*Fiona Atupele Mwale, LLM
Judge, High Court of Malawi
Malawi registered its first COVID-19 case on 2 April 2020. According to the latest press briefing issued on the 30th of April 2020, the country now has a registered total of 37 confirmed cases and 3 deaths. 7 have recovered and the rest are being managed by the health system. The pandemic prompted His Excellency the President to declare a State of national Disaster throughout Malawi on 20th March 2020 and to set in place various measures aimed at curbing the spread of the virus. Restricting public gatherings to less than 100 people, closing public schools and restricting travel were some of the measures put in place. Government went further to draft regulations and declare a 21-day lockdown on 15th March 2020. The lockdown was to take effect from 18th March until 9 June 2020 unless extended further. The implementation of the lockdown was however challenged by a human rights group that has obtained an injunction from the High Court. The injunction was initially granted ex parte for a period of 7 days on Friday 17 April 2020 pending an inter-partes hearing of the application for judicial review of the decision to lock-down. On 28th April 2020, the High Court heard the judicial review and sustained the injunction for a further 5 days, referring the matter to the Chief Justice to certify the matter to a Constitutional Court. Until the Constitutional Court makes its ruling, the lockdown cannot be enforced.
Response of the Judiciary
The Judiciary has responded to the pandemic by issuing a press release from the Office of the Chief Justice on 27th March 2020 issuing directives on the conduct of court business during the pandemic. The directives outline measures aimed at adjusting the operations and processes of the Judiciary with a view to minimizing the risk of infection to Judicial Officers, Members of Staff of the Judiciary, Legal Practitioners, other professional court users and public users of the court system. Among the directives are directives to Judges, Registrars, Chairpersons, Magistrates and Researchers to carefully review their hearing case lists and adjourn non-urgent matters in order to reduce the potential for crowding at the court premises.
All cases, including Chamber matters (matters that are ordinarily dealt with in the office of the Judge/Registrar/Chairperson/Magistrate), are to held in open courtrooms and handled one at a time. Entry is restricted to only court officers who will facilitate the proceedings, legal practitioners, prosecutors, litigants, social workers, witnesses, accused persons and security personnel. Access to open court gallery is restricted with social distancing measures of at least one to two metres apart are to be put in place.
Further, wherever practicable, and subject to law, court proceedings should be conducted by teleconference or video conference upon arrangement between the parties and the responsible Judicial Officer(s) having conduct of the matter. The Chief Justice’s directives have however not provided guidelines on how they are to be implemented, leading to individual judicial officers making judgment calls on what they consider to efficient and appropriate in the circumstances. Some registries such as the Principal Registry, Lilongwe District Registry, Zomba District Registry and other Magistrate Courts have also issued directions specific to their registries on measures to reduce social contact with no uniformity in approach. Each of these Registries have however directed that hearing of all non- urgent matters have been suspended. This has led to the Malawi Law Society on 24th April 2020, placing an inquiry with the Registrar of the High Court and Supreme Court on the inconsistencies with a proposal that the Judiciary should consider coming up with merged directions that should apply to all courts.
My experience in implementing the measures
There have been a number of challenges in administering court business in these difficult times. I have had the occasion to preside over a number of civil mediations in another city, Zomba. Considering that the High Court Civil Procedure Rules 2017 gives the High Court power to ensure active case management which includes under Order 1 rule 5 (5) (j) includes “making use of technology”, I presided over 40 mediation cases using teleconferencing facilities between the months of November 2019 and March 2020. Considering that at that time, the State of National Disaster had not yet been declared, the network was not congested, therefore quality of the connection was very good. The cases were therefore disposed of effectively and a reasonable number were concluded at the mediation stage. Another female Judge based in Lilongwe also managed to conclude 49 cases in Zomba using the same facility at around the same time.
Whilst this indicates success in the efficiency of teleconferencing in avoiding face to face contact between the Judge and the litigants and their lawyers, I noted that the only contact that was limited was the vertical contact between the Judge and the lawyers. Horizontal contact between the clerk, the litigants and their lawyers was unavoidable as these persons still presented themselves to court and were assembled in the chambers in which the mediation session would have taken place had the Judge been physically present.
As the parties presented themselves around the table to take their turn in presenting their views, no social distancing was practiced. Some of the litigants were female and due to their gendered care and nurturing roles, some had babies on their backs. As they sat in front of the Judge’s table next to the other litigants, the legal practitioners and the clerk providing interpretation, other litigants awaiting their turn in the cases that would follow were seated in the room in the chairs at the back. At one point I counted over 23 people in the chambers which although reasonably sized, should not have accommodated so many people.
