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

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