Ruling on ex parte Kajolowera made on 31.01.17

IN THE HIGH COURT OF MALAWI

MZUZU DISTRICT REGISTRY

MISC. APPLICATION CAUSE NO. 01 OF 2017

BETWEEN

THE STATE

AND

HONOURABLE GEORGE CHAPONDA ....................... 1^ST RESPONDENT

THE ATTORNEY GENERAL ............................................ 2^ND RESPONDENT

THE STATE PRESIDENT OF MALAWI .............................. 3^RD RESPONDENT

EX PARTE:

MR CHARLES KAJOLOWEKA ........................................ 1^ST APPLICANT

THE REGISTERED TRUSTEES OF YOUTH AND SOCIETY .. 2^ND APPLICANT

THE REGISTERED TRUSTEES OF CCAP

SYNOD OF LIVINGSTONIA ............................................. 3^RD APPLICANT

THE REGISTERED TRUSTEES OF CENTRE FOR

THE DEVELOPMENT OF PEOPLE ..................................... 4^TH APPLICANT

CORAM:  HONOURABLE JUSTICE CHIRWA

V. Gondwe/Mwafulirwa ............... Counsel for the Applicants      

Hon. Kalekeni Kaphale (SC)....... Counsel for the Respondents

A. Kanyinji ...................................................,,,,. Official Interpreter

E. Msumuko .......................................................... Court Reporter

RULING

INTRODUCTION

This is an application by the Respondents for the following orders:-

(a)       an order that the order of this Court granting the leave to move for Judicial Review made on the 12^th day of January 2017 be vacated on grounds that the Court does not have the jurisdiction in a judicial review application to review executive action or inaction but only review administrative action and also on the ground that the application does not disclose an arguable case or serious question fit for further inquiry at a judicial review application;

(b)      to remove the Attorney General as a party to the application as none of his decisions or actions or inactions are under inquiry in intended judicial review application;

(c)     to remove the 2^nd, 3^rd and 4^th Applicants as parties to the application as they do not have sufficient standing in the case.

The Respondents filed Skeletal arguments in support of their said application.  There are also filed on behalf of the Respondents the Respondents’ Response to the Skeletal Arguments filed on behalf of the Applicants in opposition to this Application and Further Respondents’ Arguments in Response to the Skeletal Arguments filed on behalf of the Applicants in opposition to this application.

The application is opposed by the Applicants.  Skeletal Arguments have been filed on behalf of the Applicants for this purpose.  There are also filed on behalf of the Applicants Supplementary Skeletal Arguments.

BACKGROUND

On the 11^th day of January 2017, an Ex-parte Application for leave to move for Judicial Review and for Injunction Relief was taken out on behalf of the Applicants.  An Affidavit verifying the Statement of Facts sworn by CHARLES KAJOLOWEKA, the 1^st Applicant, was filed in support of the said application.

On the 12^th day of January 2017, this Court being satisfied that there is a case fit for further investigation at a full inter-parties hearing of a substantive application for judicial review proceeded to grant the said Order for leave to move for Judicial Review to the Applicants.

It is trite that leave should be granted, if on the material then available the Court thinks, without going into the matter at depth, that there is an arguable case for granting the relief claimed by the applicant (see R v Inland Review Commissioners, ex-parte National Federation of Self-Employed and Small Businesses Ltd [1982] A.C. 617 at p. 644 per Lord Diplock).  The test to be applied in deciding whether to grant leave to move for judicial review is whether the Judge is satisfied that there is a case fit for further investigation at a full inter partes hearing for a substantive application for judicial review (see R v Secretary of State for the Home Department, ex-parte Rukshanda Begum [1990] C.O.D. 109 C.A.), hence the decision to grant the leave herein.

ISSUES FOR DETERMINATION:- 

The Respondents having correctly, in this Court’s view, submitted that the parties to any proceedings are bound by their pleadings it, therefore, follows that the issues to be determined by the court are only those arising from those pleadings. In this case, the issues arising from the application are as follows:

(a) Does this Court have jurisdiction in a judicial review application to review executive action or inaction?

(b) Does the Applicants’ application disclose an arguable case or serious question fit for further inquiry at a judicial review application?

(c) Is there any good reason/ground why the Attorney General should be retained as a party to these proceedings?

(d) Do the 2^nd, 3^rd and 4^th Applicants have any sufficient standing in these proceedings?

DETERMINATION

The first question to be determined is:

(a)      Does the High Court have jurisdiction to review executive action or inaction?

There is no doubt in this Court’s mind that the Constitution of the Republic of Malawi (“the Constitution”) is the supreme law of this nation of Malawi.  This is evident from the wording of Section 5 of the Constitution which provides as follows:

      ”5. Any act of Government or any law that is inconsistent with the provisions of this Constitution shall, to the extent of such inconsistency, be invalid.”

