Wednesday, 30 April 2014

Hypothesis on Malaŵian surnames

Sunduzwayo Madise
30 April 2014

I am trying to build a thesis based on the hypothesis that if we group Malaŵian surnames using the first letter of surnames as follows:
Group Category

I have observed from observing elections and other data sets where surnames are used that Malawian names seem to be grouped in certain peculiar densities. In other words they are not evenly spread across the English Alphabet. Referring to the above table;

i. Groups 1 and 3 usually have the longest queues and concentrations. Most Malawians seem to have surnames starting with with letters in these groups.
ii. Group 5 has the least. This is mostly in my view due to the fact that our surnames are Bantu based and most of the letters in this group are not favourite for starting surnames in 
iii. Groups 2 and 4 form the second tier of concentrations.
iv. However between 1 and 3, 3 clearly wins hands down and usually by a ratio of slightly more than 2:1
v. Group 2 usually slightly edges group 4

If I were to rank estimations of our populace it would be (in order of concentration):
1. Group 3 with 52%
2. Group 1 with 25%
3. Group 2 with 12%
4. Group 4 with 10%
5. Group 5 with <1%

Now this hypothesis needs to be tested on real data set samples and may change. The groups may also be tweaked a little. But even as a hypothesis, I am convinced groups 1 and 3 are in the absolute a majority. Therefore the hypothesis, in my view, if it can be refined into a scientifically proven thesis, would form the basis for starting credible opinion polls and surveys in 
Malaŵi! But more importantly too the thesis if proved can assist institutions for example, suppose a school wants to enroll new students; putting them in clusters of the above groups and ensuring that each cluster is well manned proportionate to its density may reduce a day long exercise to one of hours.

Friday, 11 April 2014

Case note: [Dr] Jessie Kabwila v Electoral Commission, Electoral case No 2 of 2014, HC PR (unreported)

Sunduzwayo Madise, 10th April, 2014

On 1st April, 2014, in ‘Judicial Quagmire’[1], I did a case analysis of the decisions in four pre-election cases that were released in relation to the forthcoming general elections due on 20 May, 2014 in Malaŵi.  This is not meant to be an extension of that paper. However in that paper I argued against the views of Justice Mwaungulu that Kachere[2] and Nseula[3] were per incuriam. Having had the opportunity to read through the full decision in Kabwila v Electoral Commission and consulting the law, my views have since changed. For a case note, this is rather on the longer side of things but when one is dealing with the judgements of an eminent jurist like Lord Mwaungulu, maybe one can be forgiven because he himself is usually not so forgiving in his writing style, levels of complexity and length of his judgements.

On the 4th day of April 2014, Justice Dunstain Mwaungulu released a decision in the above matter styled ‘DIRECTIONS TO THE REPORTING OFFICER FOR SALIMA DISTRICT UNDER SECTION 40 OF THE PARLIAMENTARY AND PRESIDENTIAL ELECTIONS ACT’. Once can only assume that the Judge meant “Returning Officer” and not “Reporting Officer” (an error repeated several times in the judgement). But Lord Mwaungulu insists that it is not a judgement but “directions”. He says
The High Court is not required to deliver a judgment. The High Court is required to give directions. The direction can only take two forms: the High Court can direct the Reporting Officer to accept the nomination; the High Court can direct the Reporting Officer to reject the nomination.[4]

However as will be seen later, the Court did not just give directions but gave a well-reasoned judgement and in doing so rekindling the debate whether Nseula and Kachere are good law. I therefore call it the “decision”.

To start with Judge Mwaungulu has not disappointed. The decision was long awaited and was worth reading, of course with Google permanently on standby and online dictionaries frequently consulted. Vintage Mwaungulu! This was not just a decision about the candidacy of one Dr Jessie Kabwila, ‘firebrand human rights activist’ whose decision to ‘rather than influence government policy and action from an interest or a pressure group, decided to be involved in government directly by running for public office’ has not escaped the notice of the Court[5] The Judge holds that Dr Kabwila is a civil servant and would have been caught by section 51(2) of the Constitution but for the fact that she had obtained leave of absence. I find his reasoning in bypassing the hurdle using the leave of absence route ingenious and progressive but I disagree strongly with his holding and his reasoning that Dr Jessie Kabwila or indeed any worker in a public university and other such institutions are civil servants.

The Judge says Dr Kabwila’s service of contract was terminated by the leave of absence. From a labour law perspective, leave of absence does not per se terminate a service of contract, it merely suspends it. However in the case of the University of Malaŵi (UNIMA), the Judge rightly finds that the leave of absence in this case does terminate the service of contract and this because of the wording employed by Section H (13) (c) (vi) of Regulations and Conditions of Service for Academic and Administrative Staff in UNIMA:
Leave of absence shall mean non-paid Leave Granted to a domiciled Staff Member in order to enable him/her take up alternative employment or party or any other political office … The University is not obliged to reengage a Staff Member returning from leave of absence. (emphasis supplied)[6]

The Judge kinds of summarises the whole decision under “Introduction” and ends up by emphatically concluding that ‘the Electoral Commission and all sundry should regard this direction as final and there is no right of appeal against it to the Supreme Court of Appeal.’[7] There has been some debate whether a provision that limits one’s right of appeal to the ultimate or apex court is constitutional, but that may be a debate for another date. Suffice to say, I for one, view this limitation as wanting and worthy challenging. The High Court (HC) by its nature cannot be the final court of appeal in [some] matters where there is a higher court. And since the decision does more than just give directions, one may argue that even if the provision making the HC the final arbiter were to be upheld, this would only relate to the giving of directions (whether to accept or reject a candidate) but the other parts of the decision would in my view be fair legal game for adjudication because they raise other issues other than the simple question of whether to accept or reject.

The Judge emphasises that the new Constitutional order has created the EC as a tribunal with ‘quasi juridical powers that are subject to appeal to the High Court.’[8] The reasoning of the Judge is backed but authorities but it begs these questions:
i.                    If the EC is a tribunal, who were the parties before it?
ii.                  Is the expression of an opinion by a returning officer really a determination?[9]
iii.                Fundamentally, what was the petition before the tribunal? Who brought it up?

