Inefficiencies and Corruption in Justice Systems
The independence of judges from partisan or corrupt influence is universally valued and is a goal as old as judging itself. One symptom of both can be delays that seem calculated to benefit some litigants at the cost of others. The fact that a loss of trust often flows from reports or experiences of delay should make timeliness a necessity and not an optional goal to be met when other goals are fulfilled. Recent events in Malawi offer a cautionary tale in the link many draw between delays and malign influences.
The Nyasa Times of Malawi recently reported “inefficiency, and persistent delays” in the Malawian justice system. The MHRC (Malawi Human Rights Commission) received 28 submissions from October 30 to November 30 with “the majority focusing on the judiciary’s failure to conclude cases in a timely manner.”
Malawi has a mid-ranked justice system in international Rule of Law rankings. The recently released 2024 World Justice Project Rule of Law rankings placed Malawi 70th out of 142 countries, scoring low in “criminal justice” (74/142; 0.44), “absence of corruption” (87/142; 0.42), “regulatory enforcement” (87/142; 0.46), and “open government” (92/142; 0.45).
Malawi ranks 56th internationally in “civil justice” (0.56) with low scores in accessibility and affordability (97/142; 0.50), freedom from corruption (78/142; 0.50), and freedom from unreasonable delay (64/142; 0.43). Malawi’s criminal justice system has similarly low scores in investigation system effectiveness, freedom from corruption, reduction of criminal behaviour, timeliness, and impartiality. At another time it would bear examining how the world as a whole is doing in these measures and what is proving positive and challenging.
For years, writes the Nyasa Times, “Malawians have cried foul over prolonged delays in court processes, which leave them languishing in uncertain and often financial ruin.” Lawyers within the justice system blame the lack of proper accountability on the perpetuation of the “culture of impunity, where justice is not served but auctioned to the highest bidder.”
Despite assurances from the judiciary that it remains “open to robust and open reform,” concrete reforms remain elusive. There is a gap between the constitutional mandate of accountability and the perception of impunity.
When are delays linked to corruption?
When justice is not timely the opportunities for manipulation are multiplied. Just as litigants have different appetites for timeliness, groups within civil society can find justice delays serve other purposes that do not require changing results of individual cases. ‘Justice’ that appears rushed can support the conclusion the proceeding was a political feint in which the justice system lends a hand. The more frequent experience of ‘languishing’ as in the reports from Malawi support the conclusion that those suffer who have no strings to pull, where “justice” is sold to the highest bidder.
The connection becomes even more enmeshed when delay and corruption are both deeply baked into the architecture of a justice system. Reforms have winners and losers. Resistance to reform can stem from both honest and corrupt sources. But resistance to reform that can fairly be sourced to privileges enjoyed by the participants and not the ultimate users should spur on both honest incumbents and reformers.
International rankings should have a suasive component: countries must be encouraged to recognise the value of improvement and to seek reforms that will be reflected in their ranking. The incentives to improve the performance in justice systems are many and it should be the work of Canada and other higher ranked justice systems to offer hope in both reason and example. In many places outright fear remains an important deterrent to seeking justice. As reported in the Nyasa Times, “institutionalized corruption discourages victims from speaking out for fear of reprisal or futility.” Multiple previous attempts to reform the Malawian judiciary have left judicial credibility “in tatters.” The article ends bleakly saying, “Malawi’s judiciary risks becoming a symbol of oppression rather than a beacon of hope.”
Though Canada ranks 12th out of 142 overall for Rule of Law, our civil justice score has always been our lowest ranked factor. Canadian civil justice is high in freedom from corruption and improper government influence and relatively high in effective enforcement, accessibility, impartiality, and effectiveness of alternative dispute resolution mechanisms. Canadian civil justice, however, scores low in affordability (74/142; 0.56), freedom from discrimination (81/142; 0.51), and freedom from unreasonable delay (62/142; 0.44 – only two ranks higher than Malawi). Malawi’s public struggles with corruption should provoke our sympathy and whatever help is wanted. Our shared low scores in affordability, timeliness, and freedom from discrimination should be as worrisome in Canada as it is in Malawi. Reprisal and futility are both facilitated by inefficient and ineffective justice systems. By recognising their similar origins and effects we should be emboldened to root out the delays that continue to afflict Canada’s justice system.