There is also no doubt in this Court’s mind that in Malawi all persons, are bound by the provisions of the Constitution and that none, whatsoever, is above the law.  This is also evident from the wording of Sections 4 and 12 (1) (f) of the Constitution which provide as follows:

        “4.This Constitution shall bind all executive, legislative and judicial organs of the state at all levels of Government and all the peoples of Malawi are entitled to the equal protection of this Constitution, and laws made under it.”

        “12(1) This Constitution is founded upon the following underlying principles –

(f)        all institutions and all persons shall observe and uphold this Constitution and the rule of law and no institution or person shall stand above the law.”

It should be apparent from the wording of the above-quoted sections that both the 1^st and the 3^rd Respondents, irrespective of their positions, are bound by these constitutional provisions.

The Constitution also proceeds to saddle the responsibility of ensuring that there is adherence to this supreme law of the land on the judiciary. This is evident from the wording of Section 9 of the Constitution which is as follows:

“9. The judiciary shall have the responsibility of interpreting, protecting and enforcing this Constitution and all laws and in accordance with this Constitution in an independent and impartial manner with regard only to legally relevant facts and the prescriptions of law.”

This position of the law is confirmed by the Malawi Supreme Court of Appeal in the case of Attorney General v Fred Nseula and Another, MSCA Civil Appeal No. 18 of 1996, where it was held, inter alia, that

“Courts have a constitutional responsibility to review all constitutional decisions because they are protectors and guardians of the fundamental law of our people.”

Turning specifically to the jurisdiction of the High Court, which this Court is, there is Section 108 of the Constitution which provides as follows:

“(1) There shall be a High Court for the Republic which shall have unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law.

(2) The High Court shall have original jurisdiction to review any law, and any action or decision of the Government, for conformity with this Constitution, save as otherwise provided by this Constitution and shall have such other jurisdiction and powers as may be conferred on it by this Constitution or any other law.”

It should be clear from the wording of Section 108 (2) above quoted that it is within the jurisdiction of the High Court to review actions or decisions of the Government where the word ‘Government’ includes its Executive Branch and thus the Respondents. And given that the Constitution does not limit the jurisdiction of the High Court only to administrative actions or decisions any attempt to limit the Constitutional powers of the High Court by the Respondents would thus tantamount to usurping the powers of the legislature which is the only organ given the responsibility to enact laws by the Constitution (see Section 8 of the Constitution).

This Court is also inclined to concur with the contention of the Applicants that the decision in the case of Mkandawire and Others v Attorney General [1997] 2M.L.R 1relied upon by the Respondents as authority for the proposition that executive powers to appoint ministers are not subject to judicial review now has no foundation in law. This is so because the case of Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (per Lord Riskill at p 418) on whose strength it was decided is no longer valid law following the decision in the case of R v Home Secretary ex-parte Bently [1994] Q.B.D. 394.

But even if it were not for the Bentley case just cited, it is the considered view of this Court that the Constitutional powers given to the Courts by Sections 9 and 108 of the Constitution cannot be ousted merely by invoking the terms ‘executive powers’ or ‘prerogative powers.’ Under the Constitution, there is no such a distinction made as to whether the powers are executive or administrative.  Such a distinction may thus only be in the perceptions of the individuals exercising such powers.

There is further no doubt in this Court’s mind that it is the abuse of such executive powers or prerogative powers which had led to the enactment of this unique Constitution which demands that appropriate principles for its interpretation be developed and employed by the courts to reflect its unique character and supreme status(see Section 11(1) of the Constitution).Blindly following foreign and local cases which do not reflect the unique character of the Constitution would thus lead to its violation.

It is, however, also encouraging to note that the Respondents had backtracked on their initial position that executive powers cannot be a subject of judicial review.  As a matter of fact, there are quite a number of cases, some which have been cited by the parties hereto in their Skeletal arguments, which show that even the so-called ‘executive powers’ or ‘prerogative powers’ can be a subject of judicial review.  One of such cases is R v Secretary of State for Foreign and Commonwealth Affairs, ex-parte Everette [1989] Q.B. 811 where the Court held that prerogative executive power to refuse the issuing of a passport was judicially reviewable, notwithstanding the fact that the decision involved the exercise by the minister of a prerogative power’.  The other case is that of R v Home Secretary ex-parte Bently (supra) where the court held as follows:

“...there must be cases in which the exercise of the Royal Prerogative is reviewable, in our judgment.  If for example, it was clear that the Home Secretary had refused to pardon someone solely on the grounds of sex, race or religion, the Courts would be expected to interfere and in our judgment, would be entitled to do so.”

And the third of such cases is the case of Patson v The Attorney General 2008 (2) BLR 66 (High Court of Botswana) where the Court observed that where the exercise of a prerogative power affects the rights of individuals, the same are subject to judicial review.

Now, while it is not in dispute that the President enjoys some immunity in relation to civil suits whilst in office, such immunity does not extend to orders of the courts concerning the rights and duties under the Constitution (see Section 91(1) of the Constitution).  Further, it is noteworthy that the Constitution as the supreme law of the land requires the President to exercise “all other powers reasonably necessary incidental to the functions of his or her office in accordance with this Constitution” (see Section 89(5) of the Constitution). If the courts did not have the powers to review the executive powers as contended by the Respondents, who would then determine that the same were exercised in accordance with the Constitution? There is no other organisation under the Constitution given such a responsibility other than the judiciary as provided for in Section 9 of the Constitution.

