Having defended constitutional and institutional mechanisms for scrutinising presidential fitness, NAP should apply the same principle to concerns about judicial accountability, transparency and public confidence.
EDITORIAL | The Forum
The National Advocacy Platform (NAP) has come out strongly in support of President Peter Mutharika in the debate over questions about his fitness to govern.
Mutharika has been in office for less than a year. During that period, he has made private visits to South Africa, while claims have also emerged that he has delegated some presidential responsibilities to the second vice-president, including chairing Cabinet meetings.
Mutharika’s age was hardly a secret when Malawians went to the polls. It was part of the public debate, yet voters ultimately chose him, overwhelmingly. NAP argues that if there are genuine concerns about the octogenarian president’s fitness to govern, Malawi’s Constitution and institutions provide mechanisms for addressing them rather than resorting to social media campaigns.
NAP’s argument has merits.
But we have a suggestion for the platform, which brings together more than 80 civil society organisations and faith groups: having spoken out on presidential accountability, it should turn its attention to another powerful arm of government — the judiciary.
The judiciary is one branch of government that often appears to operate above meaningful public scrutiny. Cases can take years to conclude, while concerns about corruption, institutional weaknesses and controversial judgments continue to shape public perceptions of the courts.
There is also the question of the financial consequences of court awards against the state. Billions of kwacha can be awarded to plaintiffs at a time when hospitals and schools struggle to provide basic services and public infrastructure remains in poor condition.
That does not mean courts should be prevented from awarding compensation where it is legally justified. Nor should judicial decisions be judged by whether they are convenient for the government. The point is that the state needs a credible way of examining systemic problems that may arise from litigation, delays and the administration of justice.
We know what needs to be done, but too often we choose not to do it.
The presidency has generally been cautious about confronting problems within the judiciary, perhaps because of the legitimate fear of being accused of political interference. That caution is understandable. Judicial independence is fundamental to democracy and must be protected.
But independence cannot mean immunity from scrutiny.
The government must recognise that weaknesses within the justice system can have consequences far beyond the courtroom. Delayed cases, perceptions of corruption, questionable processes and institutional inefficiencies can undermine public confidence and, ultimately, the government’s own development agenda.
Of course, courts will inevitably make decisions that anger politicians, businesses and ordinary citizens. That is part of the nature of an independent judiciary. The goal should not be a judiciary that never attracts criticism. It should be one whose processes are trusted even when its decisions are unpopular.
We need to get to a point where citizens can reasonably say: “I may disagree with the ruling, but I trust the process that produced it.”
That is the standard Malawi should aspire to.
The reform equation is therefore essentially independence plus competence plus transparency plus accountability.
Remove independence and you get political courts. Remove accountability and you risk impunity. Remove transparency and even legitimate decisions can begin to look corrupt. Remove competence and justice becomes painfully slow or ineffective.
These principles are not mutually exclusive. A judiciary can be independent while still being accountable. It can be powerful while remaining transparent. And it can be protected from political interference while being expected to deliver justice efficiently and fairly.
This is where NAP could make an important contribution.
Having correctly argued that concerns about presidential fitness should be pursued through constitutional and institutional mechanisms, NAP should apply the same principle to the judiciary. If there are legitimate concerns about corruption, political interference, delays, controversial judgments or other institutional weaknesses, they deserve serious public scrutiny and institutional reform, not silence.
Malawi needs to restore public confidence in the judiciary.
Doing so does not require weakening judicial independence. On the contrary, a judiciary that is demonstrably independent, competent, transparent and accountable is more likely to command the public confidence that judicial independence ultimately depends upon.
