Litigation involves three major parties: the complainant, the defendant and the court. According to the principles of natural justice, the judge of the court does not need to take sides to avoid bias in executing justice.

In fact, natural justice entails that the court has the duty to act fairly (1) by avoiding being biased and (2) by providing both contesting parties an opportunity to be heard in an open and fair manner. These are the two fundamental principles of natural justice as discussed in detail in the subsequent sections.

(1) No man is a judge in his own cause (Nemo iudex in causa sua)

This principle dictates that you cannot be a judge of your own case. In fact, a person is barred from deciding any case in which he or she may be, or may fairly be suspected of being
biased.

In our case, the court is an interested party because demonstrations are being staged against its alleged bias in determining cases.

By granting an injunction against the demonstrators, it flouted the principle of emo iudex in causa sua because it assumed the role of an arbitrator of its own case. The court become both a defendant and an adjudicator. This is wrong as it is against the rule of bias.

(2) Hear the other side (Audi alteram partem)

For fair justice, the court needs to hear from both sides of the story. In our situation, the court is hearing its own side as a defendant and later it assumes the role of adjudicator. Quite cumbersome.

Furthermore, the right to a fair hearing requires that individuals are not penalized by decisions affecting their rights or legitimate expectations unless they have been given prior notice of the cases against
them, a fair opportunity to answer them, and the opportunity to present their own cases.

Here are the demonstrators complaining about corrupt Judiciary, before they are heard they are granted a court injunction from the same Judiciary. And later they are charged with contempt of court for disobeying a court injunction. Do we expect a fair trial from the court for those who have been arrested? It is said , in a court of cats, a rat cannot win a case.

The way forward

In logic, what the court did is called circular reasoning. Demonstrators accuse the courts of delivering biased judgments. The court grants an injunction to the demonstrators who ignore the injunction as it still comes from a biased court. As long as the accusation of the court being biased is not disputed, any action such as injunction and contempt of court remain biased too.In legal terms, the action of the court to grant an injunction and consequently to arrest demonstrators on the charges of contempt of court violate fundamental principles of natural justice. No one should be a judge of his own case. Two sides of the case must be heard by an independent arbitrator. In this case, the court is not an independent arbitrator.Section 38 of the Malawi Constitution provides for freedom of assembly and demonstrations. ” Every person shall have the right to assemble and demonstrate with others peacefully
and unarmed.” This Constitutional right cannot be overridden by a mere court injunction.Since the injunction and contempt of court violate fundamental principles of natural justice in this scenario, the administration of justice is also compromised, violating Section 32 (a) of the Malawi Constitution which says ” Every person shall have the right to lawful and procedurally fair administrative action, which is justifiable in relation to
reasons given where his or her rights, freedoms, legitimate expectations or interests are affected or threatened.In view of the above, the injunction and contempt of court are rendered null and void. All the arrested demonstrators must be acquitted unless they were personally involved in vandalism and looting during the course of demonstrations.

Rick Dzida
rdzida@gmx.com

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