Turning to the decisions complained of by the Applicants in Form 86A, the same being decisions which have, allegedly, been made by the Respondents in total disregard of their constitutional powers and obligations ought, no doubt, to be the subject of judicial review by the judiciary. Thus, even if it be that not all executive powers were under our Constitution subject to judicial review, the present would be.  It, however, remains the fortified view of this Court that, given the nature of the Constitution, all constitutional powers whether you prefer to call them ‘executive powers’ or ‘administrative powers’, are a subject of judicial review, otherwise the authority to exercise power of the State would not have been made ‘conditional upon the sustained trust of the people of Malawi .....’ per Section 12 (1) (c) of the Constitution.  The requirement that those who exercise the powers of the State are to be held accountable, in this Court’s judgment, automatically calls for a review of the exercise of such powers.

In conclusion of the discourse on this question, it is the finding of this Court that the High Court, which this Court is, has jurisdiction to review all constitutional powers i.e. both administrative powers and executive powers.

The second question to be determined is:

(b) Does the Applicants’ application disclose an arguable case or serious question fit for further inquiry at a judicial review application?

From the nature of the arguments advanced by the parties hereto on this issue, this Court was being tempted to proceed with the determination of this case on its merits. However, out of the fear of usurping the powers of the court which is to handle the substantive judicial review proceedings, it has thus purposely restrained itself from doing so. Suffice to say, that given the nature of the test to be applied in deciding whether to grant leave to move for judicial review as per the case of R v Secretary of State for the Home Department ex-parte Rukshanda Begum (supra), it remains the fortified view of this Court that the issues raised by the Applicants in Form 86A filed herein are serious questions fit for judicial review.

In answer to the discourse under this question, it is the finding of this Court that there are serious questions raised by the Applicants in Form 86A which are fit for further inquiry at a judicial review hearing.

The third question to be determined is:
(c) Is there any good reason/ground why the Attorney General should be retained as a party to these proceedings?

It is not in dispute in this case that all the decisions complained of by the Applicants herein are those of the 1^st and 3^rd Respondents.  Why then has the 2^nd Respondent been made a party to these proceedings?

The Applicants contend that the 2^nd Respondent has been joined in these proceedings based on Section 3 of the Civil Procedure (suits by or against the Government or Public Officers) Act which provides as follows:

“(1) Save as may, otherwise expressly be provided by any Act, suits by or against the Government shall be instituted by or against the Attorney General.  Such suits shall be instituted and tried in the same manner as suits to which the Government is not a party.

(2) The Attorney General or other person authorised by the Attorney General to act for the Government in respect to any judicial proceedings shall be deemed to be the recognised agent by whom appearances, acts and applications may be made or done on behalf of the Government.”

It is the considered view of this Court that the contention of the Applicants here while relying on the Malawi Supreme Court decision in the case of President of Malawi and Another v Kachere and Others 1995] 2MLR 616 where it was held that the Attorney General is the correct party to be sued in cases where the action complained of was committed by the President of the Republic in his official capacity, is no doubt, flawed on the grounds that judicial review proceedings, which the present proceedings are, are not suits within the wording of Section 3, quoted above, which specifically refers to suits and not proceedings generally.  It would thus follow that the joinder of the Attorney General as a party to these proceedings when there is no decision made by him which can be the subject of judicial review is clearly a misjoinder of a party.

In answer to the question under discourse, it is the finding of this Court that there is no good ground for joining the 2^ndRespondent as a party to these proceedings. Consequently, this Court proceeds to order that the 2^nd Respondent do cease to be a party to these proceedings.  It is so ordered.

The fourth and last issue to be determined is:

(d) do the 2^nd, 3^rd and 4^th Applicants herein have any sufficient standing in these proceedings?

The Respondents’ position as per their submissions is that the Applicants do not have such an interest.  Here they are relying on the Malawi Supreme Court of Appeal Case of Civil Liberties Committee v Minister of Justice and Another [2004] M.L.R. 55 which they contend is binding on this Court.

The Applicants, on the other hand, contend that being NGO’s with clear objectives of promoting democratization and the rule of law they, therefore, do have sufficient interests in these proceedings.  The Applicants are also relying on the same case of Civil Liberties Committee v Minister of Justice and Another (supra).

The Civil Liberties case relied upon by both the parties hereto in this Court’s view reaffirms the need for a party to have a sufficient interest in the matter being pursued before the court.   This Court fully subscribes to the views expressed by the Malawi Supreme Court of Appeal therein.

