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.
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.
‘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.
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.
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?