Faced with such a situation), someone not brave enough could try to find an easier way, and we have really learned that there are times when protecting human rights may be very challenging.
‘The police disappointed as they deserted at a critical moment.
‘We learned many things through this experience, however. One was the importance of the open justice principle.’
The court decided not just to continue to hold all the hearings in normal open session but, realising the enormous public interest and the resulting huge crowds that gathered at the court to find out what was happening, the court arranged for the hearings to be broadcast by the media which had asked for access to carry the proceedings live.
The judges also arranged for simultaneous translation into the vernacular, of all that was said in court, That had an immediate effect. ‘People stayed home to listen to the proceedings instead of flocking to court and that contributed to a calmer atmosphere. It was a major lesson.’
The only downside of translating the proceedings was that the case lasted longer than it would otherwise have done, but it was clearly the right thing to do and even those who complained about the additional time taken, later changed their minds.
The media was also to be commended, said the judges, because they gave time to broadcast the day’s hearing in real time and then again in the evening.
It comes as a shock to hear from the judges that they were offered no immediate support after the initial attack. They believe this might be because, as they remember it, media reports were focused on the judgment they delivered that ordered the continuation of the case, and the reports said little, if anything, about the rioting.
But later, after the landmark decision overturning the election, the judges did receive support, this time in the face of the intense vilification that followed their judgment.
‘Some people called it a judicial coup and there were demonstrations saying we were corrupt. That is when we received statements and other offers of support. There was even an organisation from South Africa that promised to organise refuge if it were needed.’
Their decision was delivered on 3 February 2020 and an appeal was noted almost immediately. Things moved fast from that point and, just three months later, on 8 May, the apex court’s judgment was handed down, upholding the initial high court outcome.
During the intervening months, the five judges stayed tensely holed-up with minimal protection as the military were withdrawn after March 2020.
For Judge Tembo, last week’s Jifa training provides a timely reminder that whatever case a judge may hear, he or she must be alert for possible broader human rights dimensions that could influence how a matter is approached.
Judge Tembo added that the training course also offered a chance to revisit his judicial oath of office. ‘It guides me whatever I do. I take it very seriously. It is not a simple issue. No matter the challenge, I am happy to do what the judicial oath of office requires of me. And this course makes the weight I give to my oath even greater.’
* 'A matter of justice', Legalbrief, 17 May 2022