Paragraph 53/1-14/11 of the Rules of the Supreme Court which provides for who can apply for judicial review states:

“The overriding rule governing the standing of the applicant to apply for judicial review is that the court must consider that he “has a sufficient interest in the matter to which the application relates”.......... If the applicant has a direct personal interest in the relief which he is seeking, he will very likely be considered as having a sufficient interest in the matter to which the application relates.  If however, his interest in the matter is not direct or personal, but is a general or public interest, it will be for the court to determine whether he has the requisite standing to apply for judicial relief.  Clearly, the formula “sufficient interest” is not intended to create a class of person, popularly referred to as a “private attorney general,” who seeks to champion public interests, in which he is not himself directly or personally concerned, under the guise of applying for judicial review.”

The Constitution also requires all persons seeking the promotion, protection and enforcement of rights under it in court to have a “sufficient interest” in the matter before the court. (See Section 15 (2) of the Constitution). The provision states as follows:

“Any person or group of persons, natural or legal, with sufficient interest in the promotion, protection and enforcement of rights under this chapter shall be entitled to the assistance of the Courts, the ombudsman, the Human Rights Commission and other organs of the Government to ensure the promotion, protection and enforcement of those rights and the redress of any grievances in respect of those rights”.

Turning to this application, it cannot be disputed that the 2^nd, 3^rd and 4^th Applicants are organisations concerned with the championing of the rule of law in Malawi.  It can also not be disputed that the application at hand seeks to enforce the rule of law, it being alleged that the Respondents have not properly exercised their constitutional powers.  It would thus seem to follow that there is a direct relationship between the said Applicants and the subject matter of these judicial review proceedings.

In answer to the question under discourse, it is the finding of this Court that the 2^nd, 3^rd and 4^th Applicants do have a sufficient standing or interest in these proceedings.

CONCLUSION

Save that the 2^nd Respondent ought not to have been joined as a party to these proceedings, this Court finds the Respondents’ application to be unsuccessful. It is, thus consequently dismissed. 

In the premises, it is the order of this Court that the matter ought, therefore, to proceed to the substantive judicial review proceedings.  It is so ordered.

COSTS

The costs of any court proceedings are in the discretion of the Court and normally follow the event.  In this case, the event is that the Respondents have not successfully prosecuted their application.  In the premises, this Court is inclined to exercise its discretion on costs by awarding the same to the Applicants in any event.  It is so ordered.

Dated this 31^stday of January 2017

Chirwa J

JUDGE

On calls to deport Dr Chaponda from Germany and have him arrested at KIA

By Mfundisi

I do not recall any Cabinet Minister to have become so well knows as one Dr Chaponda. No matter how the 'Maizegate' inquiry ends, there will not be a household that does not know the name Chaponda. Well, maybe I exaggerate. But whichever this ends, Dr Chaponda will remain a known entity. If one were to conduct a search among Malawian internet and social media users, I bet the name Chaponda would come katops.  Politically it may have ramifications, depending on how it all ends. He may come out of this bigger than a bulldozer (what else is there?) or he may become a submarine and go under. For now, love or loathe him, Chaponda is man-of-the-moment. 

Now we all know there is an injunction against him in Court restraining him from performing the duties of Cabinet Minister, at least I till 31 January 2017. It has also been reported that he has travelled to Germany, allegedly in official duties. I have taken note of the media reports that place him in Germany as well as the reported acknowledgement of the German Government. However, as I am conscious that this matter is likely to go to Court for Contempt proceedings, allow me to give him the benefit of doubt and use the word allegedly.

So of late, there have been at least two notable calls that can be discerned on social media regarding this alleged trip. One is to the German Government to 'deport' him, and the second that the moment he sets foot on mother Malawi, he must be arrested on touchdown at KIA or whatever other port of entry he may choose. Now let us pause and consider these calls on their merits. I will start with the second issue.

For a start, there is no order barring Dr Chaponda from travelling anywhere. There is an Injunction Order restraining him from discharging the functions of Cabinet Minister. If it is true that he has travelled to Germany; then whether he has done so officially as a Cabinet Minister will be a question of fact. It has been reported that the Applicants who obtained the Restraining Order will apply to Court for Contempt of Court Proceedings. Until and unless the Court rules in agreement with their application; there is no contempt. There may be an allegation of contempt but it has to be proved in Court. It is only after the Court has found a person guilty of contempt and sentenced that person to time in prison that the question of arrest would arise. A charge of contempt is not an arrestable one. In fact it has been previously held that a guilty verdict on contempt does not disqualify a person from standing for office. I have problems with that position but it is there (remember the JZU contempt case?). Therefore calls to have Dr Chaponda arrested, should it be true that he has travelled on official duties, lack the sanction of law. Such an arrest would be illegal. Dr Chaponda could successfully sue for false imprisonment. Now that would be rich.

