Speech by Ambassador Alan Eastham
Delivered at the law society of Malawi annual meeting
April 26, 2008

Having now roundly insulted every person in the room, I want to offer some observations on the profession as I perceive it, as a stranger to Malawi and one who has come up in a different system. 

First, the legal profession suffers, as do so many others, from Malawi’s economic conditions.  Many have described to me the enormous disparity in earnings and quality of life between the public and the private practices of the law.  I believe there has been some recent improvement, but there is much to be done to reduce the inequality between those who provide legal services for government or for the poor, and those who practice law privately.  It is a very good thing that membership in this society is provided at a reduced rate for those who are making the sacrifice of practice in government.

I think there is a related proposition, however, along the lines of the old adage “to whom much is given, of them much is required.”   I have learned from your Society’s leadership that a requirement of Continuing Legal Education and pro bono service by members of the profession is under consideration.  I am sure that the former is a good idea, and I think the latter, pro bono service, is so beneficial that it should be a moral imperative for every member of this Society.

I have met during my time here with a couple of groups of young U.S. attorneys and law students, who came to Malawi for the sole purpose of doing their own pro bono service, in the form of working with individuals under charges of various kinds to try to resolve some of the deplorable situations you find in the prisons here:  Those whose cases have languished for various reasons and who should simply not still be in jail.  I’m gratified that these lawyers took the time, effort and expense to come here to help, but I wonder why you – Members of the Bar and the Judiciary alike -- are not solving this problem.  I know many of you offer pro bono service and I congratulate you.  You should be doing more.  And for those who don’t, shame on you. 

Closing this topic, let me share a word by Learned Hand:  "If we are to keep democracy, there must be a commandment:  Thou shalt not ration justice.  "   

Malawians know a great deal about rationing.  Shortages require rationing of education, of employment, of fuel, of electricity, and even sometimes of food in this country.  But justice should never be subject to rationing that keeps people in confinement who should not be there.

We are also proud of the assistance we have offered to this Society and other institutions in Malawi to help to improve the administration of justice.  We have supported in particular your efforts to develop a modern and tough bill to define and regulate the Declaration of Assets by senior officials, an extremely urgent task for Malawi.  And we have supported the effort to introduce a carefully-drawn process of Plea Bargaining into Malawi’s jurisprudence. 

Some have told me the draft Declaration of Assets bill is too tough, that it will never pass the National Assembly.  I would challenge Malawians to tell me in plain language why that is so.  A public trust, a public office, requires that those who hold it should be, as the saying goes, purer than Caesar’s wife.  Now in Caesar’s case, he divorced his wife when she came under suspicion.  I would say that if a man or woman is unwilling to declare assets, in a way that assures the public for whom the public trust is held, then that person should divorce himself from the public trust and not seek or retain public office.  Let me then put myself firmly in the camp of those who favor a tough law and urge you, as members of the legal profession, to associate yourselves with it. 

The second bill, on plea bargaining, takes us back to the point about pro bono work.  The main point is to reduce the prison population, by resolving cases that are at present pending in court and where the defendants are sitting in jail.  It will also have a beneficial effect on the workload of the judiciary by reducing the backlog of pending criminal matters.  It will also reduce the homicide backlog in particular, since if plea bargaining were to be permitted, many cases where there is now a homicide charge could be resolved under other charges.  I hope that this Society, whose members have done so much to develop this bill, will advocate strongly on behalf of this long-overdue improvement to Malawi’s justice system.

Finally, let me return to where I and other speakers began this evening, with the imperative of trying to improve the profession, and the profession’s image among the public, but on a serious note.  Malawi’s young and developing democracy is something of which Malawians should be proud, but as is said sometimes in the United States, “The price of freedom is eternal vigilance.”  This normally refers in our case to external threats to liberty.  But in Malawi’s case, I would suggest that vigilance with respect to democratic institutions is required.  There is a strong tendency, at least among the political class, to litigate when politics would suit better.  We only need consider the multiple suits and referrals that attended the National Assembly when impeachment was in the air two years ago, not to mention the blizzard of Section 65 litigation that has struck Malawi and that could easily be forecast to come again this dry season, depending on developments in Lilongwe next week. 

The danger is that too frequent an appeal to the “rule of law” could produce a “rule of lawyers,” which in my view could stunt the development of genuinely democratic institutions, processes, traditions, and attitudes.   Malawi has put itself on the road to participatory, open, transparent, and inclusive democracy.  But too frequent reference to the judiciary, in matters that are squarely political, is contrary to this tendency.  One need only consider that recently a Justice of the High Court was obliged to issue an otherwise excellent and penetrating decision on the meaning of the words “in consultation with” in a particular part of the law.

Ladies and gentlemen, Honorables and Esquires, I thank you for your attention this evening.  I hope I have not gone on too long. 

Let me close this subject, and my talk, with a few more words by the noted American jurist Learned Hand:  Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.  While it lies there, it needs no constitution, no law, and no court to save it.