One reason why we consider (or expected) 1994 as decisive in the economic, legal and social-economic development of the country is because it was supposed to represent a structural break from the past, which was perceived to be associated with a one party rule with its demerits, to political pluralism with possibilities for various branches of government providing checks- and balances to each other, inter alia. It appears however that 21 years later, most of the aspirations that the nation had at the closure of the 1980s have not been realized.
The executive and the legislature have not fully embraced truly plural and cooperative forms of organization in that in practice, the legislature is still unicameral, governance of the country is till unitary rather than cooperative ( which is associated with devolution of power to local spheres of government including regions and districts). As such, power is still concentrated at the national sphere of government, with all its potential downsides. The real empowerment of local institutions and people at the grassroots continue to be illusory than a reality. But, while these issues are critical for empowerment, the purport of this note is to touch on the issues around the operation of the third branch of government-the judiciary, only in respect of sentencing of those who commit lesser crimes. I find it imperative to debate these issues because the judiciary is critical for constitutionalism or the general rule of law.
Recently, the media has been awash with reports of huge sentences (long periods) being imposed on those who commit crimes that may be considered less serious and yet the same appears not to be observed when those who indulge in serious crimes are involved. There is also another facet to this relating to the inverse variability of punishment to wealth. I don’t claim to have a solution in this regard, nor should I be expected to have one, but I would like to say one or two things that will point to the need for the judicial system in Malawi to do something alongside the executive and the legislature to help in bringing about a just and fair system of sentencing, that does not offer too harsh and inconsistent punishments to offenders in a manner that may suggest that it is good to commit more serious crimes than the less serious ones.
Indeed as we know, the law tries to find an average of individual and societal morals and convictions, implying that, it must, despite societal pressures, endeavour to protect the vulnerable as much as it protects the rich and the empowered. Surely the case where the rich are ok to commit a particular crime and the poor are heavily punished for smaller offenses is not an observation that accords with the boni mores (moral and legal convictions) of society, on the other hand, one would say, it is contra bonos mores (does not accord with good morals) and for Malawi, the legislature which makes those laws must endeavour to change this.
I submit that while indeed the duty to make, annul and amend laws is within the exclusive competence of the legislative authority, we know in practice, in line with the Doctrine of Separation of Powers, the judiciary needs to be challenging any seemingly unconstitutional pieces of legislation (or sections of legislation) through judicial reviews. I also submit that in some cases, the judiciary may and should help in removing some of the sentencing inconsistencies through court decisions that sometimes can, and should go out of bounds to set precedents that support the marginalized. In terms of the jurisprudence around the bills of rights, its complexity and allochthonous (foreign) nature imply that the judiciary must endeavor to develop the law in such a way that they can facilitate the realization (and give effect to) of rights as outlined in relevant sections of the constitution. The rule that the law making process is only for the legislature and anything to the contrary is bad, should be contextualized or qualified.
In my view, as the judicial system, they should consider doing more to ensure laws deployed for the conviction of offenders are clear (that is, they pass the ius certum, and ius acceptum rules). The sentencing also need to be clear (consistent with nulla poena sine lege maixims). One would argue that we should never always take the principle of legality as given in every case. The inconsistent sentencing that allegedly appears prevalent, may be considered evidence or a pointer to the fact that some elements of legality are infringed upon in the administration of justice especially as applied to the vulnerable.
For sure even without an understanding of the operations of the law, it is trifling to note that the society and even the judiciary cannot accept a case where for example a drunkard is spared, upon committing a crime but a normal and sober person is convicted for the same. If this were the case and the judiciary wrapped its hands waiting for the legislature to say something (on understanding that they must observe the Separation of Powers Doctrine), they, the judiciary wouldn’t be executing its tasks to the societal expectations. I submit that the judiciary is surely doing a lot already to ensure that constitutionalism is upheld, and everyone including the poor can be afforded justice in a manner that is fair and in keeping with legal convictions of society, but more can and should be done. Both the rich and the poor, the serious and the less serious offenders need a fair and just system. Even at the lower courts, the judicial officers handing out judgements should that it is important when sentencing to balance between the criminal, the crime and the interests of society! If this is adhered to, it is unlikely a chicken theft can earn a first offender who was so poor at the time of the act, 7 years jail term, just as an example. Such changes would be good for inter-temporal order and prosperity, and I submit that the executive, the development partners, the private sector, and NGOs through their grip on resources should consider rising to the occasion of reforms in the judicial sector in the regard discussed or more.