State of the Judiciary in Malawi, Namibia and South Africa
Members of the Media
Press Release | For immediate release
3 May 2022
DGRU releases report on the State of the Judiciary in Malawi, Namibia, and South Africa.
The Democratic Governance and Rights Unit (DGRU), thanks to the generous support of the Norwegian Embassy, and in collaboration with IPOR (Malawi), Survey Warehouse (Namibia), and Citizen Surveys (South Africa) are proud to release their comprehensive report on the state of the judiciary in the High Courts, in three Southern African countries, namely Malawi, Namibia, and South Africa. The report and its subsidiary reports are the result of a comparative analysis that focuses on the key issues of independence, efficiency and operations, and accountability in the three judiciaries.
Initiated on the understanding that the well-being of the judiciary is essential to the functioning of a modern state and the well-being of its citizens, the report’s key output was to highlight both court users’ and judges’ perceptions of judges and the judiciary, across Malawi, Namibia, and South Africa, how they are treated by stakeholders, and what biases are experienced.
Do we trust our judiciary? According to a new survey by Afrobarometer the factors that influence public trust in the courts include age, education, gender, political affiliation and the standard of living of citizens.
The key finding in the report is that the jurisprudence produced by the courts contradicted the general perceptions of a lack of independence of the courts (for example, Malawian judgments overturning the 2019 presidential elections).
Court user surveys were conducted with the aim of establishing how the layperson and legal professionals using the court felt about the judicial system in their country. Key issues investigated included perceived fair treatment, safety, the efficiency of court proceedings, availability of legal representation, corruption, and trust in judges, among others. A key finding here was that 9 out of 10 court users across all three countries found that court proceedings were both clear and easy to understand. Respondents also felt that judges listened to all sides of the story before coming to a decision.
“Across all three countries, 77% of respondents believed people from all races/ethnicities were treated fairly, 74% believed the same to be true for treatment of men and women, but only 56% said that rich and poor were treated alike by the court system.”
The report further examines a number of issues relating to the lived experience of the law (by citizens and legal professionals), including accessibility and basic functioning of the court, including travel time/distance to courts, safety and court schedules, legal representation, courtroom procedures, discrimination, and corruption. Key findings here include that over 50% of Malawians stated that it took them over 1 hour to travel to court. Additionally, distance from court i.e. court access affected perceptions of court efficiency.
Does accessibility to courts impact court schedules? According to the report, delays experienced as a result of court user traveling times and infrastructural issues are some of the more common causes of delays. In Malawi, 50% of court users spent at least an hour traveling, compared with 13% of Namibians and 8% of South Africans.
Findings indicate that not all opinions about the courts are actually garnered from first-hand experience. Only 1 in 8 Africans have actually had direct contact with the courts. Instead, in most cases, opinions were garnered from secondary sources of information, via friends and family, the radio, TV, newspapers, and online media.
Only 1 in 8 Africans actually have direct contact with the court. Instead, in most cases, opinions were garnered from secondary sources of information, via friends and family, the radio, TV, newspapers, and online media.
The report also explored court users’ personal experiences of corruption and found that users were not regularly asked to participate in corruption.
The well-being of the judiciary is essential to the functioning of a modern state and the well-being of its citizens. The State of the Judiciary report includes a comparative analysis of the structure and hierarchy of the High Courts of Malawi, Namibia, and South Africa. This is their hierarchy and structure at a glance. It is clear that more gender diversity is needed across all three judiciaries.
A comparison of the makeup and composition of the judiciaries shows a glaring discrepancy between male and female representation, as well as the need to train and increase the number of women in the judiciary, specifically in Malawi and Namibia.
The report then summarises key findings on judges’ perceptions of interference, including related issues such as underfunding of the judiciary, and inadequate remuneration for judges themselves. Other concerns identified by judges include the shortcomings or lack of skills of other stakeholders, and a lack of adequate support or resources (tools of the trade).
The report concludes with an examination of the major challenges judges face in their courts, and in the performance of their duties. Judges in Malawi cite insufficient court personnel, high caseloads, poor building infrastructure, and budget limitations. For Namibian judges, challenges include not having adequate access to tools of the trade (e.g., laptops, law reports, electronic services); a shortage of judges in the face of increasing workloads; limited funding for legal aid, resulting in people representing themselves; and inadequate training by other stakeholders in the justice system, including the police. Respondent judges felt that police should be trained in all aspects of the law so that an accused’s rights are protected from the outset.
More variation was noted in the challenges faced by South African judges, including access to tools of the trade (an issue exacerbated by remote work), which included insufficient online resources and poor digital infrastructure (an issue that compromises the security of the institution on a broader level). One judge cites the expiration of software licenses, breaches in online security (email) due to lack of firewalls, and suspended services for online resources as major challenges. Another problem faced was that of building infrastructure, particularly broken air-conditioning (which makes court conditions extremely taxing on all stakeholders when temperatures rise).
The Office of the Chief Justice (OCJ), an institution that was established to provide administrative support, was also criticised for being staffed by personnel ill-equipped to deal with the needs of the judiciary. In fact, the OCJ was seen by some respondents as a hindrance, rather than a help. Judges’ responses regarding the OCJ suggest that there is a need to re-examine how this office can best serve the needs of the judiciary.
The perception of corruption poses a real threat to the confidence in the rule of law, but it also begs the question of what personal experiences court users have of corruption.
Despite the concerns raised, judges uniformly highlighted their civic-mindedness and identified their consciences as the best protection against interference.
The report highlights several key points that need to be addressed within each country’s respective judiciaries and concludes by recommending that better communication is needed between the judiciary and citizens, across all three countries. There is also a clear need for judicial training that emphasises clear, concise communication with lay court users. Finally, there is a need to address issues such as access to tools of the trade, and judicial salaries and benefits.
DOWNLOAD THE FINAL REPORTS BELOW
For all queries please contact Chris Oxtoby on: cc.oxtoby@uct.ac.za
Download the State of the Judiciary poster
The Democratic Governance and Rights Unit (DGRU) is one of Africa’s leading research centres specialising in the area of judicial governance. Based in the Department of Public law in the Law Faculty at the University of Cape Town (UCT), the DGRU’s main focus is on supporting judicial governance and providing free access to legal resources in Africa. To find out more visit: http://www.dgru.uct.ac.za/
Judges Matter is a loose coalition of civil society organisations who believe in the importance of judges. We believe that judges matter because the law matters in any democracy and judges represent a significant check against executive or legislative abuse, and where the judiciary has the power to overturn decisions of the ‘political’ branches of government.
Judges Matter focuses on the appointments process for judges. We try to explain how the process works and we track and illustrate the process by providing transcripts of the JSC interviews, information about candidates being interviewed by the JSC, and by reporting on the appointments made. www.judgesmatter.co.za
Excellent assessment of judiciary as existential custodian of the rule of law in Africa democracy.