On the second issue of the German Government deporting him, the question would be on what basis would he be deported? What wrong would he have committed against German Law to warrant such a deportation? Also note that if he has gone as a Cabinet Minister, as alleged, then he is in effect representing the Malawi Government. Any deportation without due process would be an affront to International Law. Without an arrest warrant or some other barring Order, the German Government’s hands are tied on this matter. They may disapprove, but they are helpless. Once again, it is important to reiterate that there is no order barring Dr Chaponda from travelling anywhere. An Injunction Order cannot stop someone from travelling. Of course if proved that he has disobeyed it; the result may be the commencement of contempt proceedings. But it is a personal choice. As the Attorney General said; contempt of court proceedings are personal in nature. The person alleged to be in contempt is the one called before the Court to answer to the charge. It will be up to the Applicants to prove in Court that there has been contempt. That burden does not lie on Dr Chaponda. If the Applicants were to stay put, there is nothing the Court would do in the meantime. The Court may, of course, at its next hearing on its motion commence such proceedings, having taken judicial notice of the fact that it has been widely reported that Dr Chaponda may have allegedly travelled to Germany in defiance of its Order. After all, it is Contempt of Court, and Courts normally do not like that at all. These proceedings are a trial within a trial. But it is only after a successful prosecution of contempt proceedings that ramifications can result. 

But I would doubt that even a guilty verdict following a charge of contempt would prevent someone from being issued with a VISA. It may be a serious charge but in the great scheme of things, it is simply a misdemeanour. A fine usually results in such guilty findings. But maybe it is time Courts started realising that fines are not working and started sending Contemnors to jail.

In conclusion, therefore, if indeed Dr Chaponda has travelled to Germany as a Cabinet Minister; he will neither be deported nor arrested at KIA. However, that does not mark the end of the story. As pointed out, there will now be the small matter of contempt that may follow. Now that is something worth paying attention to.

What’s all this fuss about Judicial Review?

By Mfundisi

In the past days, the ‘Malaŵian’ section of social media has been abuzz with the matter before the Mzuzu High Court.[1] A Malaŵian and some Civil Society Organisations have sought Judicial Review of events surrounding the now infamous Maizegate and Commission of Enquiry appointed by the President.[2] Now the purpose of this article is not to discuss the Maizegate or the merits of the matter before the Court. This article is aimed at clarifying some of the issues around the matter before the Court.

Judicial Review

Judicial Review is a legal process that originated in England. It came to Malaŵi as part of the English Legal System which we adopted as part of our colonial history. Judicial Review is a specialised part of what is called Administrative Law. It is common in countries whose legal system is based on the Common Law. The Common Law is a legal system that developed out of local customs in the mid-ages in England.[3] In a way, it is similar (although not exactly) to Customary Law. It emerged as a body of rules to largely address procedural remedies.[4] The development of the Common Law was not through Statutes (Acts of Parliament) but rather through judicial decisions. It was, therefore, Judges who developed and continue to develop the Common Law. It is for this reason that it is sometimes called Judge-Made Law. So contrary to what may have been written, the practical reality is that Judges do in fact make law. This is to distinguish it from the other forms of laws which are made by Parliament. The Common Law today embraces another form of law called Equity. Equity was a body of law that developed to address substantial remedies where the Common Law was seen as being rigid. Although we now have Statutory Law, the Common Law, and Customary Law as part of our law in Malaŵi, the system is still called the Common Law System.[5]

What distinguishes the Common Law from other legal systems is that it is an Adversarial System. This means adversaries ‘fight over’ some legal issues before the court. Sometimes the fights can be bitter, but they are fights of words and legal technicality as opposed to fists. There are therefore basically two sides to a matter. There may be more than two parties, but there will usually be two main adversaries. In a way, it is not too dissimilar to the secondary school debates where you have the Proposer and the Opposer. It is these two sides that argue their case before the Court. When we say Court, we are not referring to the building where the matter is heard. We are referring to the Judge or Magistrate or any presiding judicial officer(s). In an Adversarial System, the Judge is a is a neutral arbiter who must decide on the matter. His/her duty is to listen to both sides of the argument and adjudicate the dispute (come up with a decision) based on the law. The duty of the Adversaries is to convince the Judge that their version of events as supported by the law is the correct one. The Judge does this by applying the law to the facts. It is highly important that this is clearly understood. I have read a lot of comments in this case, and in other cases, where people have made not-so-flattering remarks about the Court. We forget that it is not the Court that brought the matter before itself, but the parties to the dispute. The duty of the Court is to simply adjudicate the matter based only on what has been presented before it, and nothing else. If there is anything worth remembering; it is that the Court is a neutral arbiter. The Court is the one that gets moved by parties. If the parties do not go to Court, the Court will not do anything. Let us remember that.

But what is Judicial Review?

