In the year 2013, families of victims of the suppression of the Mau Mau uprising in Kenya, received £20m compensation from the UK government for being held accountable for the killings. The compensation was rewarded by Court after lodging complaints to it. “It should also be borne in mind that apart from creating economic and social challenges to such families, the mere fact that they were innocently killed warrants compensation from those responsible,” the Court said in establishing liability of the defendants as it decided in the favour of the complaining families.
Back in Malawi, 33 pro-independence protesters were killed in 1959 by British authorities who imposed a state of emergency to stop violent protests by political activists of the then Nyasaland African Congress, led by Hastings Kamuzu Banda, who were fighting for self-rule. Families of such victims, through lawyer Raphael Mhone commenced action in 2015, seeking reparation from the British government. The 33 unarmed people who were killed included three pregnant women. They were, actually, gunned down and buried in a mass grave at a beach in Nkhata Bay.
In the post-independent Malawi, 20 people were, on July 20th 2011, slain and 58 others injured mostly due to gunshots or police beatings during violence that erupted from mass anti-regime protest. The violent wave swept across the entire country in which 2 were killed in Blantyre, 7 in Lilongwe, 10 in Mzuzu and 1 in Karonga. Nineteen died from gunshots, while one was suffocated by teargas. To this day, no reparation has been made to a single family of those victims of state brutality and negligence apart from consoling them with tombstones.
Recently, what was supposed to be a celebration of our country’s independence on 6th July ended up being a sad day following the killing of eight people (mostly children) and injuring of 40 others in a crowd stampeded at the newly-built stadium hereinafter named ‘Bingu National Stadium’ The stadium is, to Malawi standard, magnificent and new. Such being the case, it has been the majority’s desire to have its ‘feel’ at any available chance.
The foregoing, relates the tragedy that occurred at the said Bingu National Stadium:
Facts in issue are that Minister of Information, Nicholas Dausi (MP), and Minister of Trade & Industry, Joseph Mwanamveka (MP) were among the many DPP officials who comprised an organizing committee for the said independence celebrations. In their preparations, this Court is told, they aspired to make the event ‘colourful’. It appears this ‘colouring’ was to be attained by bringing in more supporters of the ruling party clad in customized regalia. Indeed, it was observed that even the independence cloth, was burdened with the ruling DPP’s colours and the President’s face on it. I must admit, this has managed to come out as the strangest mockery of its exclusive type in ages across the globe. A funny democracy, Malawi appears to be!
This committee, as submitted to this Court, gave political orders to the stadium management, of which top official is one Mr. Erick Ling’ang’a, to open the gates at 10:00 am and no earlier. Otherwise, the management, employing its experience, scheduled and much-desired to open the access into the stadium as early as 06:00 am for a number of reasons:
Since the event was open to the public for free entry; and it was such an important and, arguably, exciting event; plus the desire of so many people to, at least, enter this facility, any competent management would easily predict an overwhelming inflow of people and put, in place, control measures. It appears the management, led by the said Mr. Ling’ang’a, lived to this expectation, but was unfortunately frustrated by what this Court describes as gullibility of the government officials.
These ‘government’ officials designed the delay to ensure availability of space for the ruling party supporters who were being ferried from distant places on cars and lorries. Some (which are most) of them were being ferried from such distant places that they, factoring the time they departed, were expected to arrive no earlier than immediately before 10:00 am.
This delay in opening the stadium resulted in a massive accumulation of people on the outside of the gates waiting for opening. When the gates were finally opened at the said 10:00 am, as instructed by the political powers, there was heavy fracas resulting into a stampede. The fracas was fuelled by anger of those who had been waiting on the outside only to realize that the gates were awaiting political supporters to get opened.
In efforts to control the fracas, the police resorted to beating and gassing the people, resulting into the deadly stampede of which cost is the said 8 deaths and 40 injuries.
Since the decision of House of Lords in McLoughlin v O’Brian , it is established law that a claim for damages can be made from death or injury to one’s relation or the fear of such death or injury caused by negligence of a defendant who owed and breached a duty of care.
In the light of the underlying facts, this Court seeks to place liability of such deaths and injuries upon the politically-motivated management committee which comprised regime agents in the names of Minister of Information; Minister of Trade and Industry; and others. The intention of this Court being to motivate and encourage the family members of the victims of such killings to seek the face of justice. Those injured are equally encouraged to do likewise.
First and foremost, the said cabinet ministers are at fault for maliciously interfering with the management of the stadium as they purported to service their selfish agenda. This apparent unacceptable intervention eventually came at the expense of peaceful and orderly entry of the people into the stadium. Now that the tragedy resulted, which they should have reasonably foreseen had they properly applied their mind, negligence is established on their part.
