I have always believed that words shape the way we think long before arguments shape the way we decide. Certain words carry within them not just meaning, but memory -- a whole tradition of reasoning that quietly disciplines the mind. One such word is prudence. It is an old word, almost unfashionable now, yet it sits at the very heart of what law was originally meant to be.
Prudence is not cowardice. It is not hesitation. It is seasoned judgment -- the kind that understands that decisions echo beyond the courtroom, beyond the headline, beyond the satisfaction of being technically right. It is the wisdom that knows that consequences often travel further than intentions.
In Malawi today, much of our public debate about recent court decisions has been framed almost entirely around legality: who broke the law, who overstepped, who must pay. That is an important question, but it is also the easiest one. The harder, and more important, question is this: what happens next, and who ultimately bears the cost?
Because jurisprudence -- real jurisprudence -- does not end at the declaration of wrongdoing. That is where it begins.
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A court judgment is not a moral essay. It is a social act. It does not exist in isolation. It walks into ministries, into budgets, into fragile institutions, into a struggling economy, and quietly rearranges the future. Remedies are not symbolic. They restructure incentives, reshape behaviour, and redistribute risk across society.
To impose massive retrospective liability on a public institution is not merely to correct a past mistake. It is to rewrite the rules of future governance. It tells every regulator: act boldly and you may be punished years later; hesitate and you may escape blame. In such a system, fear replaces judgment, and caution replaces responsibility.
This is where public policy enters the conversation -- not as an excuse, but as a necessary discipline.
Public policy is society's way of asking whether an outcome, even if lawful, is sustainable. It is the line between justice and self-harm. It insists that courts ask not only "Was there a wrong?" but also "What kind of society emerges if we fix it this way?"
Our elders understood this instinctively. In traditional Malawi, judgments were never just about rules; they were about survival of the community. A village court did not aim to humiliate one party and glorify another. It aimed to restore balance so that people could continue living together the next morning. A decision that fractured the village, even if technically correct, was considered a failure of wisdom.
Modern law, with all its sophistication, sometimes forgets this ancient truth.
In mature democracies, courts are careful with remedies precisely because they understand institutional fragility. Regulators may be told they were wrong. They may even be required to compensate. But open-ended historical punishment is treated with caution, because it risks collapsing the very systems meant to protect the public.
This is not about "protecting the state". That phrase is misleading. What is being protected is society itself -- from remedies that feel righteous but leave behind institutional ruins.
Malawi's constitutional history partly explains where we are. After decades of executive abuse under one-party rule, our new democracy quite rightly empowered the judiciary. Courts were expected to be fearless, assertive, uncompromising. That phase was necessary. But in young democracies, there is always a second phase -- the harder one -- where power must be balanced with restraint, principle with consequence, authority with wisdom.
We are now entering that phase.
A regulatory system that exposes officials to limitless retrospective liability creates perverse incentives. It discourages action. It rewards delay. It teaches public servants that personal survival matters more than public protection. In the end, the state does not become more accountable; it becomes more timid.
This is not theoretical. It is structural. Fear is as dangerous to good governance as corruption.
That is why many countries have developed legal frameworks that protect regulators acting in good faith, while still punishing abuse, malice, or recklessness. Such systems do not excuse mistakes; they distinguish between error and betrayal. They recognise that regulation happens in real time, under uncertainty, while judicial review happens years later, under perfect hindsight.
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Judging foresight with hindsight is one of the quiet injustices of modern law.
Malawi must confront this honestly. Not by weakening the courts, and not by rewriting judgments, but by clarifying, prospectively, how much retrospective risk society is willing to place on those tasked with protecting it. That is a legislative responsibility, not a judicial one.
If we fail to do this, we will create a governance culture where officials learn the wrong lesson: that the safest decision is no decision at all.
And that would be a tragedy far greater than any single legal error.
Because law without prudence is not justice. It is simply power dressed up as principle. And a society that confuses technical correctness with wisdom eventually discovers -- too late -- that it has won its arguments and lost its future.