This is a type of a “court proceeding, in which a judge reviews the lawfulness of a decision or action or failure to act, by a public body exercising a public function.”[6] It is, therefore, concerned with three things: 

1. Decision 
2. Action
3. Failure to act

The decision, action or inaction must be by a public body. A public body may be a person working in public capacity or a public entity. Judicial Review is, therefore, concerned about the processes rather than the decision itself, unless the decision is manifestly unlawful or wrong. Therefore the real parties to a Judicial Review proceeding are the State and whosoever is being called upon to answer. These are called the Respondents. The application is usually made by citizens or groups or bodies that feel that the public body or person has failed to discharge their public duty. Put simply, in Judicial Review proceedings, the State calls upon one of its organs [Respondent(s)] to answer to some ‘complaint’ that a member of the public or some other body has made. Now, who is the State? The State is an embodiment of all of us. We comprise the State. We are therefore collectively the ones in Judicial Review proceedings asking the Respondents to explain their decision, action or inaction. It is us asking the Respondents to answer. Now that is sobering! Judicial Review is a way of supervising “the administrative decision making” process. Because of its nature, it is “a fast, effective and powerful way to convince a public body to reconsider a decision or force them to take action they should be taking.”[7]

On the oft-cited issue that no decision has been made therefore no Judicial review may lie, this is what Justice Chikopa said:

There are two ways of looking at this … First is to consider whether as a matter of general principle no judicial review should lie in every case where a public office or officer claims to have made no decision on the matter before him. The answer should be in the negative. There will be instances where a public office or officer decides not to make a decision. The complaint in that instance will be the public officer’s or office’s very inability or unwillingness to decide. We think that in those instances courts should allow sufficiently interested citizens to move for a review of the officer’s or office’s decision not to decide. If the Courts did not they would be party to allowing capricious public officers and/or offices hide behind such inability/unwillingness and deny citizens what is otherwise their entitlement. We, therefore, refuse to throw out the Applicants’ application merely because the Respondent claims to have made no decision …[8]

In terms of the procedure, before the Court hears an application for Judicial Review, there is a preliminary process that must be followed. The legal term is called granting leave. This means the Court has given permission for the application to be made. In other words, the Court can refuse to grant leave where it considers that the application is vexatious, frivolous or raises no arguable or triable issues. Vexatious refers to an action brought simply to annoy or frustrate but which has insufficient grounds for winning. Frivolous simply refers to an action that may best be described as being merely silly or trifling. The purpose of this process is to weed out claims of this type. An application for leave to commence Judicial Review proceedings is normally filed ex parte. This means it is heard only from one side, the Applicant. There may be circumstances in which the Court may order that an inter partes hearing be done. This is where the Court wants to give the Respondent(s) an opportunity to be heard on whether leave should be granted or not. However, the default position is that the applications are made ex parte. When the Court refuses to grant leave, then that is the end of that application. It suffers a still-born death. Now where the Court grants leave, there will be some interim ancillary orders or reliefs that the Applicants would have asked (prayed) for. This is where it becomes tricky. On the grant of leave, the Court may also grant the interim reliefs that have been prayed for. These are mostly in the following forms:

• Injunction – a court order prohibiting a person from doing something or requiring them to do something;[9]
• Stay of proceedings - a halt or stop to proceedings, apart from steps allowed by the rules or by the terms of the stay (maintain status quo). A stay can be granted after the decision has been implemented.
• Interim declarations[10]

Now the grant of any interim relief is always discretionary. The Court may refuse to make such a grant. It is up to the Applicants to convince the courts, at face value (prima facie) that it is in the interest of justice to grant such a relief. Now the term interest of justice has raised a lot of debate. What does it really mean? When a court makes a determination, the ‘winning’ side says the interest of justice has been served while the losing side laments that the interest of justice has not been served. How is it then possible that in the same one case, justice can both be served and not served? Well, the answer to this is that there is a difference between justice and justice according to law. The courts dispense justice according to law. As individuals, we all have our own perceptions of justice. It is imperative therefore that we distinguish this from the justice dispensed in Court. So what am I really saying? No matter the outcome of a case, justice is always served. The law always triumphs. This is because the Court, as a neutral arbiter in an Adversarial System decides the case based on the facts and evidence before the Court, and not what is in the public domain. In determining an issue, the Court applies the law to the facts. That is what the process of judicial adjudication can be simplified to. That is justice according to law.

Now I did say earlier that the default position for application for leave for Judicial Review is that they are done ex parte. Therefore it is normal that where an injunction is granted as an interim relief upon leave being granted in Judicial Review proceedings, it will be granted ex parte. Put in another way, there is nothing amiss with an injunction in an application for Judicial Review being granted ex parte. In fact, interlocutory injunctions even in other cases are normally granted ex parte. The granting of an injunction usually follows a preliminary inquiry in which the Applicants must demonstrate prima facie that:

1. There is/are serious issue(s) to be tried;
2. Damages (compensation) would be an inadequate remedy for the Applicant;
3. The balance of convenience lies in the granting of the injunction.[11]

In the matter of The State v Chaponda and others Ex Parte Kajoloweka and others[12]

In this matter which has been the subject of many a debate, Mr Kajoloweka and others have applied for Judicial Review in a matter which is between the State and the Minister of Agriculture George Chaponda, the Attorney General and the President. These are the parties to the matter. Of course in the practical sense; the case will be argued between the Applicants and the Respondents since the State is the legal fiction under which Judicial Review proceedings are brought. I use the term legal fiction deliberately. It does not mean it is a fiction, not at all. The State does exist, in fact. But in a Judicial Review, the State is not really present except as the invisible summoning party. Proceedings merely ensue (are started) in its name.