Would one reasonably say the Returning Officer or EC merely has/have to express an opinion? Or is it that the law is badly drafted? And if there are no parties to the matter as he says, then who brought the issues up?[10] Clearly there must be ‘an aggrieved’ party (the candidate?) Such would only be consistent with the adversarial system of our legal system. The Judge frequently uses the term the Returning Officer must bring the matter to the HC suo motu [on his own motion] but even if we were to take this argument to its logical conclusion, clearly such reference can only happen if there was a matter involving at least one party which the Returning Officer had decided to refer. Therefore to argue that there are no parties seems to be construing the law rather too thinly in my view. 

And does the law when referring to the tribunal refer to the EC as a body or to the Returning Officer? Since we have [at least] 28 [District] Returning Officers, can we really say these Returning Officers are sitting and considering “cases” as “Tribunals”? Or is the Tribunal their collective? Indeed his interpretation that the HC is only seized with an electoral matter by way of appeal, unless it is by judicial review, lands him into some difficulty when he later considers that section 100 of the Parliamentary and Presidential Elections Act (PPEA) allows one to directly petition the HC for post-election issues and the EC[11] is supposed to be joined as a respondent.  The way the decision has been “headed” also raises problems. Dr. Jessie Kabwila is the Candidate and the Electoral Commission is the Tribunal. But clearly it is a matter “between” (a term used by the Court itself) Jessie Kabwila and the Electoral Commission. And if the EC brought up the motion suo motu, should the “styling” not be different? It would also be worthwhile to see how the “parties” to the case, the EC and Dr Jessie Kabwila, styled and presented their documentation before they were told they were labouring under the mistaken belief that they were parties. But consistent with his holding that there are no parties, he makes no award of costs, and does not even make any reference to it.[12]

The Judge says where one is dissatisfied with the opinion of a Returning Officer, one may proceed by asking for an appeal to the HC or may use the route of judicial review. The Judge then raises what I consider a contentious statement and which I would like to make a reaction to. He says ‘[i]n those cases where the citizen proceeds by judicial review, the citizen cannot proceed in any way other than by motion for judicial review. It is contrary to public policy, so much so that proceeding in any other way would be frivolous and vexatious.’[13] Now view which public policy is this? Whose policy? I am always apprehensive when terms like “public policy” or “public opinion” are used to cloak things. Who sets up these policies? Who gauged these opinions? Are they not but vehicles to prevent those not well versed in the law to obtain relief?

The Judge seem to have found the words in section 3 of the Electoral Commissions Act problematic [the Commission shall be a body corporate etc.] because with due respect, these words prima facie are not consistent with a tribunal. However the Judge should not have bothered as this would not be unique to the EC. The Malawi Revenue Authority, for example, is a body corporate but also acts as a tribunal in revenue matters. Therefore section 3 would not itself determine whether the EC is a tribunal or not.

But maybe more practically, is the law not just being “wise” to the facts on the ground? Consider for example, the Gwanda Chakuamba elections case. How confident would the petitioner have been to be told that he had to take his matter first to the same EC that had declared the elections free and fair and had declared him not a winner? The EC in any post-election dispute would not imbue any confidence to any declared loser wishing to challenge his or her loss.  I would therefore disagree with the Judge that the legislator may have made an error in this requirement. I would argue that the legislator knew what was likely to be the “mood” in the immediate post-election period and therefore rightly provided that in a post-election dispute, the EC should be a respondent in a petition to the HC.

The Judge analyses section 40 of the PPEA and concludes that under it the Returning Officer only has three option open to him when he has received nomination papers ‘(a) form an opinion, (b) formulate reasons for the opinion and (c) inform the candidate.’ The Judge insists that he cannot reject any nomination and that power is reserved for the HC. I have problems with this reasoning. If the HC is hearing the petitions on appeal, then what is being appealed on? An opinion? Really? Although the Judges brushes aside the marginal note, I think we must give the section the full benefit of what it intended. The steps are that a candidate presents their nomination papers. The Returning Officer can either accept those papers and have the candidate taken as nominated or reject them. But the Returning Officer must not just reject the candidate, he must say why and that is where the forming of opinion comes in. And if the candidates agrees, then the candidate stands rejected but if he requires a referral to “a higher tribunal” then the rejection is stayed pending a determination of the HC either to [confirm the] reject[ion] or allow him to stand. That is my understanding of section 40(g) of the PPEA.

If one also reads section 39 of the PPEA and follows the reasoning of the Judge, then one wonders what happens to public servants who are disqualified? Is the Returning Officer really powerless to reject? I would think not. His conclusion that ‘[n]ota bene, the candidate is deemed nominated, for all purposes, unless the candidate is dead, withdraws the nomination or the nomination is invalid for reasons mentioned in the section and no other’ seems problematic to me in light of section 51(2) of the Constitution. In my mind one cannot be qualified and disqualified at the same time. They are mutually exclusive. The Judge in his latter part of the judgement actually does a “check-list” of section 51. Does the Judge then argue that the Returning Officer or the EC should not do the same thing? And if the EC or Returning Officer forms an opinion that one ought to be disqualified, should the Returning Officer not have the powers to reject subject to appeal?

The Judge says
What is a department of a ministry? There would have been no doubt in taking judicial notice that a public university, namely, University of Malawi, is in the Department of Higher Education in the Ministry of Education, Science and Technology and is, under section 25 (1) (a) of the University of Malawi Act, funded by Parliament through the Ministry of Education, Science and Technology[14]

On what basis I wonder would the Court take judicial notice of this fact. It is trite that the University of Malawi is a creature of statute and is not under the Department of Higher Education. It is not a Department under a Department or rather it is not a section of a department. I therefore cannot follow the Judge’s reasoning and how he arrives at the conclusion that the University of Malawi (UNIMA) is a Department of the Ministry of Education. The Judge uses a case in the Philippines which said:
Also noteworthy is the fact that the complainants before the [Civil Service Commission] CSC in Sojor were faculty members of a state university and were, thus, government employees.[15]

I have several questions. First, under what instrument was the state university in question created? Statute, charter or decree or none? Secondly, it seems quite obvious that that in the Philippines, and in the cited case, the faculty members are under the Civil Service Commission as is evidenced from the statement ‘noteworthy is the fact that the complainants before the CSC in Sojor were faculty members of a state university’. The Judge however makes another conclusion, and that is Government employees is the same thing as civil servants. This conclusion is not supported anywhere in the judgement, and obviously not from the case he has cited. In my view the Philippines case can easily be distinguished to the Kabwila case. I discuss the issue of government employees and civil servants below.

