The long-term impact of Malawi’s brutal and undemocratic past has been highlighted by a recent decision of the African Court on Human and Peoples’ Rights.
In the case of Harold Munthali v Malawi, the court had to consider a matter brought on behalf of Munthali’s father, a victim of the dreaded Forfeiture Act, used against government opponents in the period before transition to multi-party democracy.
The claim by Munthali was that early in 1976, the then-Malawian government confiscated all the property of his father, a businessman who ran a fishing business, and vested it in the government through the Administrator General. No compensation was paid.
When change came via a new constitution in 1994, Malawi established a National Compensation Tribunal. It was to operate for just 10 years and had exclusive power, specifically excluding the courts, to resolve the criminal and civil liabilities of the government from the pre-1994 era.
According to the claim before the African Court, Munthali filed his confiscation complaint with the tribunal and, before the tribunal closed its doors, it had written to the relevant government departments signaling its intention to hand over the confiscated properties to him. But the matter was not finally resolved before the tribunal stopped work.
Munthali then approached the high court, which declared his rights had been violated by the confiscation and that the properties should be returned. When the actual quantum was to be assessed, however, the high court dismissed his claim for compensation saying the courts were effectively barred by the closure of the tribunal.
All efforts to obtain redress since then via correspondence with Malawi’s attorney general had also failed, on the grounds that the tribunal had been the only organ able to deal with the matter.
This, Munthali told the African Court, amounted to a violation of a number of his rights under the African Charter, and he asked for the court’s intervention.
The Malawi government objected, claimed he should have approached the high court in Malawi, sitting as a constitutional court, to decide the issue of the violation of his rights. The government also said he should have appealed to the supreme court against the high court’s decision dismissing his claim for compensation.
In its judgment, the African Court has now said that, ‘as it undisputedly emerges from the records of the case’, the tribunal was vested with ‘exclusive original jurisdiction’ to deal with claims of confiscated properties that had occurred in the pre-1994 period. The result was that the jurisdiction of the normal courts was ousted, and not even the constitutional court was excluded from that ouster.
The African Court said it therefore found that the constitutional court would not have been able to provide ‘an effective remedy that [Munthali] ought to have exhausted’ before approaching the African Court. Similarly, the African Court found that Munthali had not been obliged to ask the Supreme Court of Appeal for relief.
On the substantive issues raised by Munthali, the African Court said that Munthali’s claim was never finalised by the tribunal and ‘attempts to vindicate his rights in ordinary courts were frustrated.’
Munthali and his son, who had brought the case to the African court, were thus ‘left in a legal limbo’, while other Malawians in the same situation were given protection by the law. This amounted to a violation of the right to equal protection of the law, the court said.
The government had decided to grant exclusive jurisdiction to the tribunal. However, it refused to extend its lifespan while at the same time ousting the jurisdiction of the courts to handle matter left unresolved when the tribunal closed. In doing so, Munthali and others in his position were left with legal uncertainty and their right to have their cause heard in respect of this issue was breached.
Further, since the jurisdiction of all the domestic courts was ousted, Munthali was deprived of the right to pursue his cause in the ordinary domestic courts and his right to have his cause heard was violated.
As to Munthali’s right to a remedy, the court said that despite his ‘tremendous efforts’ to have his properties returned and to obtain compensation, it was all in vain. And efforts to ask the domestic courts for help confirmed there was no hope at all of obtaining an effective remedy. His right to a remedy was thus violated.
What reparations would the court award, given these rights’ violations, and given that he had nine children?
The government, the tribunal and the high court had all acknowledged that confiscation via the Forfeiture Act was unlawful and had to be remedied. Further, they acknowledged that Munthali was wrongly subjected to forfeiture and that reparation was appropriate.
The immovable property that had been returned to Munthali was in a dilapidated state and some had been destroyed. In addition, his movable property can no longer be traced. Against these considerations, the tribunal’s rules had established a maximum compensation of MWK10 000 000, while Munthali’s claim had included moral damages for hardships suffered by the dependents.
However, the judges said it was ‘only logical’ that limitations on awards by way of a ceiling on quantum were applicable to the tribunal and not to the domestic courts let alone to the African Court.
As the value of the properties would have appreciated over time, so should the monetary value attached to them. Munthali was a wealthy businessman, involved in industrial fishing, with exports in Africa and overseas. However, he had died destitute as a result of the confiscations.
Allowing for inflation and other factors, the court decided that Munthali’s dependents should be awarded MKW200 000 000 for the property confiscated. In addition, by way of moral damages, the court awarded MKW1 000 000 to each dependent.
These sums are to be paid, tax free, within a year from the date of judgment, failing which interest will be applicable until the amount is fully paid.
In addition, Malawi must, within six months, give the court a report on what has been done to implement the order, and must give updates every six months thereafter until the court is satisfied that its order has been fully implemented.
The Munthali case, now settled by the African Court, highlights the warnings given over the last few years, that there would be serious consequences to the unfinished business of Malawi’s compensation tribunal.
In 2017, the office of the Ombud published a report entitled, ‘Malawi’s unhealed wounds’, that dealt, among others, with abuse of funds intended for compensation by the tribunal. The report also claimed that the tribunal had prioritised compensation for individuals connected to the ruling United Democratic Front over other victims.
In 2018, The Nation published the content of an email received by the publication from the Ombud, in which she expressed frustration that the office of the attorney general had not yet respected the call to compensate about 19 000 victims not included on the tribunal’s list.
She is quoted as saying, ‘The fact of the matter is that until this issue is properly sorted out by the government of the day, it will not die a natural death. The wounds remain unhealed. Unfortunately, all the governments of the multi-party era have all failed to do that.’ She added that the issue ‘will always haunt the nation’.