A human rights activist, Ken Williams Mhango, has observed that court injunctions have been abused and brought into question the concept of separation of powers between the Executive, the Legislature and the Judiciary.<\/p>\n
Recently, Parliament passed a bill that seeks to break up the Electricity Supply Corporation of Malawi into a number of entities, but it transpired that some workers had sought a court injunction preventing such a process in Parliament.<\/p>\n
\u201cSometimes, injunctions have stopped, temporarily, processes in, say, the Legislature. This is good, because the three branches are checking and balancing each other, but it also raises questions of overlaps in the exercise of power of the three branches. From a layman\u2019s point of view, it becomes confusing,\u201d said Mhango in an interview.<\/p>\n
Mhango added that injunctions have, to some extent, become a way of generating funds for the courts and lawyers.<\/p>\n
\u201cYou see, in a democracy, everything goes. So, it is injunctions, injunctions, injunctions. An injunction costs a lot of money, and both the courts and lawyers\u2014who are supposed to be paid by their clients\u2014get money out of the process. It is unfortunate that democracy has become a case of injunctions, injunctions, injunctions, but that\u2019s democracy anyway,\u201d said Mhango.<\/p>\n
However, in an email response Malawi Law Society president, John Suzi Banda, says there is nothing wrong with injunctions.<\/p>\n
\u201cThere\u2019s nothing evil or sinister about an injunction. An injunction is simply an order granted by a court requiring someone to do or cease from doing something. It is an equitable remedy. The effectiveness of an injunction, both as a final or temporary order, cannot be overstated.<\/p>\n
\u201cFor example, many citizens of this country and organisations dedicated to the entrenchment of democracy have benefited from injunctive reliefs against unlawful actions of the government,\u201d said Banda.<\/p>\n
Banda observed that Malawi\u2019s Constitution accords citizens the right to effective remedy to protect and enforce their rights, describing an injunction as one of such remedies.<\/p>\n
He said Malawians should be proud of the progress they have made in this regard, considering the country\u2019s chequered history.<\/p>\n
\u201cAs Malawi Law Society, we shall resist any attempt by anybody, including the government, to limit citizens\u2019 rights to effective remedy<\/p>\n
including injunctive reliefs. The past two decades of democracy are replete with examples of how government has been stopped from implementing blatantly unlawful decisions.<\/p>\n
\u201cThe jurisprudence we have developed over the years is very rich and commendable. As Malawi Law Society, we are proud of the role our members and the courts have played in developing this enviable wealth of jurisprudence. But beyond this, even among private citizens, injunctions have helped secure rights of the most vulnerable among us,\u201d added Banda.<\/p>\n
On perceptions that Malawi has become a country of \u201cinjunctions\u201d Banda said the courts were the best judges in this regard.<\/p>\n
\u201cRegarding the abuse of injunctions by litigants, it\u2019s ultimately up to a court to decide whether to grant an injunction or not\u2014whether as a temporary order or as a final order. As is always the case, if any litigant is aggrieved with a court decision, they have a right of appeal to a higher court.<\/p>\n
\u201cIf it\u2019s later decided that the injunction ought not to have been granted in the first place, there are consequences including payment of damages to the other party. In our considered opinion, therefore, the issue of abuse does not arise. It\u2019s neither here nor there. To argue otherwise would be tantamount to questioning the wisdom of our courts,\u201d he said.<\/p>\n
He said, contrary to Mhango\u2019s perception that injunctions might have become a money-making machine, \u201cMalawians do acknowledge the legal profession\u2019s contribution in this regard\u201d.<\/p>\n
During his second term, the former president, the late Bingu wa Mutharika, was prevented by the courts signing into the Civil Procedure (suits by or against government or public officers) Act Amendment Bill\u2014famously known as the \u2018Injunctions Bill\u2019\u2014 which outlawed ex parte (one side) injunctions and directed that the government legal representative would always be present when an injunction application is being held.<\/p>\n
A report by the Human Rights Watch in 2011 observed that injunctions in Malawi had sometimes been used to stifle citizens\u2019 rights, cited the indefinite postponement of civil society organisations\u2019 planned demonstration slated for August 17 and 18 2011 to commemorate the death of those killed during the July 20 demonstrations the same year.<\/p>\n
Human rights lawyer, Justin Dzonzi, said access to the courts was a constitutional right.<\/p>\n
\u201cThe Constitution guarantees the right to judicial remedies. That is why the proposed limitation was shot down. People should readily access the courts,\u201d said Dzonzi.<\/p>\n
On the issue of perceptions that injunctions are abused, Dzonzi said he has not encountered a scenario where the process had been abused by some parties. He said the process of seeking and obtaining injunctions was a matter guided by procedures.<\/p>\n
\u201cIn fact, the procedure for application has inbuilt mechanism to sieve frivolous ones,\u201d said Dzonzi.<\/p>\n
However, Mhango maintained that there is need to clarify the extent to which one government branch stops another from fulfilling its constitutional mandate.<\/p>\n","protected":false},"excerpt":{"rendered":"
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