The Judge rightly in my view is correct by saying civil servants are those [directly] under the executive branch of government. However this is where I think the Judge misses the whole argument. The doctrine of separation of powers then says we have other branches such as the judiciary and the legislature. Because the Judge fails to discuss the other branches, he falls into error and concludes that judicial officers and legislative officers are also civil servants!

In my view there is a difference between been a government employee and a civil servant. Most public officers (my understanding of the term) would gladly accept that they are government employees but would vehemently deny that they are civil servants. Examples are judicial officers, police officers, military officers etc.

I believe the Judge may have read too much in the statement he quoted from Ng’ambi who uses the term “oversee”. Ng’ambi says ‘the University of Malawi and the University of Mzuzu… are regulated by an Act of Parliament, making them autonomous in operation, though they are overseen by the MoEST Department of Higher Education.’[16] Does this imply that UNIMA or Mzuzu University are Departments of the Ministry of Education? Such inference is to say the least not supported by the evidence.  And if they are overseen by a Department, would that make them departments also? Would the Universities then be sections? Clearly this leads to an absurdity.

In Nseula the Malawi Supreme Court of Appeal (MSCA) has been criticised for narrowly and erroneously inetepreting the phrase “public officer.” The Judge seems however, to go the other extreme and include in the envelope of civil servants anyone who falls under the phrase “implementing Government legislation and policy.” Granted the definition in the General Interpretations Act is wanting but the one that the Judge has found in the Penal Code is definitely much better. And what is even clearer from that is that civil servant is not congruent to public servant.  Let us be clear, I agree with the judge and others who have said public university lecturers and those working in parastatal organisations are public officers. However that they are civil servant is in my view grossly incorrect.  In the latter part of the decision, the Judge grapples to find terra firma to support his assertion that parastatal employees are civil servants. Most of the authorities he cites such as R v Whitaker are about public officers, something I do not disagree with.

Therefore conclusion that:
 Dr. Kabwila is both in public office and in the civil service as intimated by the Supreme Court in Nseula v Attorney and…, is exempt under section 193 (2) (c) as read with section 193 (2) (a) of the Constitution.[17]  
In my view is erroneous and not backed by up the evidence he has tried to demonstrate in the decision.  I would argue that under Nseula, Dr Kabwila would not be a public officer because the definition therein narrows it to “public officer in the civil service” and Dr Kabwila does not work in the “civil service” as envisaged by the MSCA in Nseula.

Let me at this juncture pose a question. I used to work at the Department of Legal Aid as a civil servant. I then had to resign to take up a teaching position at the University of Malawi, as a lecturer and a public officer. If I was a civil servant under both, why did I not just transfer my service from one Department to another? The reason is simple, I may have been a public officer all the time, but ceased being a civil servant when I joined the University of Malawi. The argument that the Constitution creates cadres of civil servants seems to me more a lateral reading of the law and not supported by what is on the ground. In my view the Judge goes into a conundrum by his effort to make sense of the “civil servants cadres’ maze” that he has created for himself. It may also be worth noting what Justice Tembo said in EC v Ngwale:
This Court checked the Collins English Dictionary (2009) which defines civil service as the service responsible for the public administration of the government of a country. It excludes the legislative, judicial and military branches.[18]

I think defining the civil service ‘as the administrative branches of government or the group of people employed by these branches’[19] is correct and Judge Tembo is correct that it excludes the legislative, judicial and military branches. Although Judge Tembo does not definitely conclude the “public officer versus civil servant” debate, it is clear that he holds the view that civil servant is narrower and is reserved for the administrative arms of government. This view is also shared by Judge Kenyatta Nyirenda in EC v Chimwemwe Kalua.[20]  And if I may be allowed to paraphrase what Judge Tembo quoted in Ngwale by substituting the word “public” in place of  “crown” the picture does become clearer that:

All civil servants are [public] servants, but not all [public] servants are civil servants, for the term is not applied to Ministers, the Parliamentary Secretaries and Parliamentary Secretaries Private Secretaries, or other holders of political offices, nor to members of the armed forces. Local government officers and the employees of public corporations are not civil servants, although the nature of their work and their conditions of employment bear many similarities.[21]

Judge Mwaungulu cautions against using dictionary definitions arguing that the phrase is much more complex. I agree but I also say there is no need to resort to complicated definition when the simple definition will do. At the risk of seeming being accused of passing a judgement without ample evidence, it would seem to me that the understanding of public officer vis-à-vis civil servant in Ngwale is much more in tandem with most people’s understanding than that it is in Kabwila.

The Judge on page 25 makes this strange statement:
The framers never intended that; they want anyone who is in public office, civil service, statutory body or local government not to ascend to the office of the Attorney General.

The Judge does not explain what he means exactly by this statement but on prima facie it would seem to be incorrect. Otherwise we would never have had Anthony Kamanga SC, Justice Mbendera SC, Justice Ansah and many more other public officers ascending to the office of Attorney General.

The Judge nay have described Dr Kabwila as a ‘firebrand human rights activist’ but this decision, if there was any doubt, shows that he is a “firebrand judicial activist”.

He definitely holds no punches and has used several words in his judgement that maybe highly contentious if not outright controversial He first states at page 7 that ‘[t]he Reporting[sic] Officer examines the document and forms an opinion and conjures reasons for such an opinion’ (my emphasis). Now clearly what the Returning Officer or what any respectable tribunal under the law does is not to “conjure up” reasons. It is as if the art of giving reasons has been reduced to one of trickery and magic.

Then at page at page 22 he makes this rather scathing statement:
Consequently, the distinction, canvassed for Dr. Kabwila vehemently and vociferously, that academic staff are not civil servants because academic staff are not governed by regulations and controls of central government is inane. (my emphasis)

Now “inane” means “lacking sense or meaning” or just plain “silly”. To call the arguments canvassed by counsel on behalf of his client as silly is to say the least “unjudicial”.  And when one looks at the argument, can one really say the argument canvassed that academic staff are not civil servants lacks sense and is silly? I do not think so. I for one think it actually is odd that the Judge comes to the somewhat strange and singular conclusion that academic staff of public universities are civil servants.