It is therefore in recognition of situations such as these that the directives from the Office of the Chief Justice have done away with chamber matters being heard in chambers. All chamber matters must now be heard in open court which have more space and parties who are not being heard at the particular time, must wait outside. Different Judges are applying the measures differently but all with the common intention of ensuring social distancing. On my part, in view of my experience with congestion, I have directed that all bail applications which were set before me, be heard on the papers. The parties will be required to file their documentation as usual; which I shall consider without requiring the legal practitioners to appear. I believe this is in line with the Chief Justice’s directives which expressly seek to reduce unnecessary overcrowding at court premises.
Challenges in open court
I have presided over three ongoing criminal trials and one matrimonial matter at the child custody stage in the period following the Chief Justice’s directives. These matters were set down to be heard through teleconferencing facilities. The teleconferencing facility that the court procured would have enabled all parties to appear remotely and reduced face to face contact. However, there have been a number of challenges which I list below with some possible measures to be considered.
1. Technical Challenges
Due to the high demand for use of teleconferencing in this period, the service did not work very well. There were many instances in which the service was interrupted leading to the court abandoning the teleconference so that the parties could appear in open court. The administration is in the process of procuring the services of another more reliable provider, which process should be expedited. A strong and reliable internet connection will need to be considered. The administration should also ensure that the additional routers that Judges were issued to ensure connectivity at all times are connected at all times.
2. Social Distancing
In the time that the teleconferencing facility did work, only the Judge was in a separate room from the rest of the parties. The litigants/accused persons still appeared in court where the size of the courtroom limits appropriate social distancing. In the criminal trial with more than one accused person, the accused persons could not fit in the dock and had to overflow to close proximity to the area reserved for the bar. Since the accused persons were coming from prison, they were accompanied by Prison officials for security purposes, increasing the number of persons in the courtroom. Some family members of the accused persons also attended, further increasing the numbers. In cases where there is more than one accused person, there was more than one defence counsel. Where a case has more than one defence counsel, adding in the marshall, a court clerk and an official court recorder in attendance, makes social distancing of at least one metre apart per person unenforcable in such circumstances.
Further, in criminal matters, once the witnesses start giving evidence, there is a considerable exchange of documentation. The witnesses tender exhibits such as post-mortem reports that have been served on the accused persons. These are then passed from the prosecutor to the clerk to the witness and ultimately the Court. While I insisted that the clerk wear gloves in the course of the hearing (he initially did not), the other parties, including the Judge, did not wear gloves. Health services advice against the use of gloves opting for regular hand washing or sanitizing, but considering the state of some of the documentation that is tendered, some of which has blood stains, for the clerk, wearing of gloves which he should change regularly (and he did) is necessary.
I also noted that wearing of masks is either not being done properly or ignored completely. I noted in court, some court users either wearing their masks wrongly (upside down, with the nose left out or very loosely etc.) or not wearing them at all. I also noticed frequent touching of the masks which are obviously uncomfortable and become even more so when one is in a non-air conditioned courtroom being cross-examined. I noted witnesses take off their mask to put on classes, handle a document passed on to them from the lawyer to the clerk to them, then taking of the glasses and putting on their glasses again. At some point I had to humorously threaten to fine any person who touched their face or a mask in my courtroom.
Appropriate measures need to be considered for the rest of the court users and personnel so that they too can appear remotely. This will require reliable connection services with the Malawi Prison Service. Prosecutors from the Directorate of Public Prosecutions will also need to ensure reliable connection so that they too appear remotely and all exhibits are tendered electronically, the originals having been brought to the court in advance. This would reduce the risks to exposure posed by the current system.
3. Urgent Matters
I have also experienced first-hand, one of the challenges that the Malawi Law Society has brought to the attention of the Registrar. One of the concerns of the Society is that definitive guidance should be provided on what actually constitutes “urgent matters.” Thus, the actual scope of cases that will be handled by courts during this time must be set out, clearly specifying what matters are in the category of urgent matters.
My approach as a Judge sitting in a criminal division has been that criminal matters are by their very nature urgent matters considering the implications of such matters. However, there is a need for clear guidance on what should constitute urgency outside what might be commonly considered as urgent and what might not seemingly appear urgent. Nonetheless, in my view, in the absence of such rules, a party who finds that his or her matter has been adjourned and has not been scheduled for hearing in the immediate future has the option of filing an application requesting that the matter be heard and filing a certificate of extreme urgency to justify why the case is urgent because even if urgent matters or the category of urgent matters are listed, there will always be cases outside the list that might justify urgent attention in view of prevailing circumstances.
There is a lot that the judiciary still has to learn about managing court proceedings during the pandemic in order to adopt measures that offer the best protection to all involved. Health and disease prevention training conducted by experts might be a good starting point. A flexible approach needs to be taken so that as new lessons unfold, they inform future practice.
* The views expressed in this entry belong entirely to the author.