*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.