The Judge also has a dig at the MSCA. On page 24, the Judge says ‘[t]he Justices of Appeal never understood section 88(3)(1) of the Constitution’ (my emphasis).  Now whilst it may very well be true that the said Justices did not fully appreciate the meaning of the said section, I believe the Judge’s usage of the terms “never understood” is rather uncalled for in reference to another court, albeit a higher one. I should say I have noted with dismay the tendency of judicial officers, usually of higher ranking to make debasing or demeaning statements about judicial officers in the lower echelons. I find this unfortunate as it does not inspire any confidence in the judicially as a whole. In law school, we teach that the Court never makes a mistake, it errs. We teach the language of decorum. We expect no less from judicial officers.  The Judge in this decision surely could have used a better term to describe the lack of appreciation of meaning by his elder learned brothers.

The decision also shows that Judge Mwaungulu did not kindly take to the statements that were made by the MSCA in the Nseula case and uses this decision as an opportunity not only to rebut any criticism but also underscore his reasoning. In a way, the decision affords him an opportunity to explain his reasoning in Nseula ex post facto.  Although this is mostly obiter, it does offer an opportunity to appreciate the battle between the “judicial brains”. The attempts to dissect the MSCA Nseula decision are enlightening and at times fascinating.  For example the Judge responds to the accusation that the MSCA made that he had “overstretched” himself (how does one overstretch oneself anyway?) in Nseula by deciding on matters that were not before him. In civil procedure it is trite that the case must be decided within its four corners. The parties in an adversarial system define and delimit the scope of the case through their pleadings. However the Judge is right that it would be a cardinal sin to allow a manifest wrong to go undressed just because parties did not put their mind to it. However the solution is not in my view what the Judge did, seizing the moment and deciding on an issue not before him. What he should have done was to ask the parties to address him on that point and then he could have made a determination after hearing the parties. What he did amounts in a way to judicial ambush of parties, and whilst some judicial activism is surely good for the development of the law, it may prove unfair to the parties in the case if they did not have an opportunity to make representations. That said, that act of “overstretching” has proved good for the law and jurisprudence because it brought in a new discussion which would otherwise not have arisen! In the decision, the Judge definitely withholds no punches and takes judicial swipes at the MSCA at will. How this plays in the future is yet to be seen. For some judicial officers this may appear sacrilegious. But for me as a teacher of the law, it is provides a rich vein from which to draw and feed students of the law. It is the law in real action, viva lexis, where we are given a peek of what goes on behind the judicial “façade” or what jurisprudence scholars would call legal realism. It is always good for the law to have a voice of dissent, a voice that stops the law from wholesome moving into one direction. England had its Lord Denning. Malawi definitely has Lord Mwaungulu and if anything this decision has just reinforced that position. Here is a judicial officer who believes that a mistake was made and who is not willing to compromise one aorta of of his principles to follow the bandwagon.

This is what the Judges says at page 23:
The Supreme Court’s decision President of Malawi and the Speaker v R.B. Kachere, restricting the words “public office‟ based on their mention in the Constitution, and Nseula v Attorney General and Another confining the words “public office‟ to “public office in the civil service,” are per in curium the Constitution.

To be per incuriam literally translates to “through lack of care”. A judgement is said to be per incuriam if it was decided without reference to a statutory provision or earlier judgement which would have been relevant. It is a serious indictment, so serious that a decision per incuriam is actually at law a decision best forgotten, effectively a non-decision. Yes it may have affected the parties in the case but its legal effect is nil. It is a nullity, best hanged around a grinding stone and thrown into the deepest of Lake Malaŵi.

According to the doctrines of judicial precedent and stare decisis (let things stand) hierarchy of the courts determine the binding nature of decisions. Well not decisions really but reasons for the decisions (ratio decidendi). So in Malaŵi, the MSCA is the highest court, it is at the apex. Its decision bind all lower courts in Malaŵi. The HC is bound by decisions of the MSCA. HC decisions are binding on subordinate courts. HC Judges however have some latitude in that they can decide not to be bound on the basis that the decision in the higher court can be distinguished from the case that the court is dealing with or that it was per incuriam. If it’s the latter, the HC is not bound by it simply because the higher decision is at law no law at all.

So was the decision by the MSCA in Nseula indeed per incuriam? Judge Mwaungulu argues that the MSCA in Kachere did not ‘read section 40(3) of the Constitution as it was until the amendment to it in 2010’[22] He therefore concludes that ‘[i]n so far as the Supreme Court of Appeal never considered other pertinent constitutional provisions, the case cannot bind the Supreme Court or this Court.’[23] Apart from section 40(3) the Judges also argues that section 94(3) of the Constitution was never consulted. The Judge also faults the MSCA in Nseula and argued that the court in Nseula fell under the same error and also never considered section 40(3) of the Constitution.[24]

What did section 40(3) say before it was amended?
Save as otherwise on condition that in this Constitution, every person shall have the right to vote, to do so in secret and to stand for election for public office (emphasis supplied)

After the 2010 amendment it read:
Save as otherwise provided in this Constitution, every person shall have the right to vote, to do so in secret and to stand for election for any elective office. (emphasis supplied)

It is worth noting that the amendment was in reaction to the judgement by Judge Mwaungulu in Nseula that held that the President, Ministers and MPs are public officers.

Now let us examine the provision of section 40(3) clearly before it was amended. It becomes self-evident without going into much inquiry that an elected office is a public office. It follows that the President and MPs are public officers. The MSCA said in Kachere (Mtegha JA) said:

This is an ingenuous way of interpreting the Constitution. I have indicated earlier on the meanings attached to the words “President” and “public officer” by the General Interpretation Act. Applying the definition to the issues before us, there is no reason why we should construe the word “President” to mean also a public officer. Even in the present Constitution a public officer has been designated by the Constitution itself and there is no provision in the Constitution which says the President is a public officer. In the present Constitution, where a public office is created, the provision creating that office clearly stipulates that, that office is a public office… Applying the principles, the President is clearly not a public officer in the context of the Constitution. (emphasis supplied) [25]

And in Nseula this is what the Chief Justice Banda said:

The lower court held that the provisions of section 88(3) were unambiguous in making the President and other members of the Cabinet public officers. We find some difficulty in following the judge‘s reasoning in coming to that conclusion, because we have searched in vain and neither section 88(3) nor any provision in the Constitution makes members of the Cabinet public officers.