To cut a long story short, an application for Judicial Review was made by the Applicants. It was as would be expected, an ex parte application. Furthermore, the Applicants filed a Certificate that the Matter was Urgent. This is done to abridge (reduce) time where the application is made short of the prescribed (normally set or specified) time. This is the procedure for abridging time. Leave was granted and an interlocutory injunction was also granted by the Court. An interlocutory injunction is distinguished from a permanent injunction. It is one granted to the Applicant in which the Court orders that the Respondent is compelled or prevented from doing certain acts until the matter if finally determined or until the Court makes another order to the contrary. Its purpose is to maintain the status quo and preserve the Applicant’s rights before the case is heard and a judgement made. So what did the Order say in relation to Dr Chaponda? It restrained him from discharging his duties as a Cabinet Minister until the finalisation of the investigations by a Commission of Inquiry set by the President. It further warned that any person who disobeyed the Order risks being guilty of Contempt of Court. It also gave the Respondents the right to vacate or vary the order provided they gave the Applicants 48-hours’ notice. Now before we go into the substantive elements of the Order; I should say that the wording of the order is normal in interlocutory injunctions. There is nothing amiss there. In exercising their legal rights, the Respondents, through the Attorney General did file an application to vacate the leave granted for Judicial Review. The Respondents argued amongst other things that:

1. The Court does not have jurisdiction to conduct Judicial Review in this matter
2. The Application by the Applicants does not disclose an arguable case or serious questions fit for further inquiry at Judiciary review hearing.

Now it must be noted that the argument of the Respondents was not that the injunction should be lifted per se, but rather that leave for Judicial Review should not have been granted altogether or having been so erroneously granted, it should be vacated. If this argument were to be successful, it would mean the Court would throw out the Application for Judicial Review wholesale and with that would follow the automatic vacation of the injunction against Dr Chaponda. It has since transpired that the Court has sustained the grant of leave for Judicial Review as well as the interlocutory injunction until the 31st of January 2017 when it will deliver its ruling. So what does this mean? It means the injunction still subsists (exists) and that Dr Chaponda is restrained from discharging his duties as a Cabinet Minister unless the Courts rules to the contrary on 31st January 2017. Interestingly, this is the same date set for the finalisation of the investigations by a Commission of Inquiry set by the President. Now let us look at why we have these three Respondents. It is common knowledge that Dr Chaponda is the Minister of Agriculture, under whose jurisdiction the food utility ADMARC Limited falls.[13] All civil suits (claims) against the Government are through the Attorney General. Although a Judicial Review Application is not a civil suit, the Attorney General is still the person who must usually respond for the various public bodies that get called to answer as Respondents in Judicial Review proceedings. The President is the person who appointed Dr Chaponda as Minister and who also appointed the Commission of Inquiry. The Attorney General has filed an application to be removed as a Respondent on the basis that the matters that the Applicants want the Court to review do not directly affect him as a decision-maker. I would when I first saw the list of Respondents, I was also surprised and concluded that he had been included on the basis of his position as principal legal adviser to the Government. In any event, like indicated earlier, the Attorney General would still have to represent the Respondents, whether or not he is listed as a party to the proceedings. We await the Court's ruling on this. For the avoidance of doubt, should the Court agree with the Respondents on the substantive arguments presented at this stage, leave for Judicial Review will be vacated and the matter will come to an end. Should it not, it may make rulings on individual issues raised by the Respondents (such as whether the Attorney General should still be a party or the CSOs can continue being on the list of Applicants). In that case, the real hearing of the Judicial Review proceedings will commence.

The issue of the Restraining order has attracted a lot of debate, some of it furious and even acrimonious. The first issue has been whether or not the Court has the jurisdiction (or power) to restrain a Cabinet Minister. Several provisions have been quoted in our Constitution in support of either side of the argument. I for one at this time wish to make no comment in support of either side. The reason is simple. As a teacher of law, and a legal practitioner, I refrain from commenting on legal issues that are still within Court until a determination has been made. It does not mean I cannot comment, but rather that I cannot delve into the merits of the case. The legal term used is sub judice which means if a matter is under judicial consideration, it must not be publicly discussed elsewhere. Secondly, I do not possess the requisite expertise in this area of law to give a competent opinion and analysis on the constitutionality of the Court’s action. I have made this known before and it has been construed as a gag against commenting on the case. In fact, it is not. However, I would still insist that analysis of Constitutional provisions in such complex matters does require a certain level of expertise. It needs the expertise of someone who has spent a considerable amount of time researching on and around the Constitution. I have not. I can comment on the injunction now because the question of injunction has been determined for now. Secondly, it is a matter of procedure which as a practising lawyer I can competently comment on. Now it must be borne in mind that the Attorney General did raise the issue of jurisdiction as a preliminary issue. Does the fact that the Court has sustained the grant of leave and the injunction mean that the Court has made a determination on this? I would say not it does not. In fact, it may well end up that the Court decides after hearing the parties at the full hearing that it does not have jurisdiction after all. It may on the other hand hold that it does. What I am saying is that we must be cautious not to over-interpret the decision of the Court at this preliminary stage. The matter is yet to be heard and decided. It is only after the full hearing and a judgement of the Court that we can have a full picture of what this matter means. Then we may delve in with our comments on the substantive questions of law. 

