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 http://mwnation.com/parliament-define-public-servants/ accessed 31 March 2014
[16] Section 87, Constitution of the Republic of Malaŵi, 1994

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