We have considered the Constitution as a whole and have looked at the use of the word “public office” where it appears in several sections. We are satisfied that having regard to the tradition and usages which have been given to the meaning of the word “public office” the interpretation which should be given to its use in the Constitution is in the strict sense of “public office” in the civil service. The “public office” does not connote “any public office of whatever description” as the Judge in the lower Court finds. It is too wide and it is not correct and certainly it is not in the manner in which it is used in the Constitution. (emphasis supplied)

I can only say Q.E.D[26]! Judge Mwaungulu has just demonstrated that indeed Kachere and Nseula are per incuriam. If one reads section 40(3) of the Constitution before it was amended, there is clearly no way the MSCA would have arrived at the decisions it did in Kachere and Nseula had it read section 40(3). By not considering section 40(3) the MSCA in both cases made grave errors which cannot be cured. They did not refer to an important statutory provision, to wit, section 40(3) of the Constitution. Kachere and Nseula are indeed per incuriam and Judge Mwaungulu is therefore correct, that he is not bound by it. This also means no HC or lower tribunal r should be bound by Nseula and Kachere. It is bad law.

For the record, these are the words that the MSCA used in Nseula when the case came on appeal from the decision of Judge Mwaungulu:
The question of whether the office of the President was public office was considered in the case of the President of Malawi and the Speaker v R B Kachere MSCA Criminal Appeal No. 20 of 1995. It was held in that case that the office of the President and that of the Speaker was a political office and not a public office. We have been informed by Counsel for the first respondent that he cited that case in the court below. The learned Judge made no reference to that case in his judgment. It was binding on the learned Judge in the court below. It was a decision of the final Court of Appeal in the country and he was bound to follow it, although he would have been entitled to express any reservations he might have about it or could have distinguished it if he could from the case which was before him. It is important that the principle of stare decisis should be followed for it creates certainty in the law and also provides an orderly development of the law.

The statement by the MSCA was actually a chastising one. In this decision, the Judge, in attempt to say, “wait a minute, what was that for”, says:
‘[t]he Supreme Court in Nseula v Attorney General, however, relied on President of Malawi and the Speaker v R.B. Kachere heavily. That case was not brought to the attention of the Court sub nomino. I sat at nius prius. I would certainly never have deliberately overlooked a Supreme Court decision brought to my attention’[27]

If indeed Counsel lied, then this is very sad and condemnable. The Judge, in a sign of judicial lamentation if there was ever one, says:
Curiously, in the Supreme Court of Appeal, without reading the record, concluded from a statement across the bar to the bench that Counsel had presented to the lower court the case of President of Malawi and the Speaker v R.B. Kachere.[28]

The Judge makes a valid point which is a judge of the HC cannot just ignore a decision of the MSCA. He or she must deal with it. He or she must either be bound by it or distinguish it or refuse to be bound on the basis that it is per incuriam. And it makes no difference that Judge Mwaungulu added that ‘even if the case had been referred to me, it would not have made any difference.’ If it is true as the Judge laments that counsel lied to the MSCA and the MSCA accepted this a statement of fact hook line and sinker without checking the record or otherwise verifying, then this is unacceptable. A lawyer has a duty to the court and one such duty is to be honest and truthful. A court also owes to itself and society to be diligent. To accept a statement on face value and “go to town” on another judicial officer of a lower tribunal for being ‘disobedient’ is a sign of systemic failure in the judicial administration system.

The decision of Kabwila v EC is a good contribution to legal debate and legal discourse as well as the shaping of our jurisprudence. The decision gives directions to the EC but does more than that.

Judge Mwaungulu has through this decision ably demonstrated that the decisions of the MSCA in Kachere and Nseula are per incuriam. It is a view that he has long held, but this is the first time that he has been able to lay it down in a judicial statement for all to see and take note. There was a section of the legal fraternity which held that Kachere and Nseula were decided for political expediency and were wrong (recall the Press Trust case saga?) Indeed the MSCA has sometimes come under criticism for attempting to be politically correct in some of its decisions. Nseula and the Press Trust case are some of these decisions. Amongst the legal fraternity, there is general agreement the Press Trust case as decided in the MSCA is bad law. Maybe with time, the same fate will befall Nseula.

But the definition of public officer is still at large!

[2] The President of Malaŵi and another v Reen Kachere and others 14 [1995] 2 MLR 616 (MSCA).
[3] Fred Nseula v Attorney General and another [1999] MLR 313 (MSCA). 
[4] At page 8
[5] Jessie Kabwila v Electoral Commission @ page 2
[6] @ page 36
[7] @ page 2
[8] @ page 3
[9] See page 7 of the decision
[10] @ page 8
[11] On page 5 of the decision there crops in the term “Law Commission”. In the circumstances of the discussion therein, I opine strongly that this is an error and should read “Electoral Commission”.
[12] Compare for example with EC v Mathews Ngwale HC/PR Misc Election Petition No. 5 of 2014 (unreported 24 March 2014), EC v Chimwemwe Kalua HC/PR Misc Election Petition No. 4 of 2014 (unreported 28 March 2014)  and EC v Dr Safuli HC/PR Misc Election Petition No. 3 of 2014 (unreported 28 March 2014)
[13] @ page 5
[14] @ page 17
[15] Civil service Commission v Court of Appeals and Others GR No. 176162, October 9, 2012, the Philippines Supreme Court, referring to Civil service Commission v Sojor (GR NO 168766, May 22, 2012)
[16] @ page 17
[17] @ page 35
[18] @ page 7
[19] Black’s Law Dictionary quoted in EC v Ngwale @ page 5
[20] HC/PR Misc. Election Petition No. 4 of 2014 (unreported 28 March 2014)
[21] EC v Ngwale @ page 7-8 quoting Constitutional and Administrative Law by Jackson and Leopold (2001) (8th edition) at 379-380
[22] @ page 23
[23] @ page 24
[24] @ page 25
[25] The President of Malaŵi and another v Reen Kachere and others 14 [1995] 2 MLR 616 (MSCA).
[26] quod erat demonstrandum – that "which had to be demonstrated" has been done.
[27] @ page 24
[28] @ page 26

Tuesday, 1 April 2014

JUDICIAL QUAGMIRE- Case analysis the decisions of the Malaŵi Courts in the pre-election cases

Sunduzwayo Madise
1 April 2014
Warning; the opinions I express here are my personal opinions and understanding of the law. Others may and will surely disagree with me!
Here we go again, another judicial "quagmire" as my good friend “KC”[1] likes putting it!