Furthermore, the propensity of the Malawi Police Force to using teargas and beating harmless people in handling public unrest mounts to use of excessive force and this is not in tandem with the laws of Malawi and applicable international law. It must be recorded, once more, that teargas is such a dangerous chemical agent which was designed for warfare ye banned as per the Chemical Weapons Convention of 1993 owing to its dangerous status. It is a very nauseating substance which makes breathing difficult, often leading to violent reactions.
By proudly using this prohibited dangerous chemical, it does not only show brutality of the Malawi Police, but also purely demonstrates lack of sufficient and appropriate crowd management skills. This, eventually, answers to incompetence which does not negotiate a tolerable excuse when liability arising from any established negligence comes on their desk.
It must be emphasized, at this point, that this Court follows the road of righteousness and justice. In travelling that road, neutrality and biasness are not opted. In this case, this Court would be biased if it exonerated the stadium management from wrongful doing simply because it was pressurized to do or not to do something. Such a position is left to advocates of mercy and not justice. Unfortunately, this court is not founded on the principle of advancing “mercy and compassion.” It is, rather, in existence to advocate for “justice and compassion”. If this Court sought the mercy side, it would mean that it is afraid of declaring the punishable wrongdoing. That, at any cost, won’t happen and when this Court says the organizing committee, to which the two honourable ministers are coming prominent, was negligent, and that the stadium management was equally negligent, this roadmap is in mind. It is already sad that their negligent acts resulted into deaths and injuries, and failure to hold them accountable would be the mother of all sadness.
As per Lord Hoffman in Re B CARCASS  case, the law operates a binary system in which the only values are 0 and 1. The facts either happened or did not. Having been left in no doubt to be resolved, this Court returns a value of 1 to the facts in treating them as having happened. In further establishing negligence, on the part of the stadium management, this Court finds that the stadium management owed a duty of care to manage proper and controlled entry into the stadium. By bowing down to the political pressure, probably in protecting their personal interests, they actually omitted their plans and schedule that would promote a public duty of order and safety and due to that omission, they breached their duty. As a result of such breach, the deaths and injuries occurred from the ensuing stampede. Such deaths and injuries are, therefore, unlawful and they permit recovery of damages.
Deaths arising from somebody’s negligence are not only distressful, but also unlawful and they invite remedy. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognises them as normal. The wrong that imperils life is a wrong to the imperilled victim. The Bingu National stadium tragedy resulting into deaths has left distressed victims behind, of whose relief is herein under summons. In aiding such victims, therefore, including families of those who tragically died, this Court wishes to urge them to commence action, in proper Courts, against the organising committee and the stadium management committee for reparation.
As regards to the success of such action, here is an encouraging story: In Dooley v Cammell Laird & Co Ltd  Donovan J. awarded damages to a crane driver who merely suffered nervous shock when a rope connecting a sling to the crane hooks snapped causing the load to fall into the hold of a ship in which men were working. The crane driver complained that he suffered nervous shock as he feared that the falling load would injure or kill some of his fellow workmen. Judge Donovan J. drew the inference that the men in the hold were friends of the plaintiff and later stated (at page 277 of his judgement) that: “Furthermore, if the driver of the crane concerned fears that the load may have fallen upon some of his fellow workmen, and that fear is not baseless or extravagant, then it is, I think, a consequence reasonably to have been foreseen that he may himself suffer a nervous shock.”
In this reference, we see that nervous shock, incited by tortuous breach of somebody’s duty of care invites reward upon the victim. We have also seen that a mere threat of injury or death is sufficient to cause such nervous shock. As to the present case, I see no parent or family relation with a heart so cold or hard enough to resist a nervous shock at such tragic deaths. If the law permits such class of people, as a mere workmate suffering such shock on circumstances which did not result into any death, to successfully claim damages, whatever would stand in the way of a family member to successfully claim damages would be, but a wicked thing. Wickedness and justice have never been friends and justice is always on duty to shoot wickedness down.
The design of this Kangaroo Court is to advocate for justice in our society. Therefore, for the sake of those beloved family members who lost their lives in such avoidable tragedy incited by someone’s negligence, and indeed for the sake of trauma and nervous shock suffered by the grieved, an action against those responsible for such negligence is hereby recommended!
Pronounced in this Kangaroo Court, the Court of Public Opinion, this 14th Day of July, 2017 by me Lord Denning.
The Kangaroo Court is a forum for activism on justice hosted as a private column on Nyasa Times by Lord Denning. Lord Denning is a penname for Negracious Justin, a law student and upcoming young activist in Malawi. Any views expressed in this column do not necessarily represent that of Nyasa Times. For any feedbacks to any contents of this column should be kindly directed to [email protected]