UTM’s decision to challenge court injunction obtained by Muli Brothers and Others not to comment on the matter between Sunrise Pharmaceuticals Limited and Chombe Foods Limited Vs The Attorney General raises a fundamental question whether people are free or not free to comment on issues of public interest.
It is fashionable in Malawi for individuals to gag the media or other people from commenting on issues that in the public interest. Former Admarc CEO Foster Mulumbe and former Roads Authority CEO Trevor Hiwa are some of the individuals who have obtained court injunctions preventing the media from commenting or writing about their corrupt cases.
While a court injunction is normal and acceptable as temporary relief, the manner in which courts give these injunctions is cause for worry. Are they not supposed to assess the merit of each case and act accordingly? Why should courts grant an injunction on issues of public interest? In Malawi court injunctions have been used to defeat the ends of justice or gag members of the public from legitimately commenting on issues of public interest.
For example, MSB Debt Collection Company has failed to recover K6.1 billion from loan defaulters because courts wantonly give court injunctions. Chadwick Mphande lamented in The Nation a few months ago that courts are frustrating the process. He said: “You will find cases where one company will take an injunction in Blantyre, when we vacate it, the same company will take another injunction in Zomba. Again, when we vacate that injunction the company will go to Lilongwe to take another injunction on the same matter.” Do these injunctions enhance or defeat justice? Incidentally, the courts know very well that government used public money to bail out these ungrateful and undeserving loan defaulters. Or are the courts pretending they do not know?
The assumption that commenting on an issue can influence the judgement or that the defendant may not receive fair trial does not hold water. Judicial officers are qualified people who cannot be swayed by media or public comments or political parties. Judicial officers make decision based on evidence tendered in court by both the defendant and plaintiff and not comments from the public. They follow the law.
Any issue involving government or public officials cannot be private because they are servants of the people. Whatever decision they make is subject to public scrutiny. This means that any decision taken by the president, minister, attorney general or civil servant is subject to public scrutiny which includes challenging their actions or reasonableness of their actions. It is equally true that those who deal with government should also be prepared to accept public scrutiny in their dealing with government officials. Members of the public are free to raise eyebrows if they feel there is something fishy. It is their right to express their views on matters of public interest.
Public scrutiny is an essential component of our democracy because it provides checks and balances, and enhances transparency and accountability. Access to Information Act also provides that individuals and companies that do business with government cannot hide information from the public.
If anyone is free to access information, why should they be gagged to express themselves on an issue of public interest? Individuals and companies that find comments to be offensive, they should sue for defamation and not gag or threaten people. What are they hiding?
The judiciary should be the last institution in Malawi to stifle freedom of expression through unnecessary granting of court injunctions. People will lose trust in the judiciary. It will only confirm their perception that courts are for the poor. The rich use their money to buy justice, avoid public scrutiny and silence critics.