The recent decisions by the High Court (HC) on the eligibility of several persons working in the public universities or serving on the board of a parastatal organisation has once again raised the debate of what is defined by “public office”. And the differences in interpretation have not helped matters either! Let me at the outset caution those who take a definition applied in a specific case or cases or applicable to a specific law to imply this is a general definition applicable in all circumstances. This is wrong. Everything must be looked in context.

Let us examine the cases that we have and see where they have landed us. The pioneering cases started in the 1990s after the Multi- party elections and the enactment of a new democratic constitution.

The first was The President of Malaŵi and another v Reen Kachere and others [1995][2], in which the Malaŵi Supreme Court of Appeal (MSCA) held that the President, Ministers, Judicial Officers are not “public officers” in terms of the Constitution, although these officers perform functions of a public nature. In Fred Nseula v Attorney General and another [1997][3] (“Nseula-HC”), which came after the Kachere case, Justice Dunstain Mwaungulu of the HC found that the President and Ministers are public officers for purposes of the Constitution. He gave what is called a “broad and purposeful” interpretation to the term “public officer”. The matter went on appeal to the MSCA which overruled the decision and stuck to its reasoning in Kachere. The MSCA in Nseula [1999][4] (“Nseula-MSCA”) emphasised what has become the now controversial statement, that a “public officer” under the Constitution must be narrowly interpreted to mean in the strict sense of the “civil service” i.e. one employed in the civil service. The MSCA found the definition of “public office” in Nseula-HC ‘too wide’. The MSCA said the constitution is not like any other law and that the first point of reference and guidance in its interpretation must be itself. The MSCA looked at the provision in the Constitution which creates the office of the Attorney General which says ‘the office … can either be the office of a Minister, and therefore political or it can be a public office’. The MSCA therefore concluded ‘“Public office” in this context can only mean the office in the civil service, thereby making a distinction between a political office and a civil service one’. The MSCA therefore provided what is termed the “narrow” interpretation of the phrase “public office”. In Nseula-MSCA the conclusion was that the office of Minister is not a public office.  According to the common law doctrine of judicial precedent, when a superior court like the MSCA makes a decision, the principle (ratio decidendi) on which the decision is made becomes binding on all courts below. This is regardless of whether the MSCA may have erroneously interpreted the law. This is what creates certainty in the law. If the MSCA realises that it made an error, it behoves on it to correct that error when an opportunity arises. To date, no contrary decision has come from the MSCA and therefore the “narrow” definition of “public office” in Nseula-MSCA is still for this purpose the law. Justice Dorothy nyaKaunda Kamanga succinctly puts down the doctrine of judicial precedent in EC v Dr Safuli,[5] that ‘[u]ntil the [MSCA] has an opportunity to reverse itself on the meaning of the term public office or the High Court is courageous enough to effectively distinguish the case of Nseula v Attorney General and another, the High Court has to uphold legal principles and follow the ratio decidendi [reasoning] of the [MSCA] in its narrow interpretation of the term public office.’[6]

Fast forward to 2014. We then have several aspirants barred by the [Malaŵi] Electoral Commission (EC) on the basis that they are public servants (as interpreted in the Nseula-MSCA case).

The first decision to be released was EC v Mathews Ngwale[7]. Mr Ngwale is a lecturer at Kamuzu College of Nursing, a constituent college of the University of Malaŵi, a public university. Justice Michael Tembo relying on the Nseula-MSCA authority held that Mr Ngwale was not a civil servant (public servant) for purposes of the Constitution and therefore he qualified to be nominated. Justice Tembo held ‘membership of the civil service is restricted to Departments of Government. Clearly the University of Malawi is not a Department of Government for one to consider its members of staff as civil servants or service in the University of Malawi as civil service.’[8]  Then came the case of EC v Dr Jessie Kabwila[9]. The official decision has not been circulated but Justice Mwaungulu ruled that a lecturer at a public university is a public officer and is therefore barred. His reasoning is essentially the same as he held in the Nseula-HC case. However the judge found that Dr Kabwila was on leave of absence and therefore she qualified. Next were two cases that were decided on the same day. The first in terms of matter numbers involves a lecturer from Mzuzu University (another public university), Dr Samuel Safuli. In EC v Dr Safuli,[10] Justice Dorothy nyaKaunda Kamanga ruled that a lecturer at Mzuzu University (a public university) is not civil servant (public officer) for purposes of the Constitution and were therefore eligible to contest. The other was EC v Chimwemwe Kalua,[11] a case which really should not have even gone to court. The EC argued that Mr Kalua did not qualify because he was a board member of the Malawi Broadcasting Corporation (MBC), a parastatal. Justice Kenyatta Nyirenda found that a board member of a parastatal organisation is not by that virtue a civil servant (public officer) as required by the Constitution emphatically stating that he ‘cannot by any stretch of imagination. be said to have been holding a position in the “civil service”’.[12] Judge Nyirenda added that even if Mr Kalua has been adjudged to have been a public officer, there was evidence which the EC had deliberately ignored that showed he had resigned (similar to the evidence the EC used to allow the “Presidential Aides” to compete). The reasoning of both Judge Kamanga and Judge Nyirenda is on the lines of the Nseula-MSCA and Ngwale. It would seem the fact that these are all institutions created by specific statutes and not governed by the Public Service Act also played a crucial albeit background role.

So we have four decisions, two say university lecturers are not public officers, one says they are and the other says board members of parastatals are not. Three are in communion and one is on a tangent of its own.

