Justice Sector and the Rule of Law - AfriMAP

The restrictive interpretation of ‘sufficient interest’ does not permit public interest litigationfor which there is no specific legal provision in Malawi. In fact, in the High Court judgment ofthe Civil Liberties v Attorney-General case, the court expressly stated that public interest litigationwas not available as a means of taking judicial action separately from the regular procedureswhich were subject to the (restrictive) rules of locus standi. The limitation on access to courts thatthe restrictive interpretation of ‘sufficient interest’ imposes is mitigated to some extent by the factthat the courts appear to be ready to allow amicus curiae petitions. In the case of Registered Trusteesof The Public Affairs Committee v The Attorney-General and The Speaker of the National Assembly,The Malawi Human Rights Commission – Amicus Curiae, 548 which involved review of a decisionof Parliament to pass an amendment to the Constitution which violated human rights, the HighCourt permitted the Malawi Human Rights Commission to file an amicus curiae petition. Thereis no evidence to indicate that any NGO has ever filed an amicus curiae petition that was rejectedby the courts. In the light of the readiness with which the High Court allowed the amicus petitionin the Registered Trustees of The Public Affairs Committee v The Attorney-General and Another,there is no reason to expect that the courts will have difficulties with accepting similar petitionsfiled by NGOs.Although NGOs should be encouraged to use amicus curiae as a way of bringing to theattention of the courts the interests of vulnerable groups who may not have direct access tothe courts, more needs to be done to make the rules on locus standi less restrictive. Since thecountry’s highest court appears to be set in taking the restrictive approach, the more realisticoption might be to request the Law Commission to recommend an amendment to section 15of the Constitution that expressly permits public interest litigation on constitutional matterswhich is not subject to the restrictions of the ‘sufficient interest’ test set by the Supreme Courtof Appeal. According to an analysis of a random sample of over 90 cases in a research project, conductedfor the NGO the Asante Foundation in 2005, whose results were presented to the chief justice, 549the average duration of the hearing of civil trials before magistrates’ courts is 45 days. Thiscontrasts with the average of 408 days that it takes from the first to the last day of the hearingof a civil trial in the High Court. On average, there is a period of 141 days between the last dayof hearing and the day when judgment is delivered in civil cases. This period lengthens evenmore when one factors in cases in which the period is inordinately long. Thus, in the samplethat was covered in this research, the average was 249 days, when two inordinate cases inwhich approximately three years lapsed between the end of the hearing and the passing ofjudgment, were factored into the calculation. In some cases, the delays have been so seriousthat lawyers have written directly to judges to complain of the delays as happened in the case of