Sunduzwayo Madise, 10th April, 2014
INTRODUCTION
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.
PREAMBLE
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.
ELECTORAL
COMMISSION (EC) TRIBUNAL NIUS PRIUS [COURT
OF FIRST INSTANCE OR ORIGINAL JURISDICTION]?
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
ELECTORAL COMMISSION HAS NO POWER TO REJECT?
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?
UNIMA
IS A GOVERNMENT DEPARTMENT?
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.
PUBLIC SERVANTS ARE CIVIL SERVANTS?
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.
AN ASIDE: ATTORNEY GENERAL
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.
NO
HOLDS BARRED? AN OPPORTUNITY TO REVISIT OLD BATTLES?
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.
SO
IS NSEULA AND KACHERE PER INCURIAM?
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.
COUNSEL
LIED?
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.
CONCLUSION
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!
[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
[27] @ page 24
[28] @ page 26
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