I believe the starting point is that the MSCA erred in its decision in Nseula-MSCA and applied a very strict and narrow definition of “public office”. Clearly public servant cannot equal to civil servant. In that regard Justice Mwaungulu is right. Does that mean Justices Tembo, Nyirenda and Kamanga are wrong? No, they are right too because they are following the doctrine of judicial precedent which is part of our law. However under the doctrine of judicial comity, courts are supposed to ensure that they are in communion with each other. They must present united fronts and must [as far as possible] decide similar cases similarly. Therefore when you have a split decision from the bench (the court) then there is cause to worry, especially when the courts are of the same level in hierarchy, in this case HC. So ideally Justice Mwaungulu, whilst disagreeing with the MSCA (and I agree with his disagreement) should nonetheless follow the decision in Nseula-MSCA. He should have, for the sake of judicial comity, followed his brother Judge Tembo in Ngwale. Then the Judges in Safuli and Kalua should also have followed the holding of Justice Mwaungulu and that of Justice Tembo. This is what the legal doctrines of judicial precedent and stare decisis (let things stand) requires and demands of him.

But there is also something which people need to appreciate. The EC asks aspirants to declare whether or not they are civil servants (not public servants). Clearly this is pursuant to the narrow definition in the Nseula-MSCA case. And aspirants have to make a statutory declaration (swear under oath). But the problem goes deeper. Whilst the EC asks aspirants to indicate whether or not they are civil servants, their rejection is on the basis of being public officers or holding a public office, another yardstick altogether. Justice Nyirenda calls it shifting goal posts or shifting gears in an intriguing manner.[13] In law under the doctrine of estoppel, a person is prohibited from asserting one thing to another, letting the other act on that assertion and then essentially revoking that assertion or renegading on it. In other words, once the EC has asked aspirants to indicate whether or not they are civil servants, the EC is estopped from turning round and disqualifying them on the basis that they are public officers. Public officer and civil servant are not one and the same thing. They may be similarities, but one is broader than the other. Nseula-MSCA may have defined public officer limited to the civil servant but that itself is problematic and it is where I believe the problem started. By trying to reign in the definition of “public officer” the MSCA ended up imprisoning it.

So are public university lecturers public officers in general? The answer in my opinion is definitely in the affirmative. Are public university civil servants? The answer is definitely in the negative, an emphatic no, nada, nihil, nta! On this point I therefore disagree with the views of Justice Mwaungulu in EC v Dr Kabwila that Dr. Kabwila, as academic staff of a public constituted university, created by and under an Act of Parliament and financed by government and public funds, was a civil servant and, therefore, in public office under the Constitution. Dr Kabwila may [have] been a public servant but is/was definitely not a civil servant. The Court got it wrong here. It was rightly stated in the Ngwale, Kalua and Safuli cases that public servant or public office is broader than civil servant or civil service. The latter is a subset of the former. So Nseula-MSCA erred by equating public office to civil servant and thereby providing a very narrow definition. Justice Mwaungulu in Kabwila falls in a similar but opposite trap by equating civil servant to public office and providing an enlarged definition. Justice Tembo was correct in EC v Ngwale that ‘[e]mployees of the University of Malawi may be public servants holding public office, being servants of a public body, but they cannot certainly be called civil servants or be considered to be in the civil service.’ The other problem that I have with the decision in EC v Dr Kabwila is that having so defined a public servant, (using ordinary meaning), I fail to understand how the Judge then construes “leave of absence” to mean the same “resignation”. Shouldn’t he use both “rules” of interpretation throughout?  In my view the Judge should have used the mischief rule to get out of the quagmire he had created for himself.  Dr Kabwila having obtained leave of absence, was no longer ‘tied’ to the University and therefore not earning from the public purse. Therefore any mischief that the law intended to cure by providing that such officers must first resign would be cured by the leave of absence. She would therefore be qualified on that basis, but by not equating “resignation” to “leave of absence”. As he stated in Nseula-HC, the phrase must be given its ordinary meaning.[14] I do not see how “leave of absence” translates to “resignation” under ordinary meaning.

What do I think? I believe Justice Mwaungulu is right and the MSCA was wrong and the other Judges are also right because they are following the law (judicial precedence and stare decisis). The danger here as I said at the beginning is to think in lay terms. The term public officer as defined in Nseula-MSCA is a 'term of art' and does not mean the same as public officer or servant in everyday language or as used in other statutes. The other danger is a trap that EC had set for itself. By adopting the term “civil servant” as a requirement, the EC has scored an own goal. The other problem that the EC has is that whilst it has adopted Nseula-MSCA to determine eligibility, in its arguments before the court, it has gone back to adopt the principles in Nseula-HC. For use of a better word, the EC is in a state of confusion about its own cases and the Courts have not received this deliberate confusion kindly either.

Interestingly though, as noted by Justice Nyirenda, the EC has made reversals in the cases of Wakuda Kamanga and others when ‘evidence’ was brought in to ‘prove’ that they had ‘resigned’ from the civil service as Presidential Aides. Of course whether Presidential Aides are civil servant is another question that needs to be litigated. In my view they are not and the EC was wrong to reject them. To me they are not even public officers per se. They are on personal contracts with the Presidency, and their job offers no degree of permanency and is at the “pleasure of the President”. But that is a subject for another day. However the conduct of the EC in this regard falls short of objective and above reproach. For example whilst they were prepared to accept letters of resignations from Presidential Aides, they refused to accept one from Mr Kalua, and it is a no-brainer that with such double standards EC should be condemned to pay legal costs! There is another issue, how do you prove resignation? Can you conjure up a resignation? I think you can. So it may be possible for people to pretend to have resigned on the face of it whilst they have not. But without further proof, the letters may have to suffice.

The EC needs to have amongst its panel of Commissioners or amongst its key staff a lawyer or a legal department comprising several lawyers and paralegals who should be advising the body at all times. People have argued that this is unnecessary because the Chairman of the EC is no less than a Justice of Appeal of the MSCA. I say this is missing the point. Justice Maxon Mbendera SC, JA is not serving at the EC as a judicial officer. He performs administrative functions as required by the law and the dictates of the institution which he chairs. His duty at the EC is not to hear matters and pronounce a judgement upon them. Just like any lawyer or judge will require a lawyer to litigate for him or her, the same applies here. It is also similar to when you have a Judge serving as Director of the Anti-Corruption Bureau (ACB). As Director of the ACB the judge becomes a prosecutor (top corruption buster) and no longer serves as a Judge for the duration of his deployment. Another similar situation arises when a Judge is appointed Attorney General (AG). The Judge no longer has to serve the President and his or her government. I have previously expressed my reservation at this tendency of debasing the judiciary by appointing amongst its flock some to serve as AG or ACB Directors, on the basis that it is not only demeaning to the said judicial officers but also flies in the face of the doctrine of separation of powers. Both the AG and ACB Director fall under the Executive branch of Government. But I must be understood properly, by this I do not mean to lower the status of the AG or ACB Director. The AG is the head of the Malawian Bar (all lawyers admitted to practice) and the bar and the bench (comprising all the judicial officers) are separate legal institutions and must be deliberately kept so. But that may be an argument for another day. During the last years, the EC had one Arthur Nanthuru Esq., a qualified lawyer as a Commissioner. He provided a lot of legal guidance to the EC (despite that it had a Judge as Chair). The EC needs that or needs at least to have in-house legal counsel to advise on these matters. Looking at the cases, it is clear that the EC has suffered from the lack of in-house counsel. There was talk the other day of up to ten legal opinions being provided on the current matters! Ten? For what? A waste and abuse of tax payer’s money if you ask me. The fact that the EC sent two letters to Dr Safuli also does not augur well with an institution that is coherently run. First the Chairperson of the EC writes to him that he has been validly nominated and a day later, another letter, (from someone lesser possibly but I cannot attest to this), rescinds this decision and notifies that Dr Safuli that he has not been validly nominated because he is, yes, a public servant (not a civil servant)! Confusion confounded! Justice Kamanga in EC v Dr Safuli says this ‘has the potential to raise questions as to the integrity and efficiency of the electoral process.’ In reference to the way the EC treated Dr Safuli she adds, ‘[t]he manner in which [his] nomination papers have been managed casts doubts on the electoral body’s capability to discharge its duty of verifying nominated candidates in an efficient and effective manner before their names are gazetted.’ This is scathing to say the least, and Justice Nyirenda was not sympathetic either in Kalua. The EC does need to hire external lawyers since clearly any in-house lawyer is likely to be overwhelmed with work and cases. However the in-house lawyer would provide a bridge with the external lawyers and in my view assist the EC much better. Relying on external lawyers only may be good for litigation but not good for day-to-day operations. And it is in the day-to-day operation that irreparable mistakes maybe made making the job of any external lawyer hired extremely difficult. In this case, I feel for the lawyers who has so far appeared for and have been hired for the EC to litigate these matters as well as the post-election cases. They have to bear the blunt and wrath of the Courts for mistakes made by the lack of organisational preparedness on the part of their client.

The other thing that needs to be done is what Justin Dzonzi, lawyer and civil right activist and Commissioner of the Malaŵi Human Rights Commission has said.[15] Parliament needs to define what “public office” and “public officer” means. The definition in of the General Interpretation Act that “public office” as ‘any office the holder of which is invested with or performing duties of a public nature’ while “public officer” is defined as ‘a person holding or acting in any public office’ is unhelpful. What does it mean to say one is holding or acting in a public office? The Corrupt Practices Act (CPA) had defined public officer much better that ‘“public officer” means any person who is a member of, or holds office in, or is employed in the service of, a public body, whether such membership, office or employment is permanent or temporary, whole or part-time, paid or unpaid, and includes the President, a Vice-President, a Minister and a member of Parliament’. But then once again this is a definition restricted to the CPA (and it has come under challenge in the court on more than one occasion). The CPA has further defined public body as “the Government, a statutory body or any other body appointed by the Government” thereby aiding in the definition of public officer. It is worth noting that Malaŵi does have a Public Service Act and the Malaŵi Public Service Regulations (MPSR) which regulate employment in the “public service”. What is interesting is that “public service” under the MPSR means “civil service” and there is no debate about this. Therefore we have another definitional quagmire which needs resolution and as Justin Dzonzi proposes, let Parliament do its work.

One must also recall it was the same Nseula-MSCA and Nseula-HC quagmire that resulted in some quarters of society demanding that the State President must resign first before presenting her nomination papers. Clearly to interpret that that the Constitution would require the President to resign and leave a presidential gap leads to an absurdity because the Constitution envisages that there shall always be at all times a president unless incapacitated in which case there has to be certification of the incapacitation.[16] That is why even after elections, the holder of the office of President continues serving until another or himself or herself (if re-elected) is sworn in. Amongst the things that the law and nature hates, vacuum and uncertainty are amongst the worst.

I would conclude by quoting Justice Mwaungulu in Nseula-HC that ‘I think the phrase “public office” must be given its ordinary meaning.’ Parliament needs to provide ordinary meaning to this phrase. If Parliament then wishes to create an exception or exceptions, let it do so, otherwise it would be better for everyone if the General Interpretations Act (GIA) was amended to provide an “ordinary meaning” which every Chimwemwe and Ulemu would understand.

Therefore and until this quagmire is resolved, it would be advisable that since the GIA has ‘failed’ to define public officer satisfactorily, then each definition must be restricted to the law that is being looked at. In the case of the Constitution, guidance must first come from itself and not otherwise. For now, in these matters, even if we may not like it, Nseula-MSCA is the law.

[1]     I first heard the term quagmire from my Kondani Chinagwa years ago when we were attending a workshop in Lilongwe.
[2]     14 [1995] 2 MLR 616 (MSCA).
[3]     [1997] 2 MLR 294 (HC). 
[4]     [1999] MLR 313 (MSCA). 
[5]     HC/PR Misc Election Petition No. 3 of 2014 (unreported 28 March 2014)
[6]     At page 12
[7]     HC/PR Misc Election Petition No. 5 of 2014 (unreported 24 March 2014). 
[8]     At page 8
[9]     HC/PR Misc Election Petition No. 2 of 2014 (unreported 26 March 2014).
[10]    HC/PR Misc Election Petition No. 3 of 2014 (unreported 28 March 2014)
[11]    HC/PR Misc Election Petition No. 4 of 2014 (unreported 28 March 2014) 
[12]    At page 22.
[13]    EC v Chimwemwe Kalua
[14]    Fred Nseula v Attorney General and Another [1997] 2 MLR 294 (HC) at 313 per Mwaungulu J.
[15]    Edwin Nyirongo ‘Parliament define public office’ The Nation (31 March 2014) available at accessed 31 March 2014
[16] Section 87, Constitution of the Republic of Malaŵi, 1994