Now the second issue, also related to the first is that what the Court has done is to suspend the Minister, something it does not have jurisdiction to do. Once again I will try to tackle the first part about suspension but will not comment on the question of jurisdiction. For a start, a restraint and suspension are not technically the same thing. A restraint order is a preventative order. It stops the person to whom it is targeted from doing certain things. In this case, it is preventing Dr Chaponda from discharging his duties as a cabinet minister until the finalisation of the investigations by a Commission of Inquiry set by the President. So it is time-bound as the order will fall away automatically after the finalisation of the Commission of Inquiry (which is unless it changes 31^st January 2017). It does not dismiss Dr Chaponda nor suspend him as a Cabinet Minister. He remains a Cabinet Minister but is prevented from discharging his duties during that time. Now, what is a suspension? In relation to this particular matter, it is an act of temporality removing a person from office or privileges.[14] So there is a difference between restraining and suspending but is there a substantial difference? In other ways, when it is all done and dusted, can we separate the two? I would argue that in practical terms the effect is the same. When a Court issues a restraining order, it is in fact also serves as a suspension order. Therefore for the avoidance of doubt, my own understanding of this would be that Dr Chaponda has been suspended. Should he have been suspended? Ought he to have been suspended? Does the Court have the power to suspend him? That are matters which the Court will have to adjudicate on and we can only await the judgement after a full hearing. For now, Dr Chaponda is suspended. That is the law.

Does it mean that Dr Chaponda should then stop using his Ministerial car and stop enjoying his other privileges? I do not think that the Order says that. The order merely restrains him from discharging the duties of Cabinet Minister until 31^st January 2017. It does not stop him from being a Cabinet Minister. It merely withdrawals his Ministerial powers, so to speak. So can Dr Chaponda use his vehicle etc.? Well we are in new territory here. It is a rather grey area. I do not think a situation like this was ever envisaged. I do not think the Presidency at any moment in time commissioned the drafting of a clause in the Ministerial Conditions of what happens when a Minister is suspended or restrained. For the President it is simple; he has the prerogative to fire without even giving the reason for dismissing a Cabinet Minister. So what next? The Respondents cannot appeal the decision of the Court to refuse to vacate the leave granted and its attendant injunction. This is because according to our civil procedure, you only appeal a decision made on the substantive matter. In this case, the substantive matter is yet to be heard, let alone decided upon. Like I said, had the Attorney General succeeded in vacating the leave for judicial review, the matter would have been closed and Dr Chaponda would have resumed his duties as Cabinet Minister without hindrance. Right now he is under a legal hindrance.

Conclusion

In summary “judicial review is concerned with reviewing, not the merits of the decision in respect of which the application for judicial review is made, but the decision-making process itself.”[15] Unless manifestly absurd, illegal or wrongful, it is not the decision itself that is questioned but the process. So it arises in relation to the lawfulness of a decision or action, or inaction. Now in the matter of the State v Chaponda and others Ex Parte Kajoloweka and others, at this point, we cannot say whether the decision, action or inaction of the Respondents is unlawful. This is for the Court to eventually decide. We cannot also say whether or not the Court has jurisdiction over this matter. That also is for the Court to decide. If the Court decides that it does not have jurisdiction, the clearly the issue of whether there was a ‘decision, action, or inaction’ will be of no consequence. On the other hand, if the Court decides it has, then the Court will have to adjudicate who, between Applicants and the Respondents have presented a convincing case. That is the beauty of the Adversarial System. So for the rest of us, all we can do is wait. What happens to Dr Chaponda in the meantime? Well unless the order is varied, he remains restrained or rather suspended. This is an avenue that no one in Malaŵi has travelled before. We are all learning from the experience and look forward to the precedence that the Court will set out in the end. For now, at least this can be said, the term no-one is above the law is starting to have some meaning.

Final words

Some have argued that the issue before the Court is not justiciable. To be justiciable simply means to be subject to trial in a court of law. In other words, it defines the limits under which the court may exercise its jurisdiction over some legal issues. I make co comment on the justiciability of this particular matter except to point out that readers may wish to read the decision in The State v The Registrar General Ex-Parte Msenga Mulungu and others.[16]

I have read comments to the effect that what the Court in Mzuzu has done is to infringe upon the sacred doctrine of separation of powers. This is a doctrine that originated in England which essentially says there must be a separation and independence in the functioning and powers of the three arms of government. These are the Executive, legislature and Judiciary. But no one has ever said this separation must be absolute. In fact, in England where the doctrine originates from, the Executive is subsumed into the legislature. This is because all Cabinet Ministers and the Prime Ministers are in fact also Members of Parliament. So while the doctrine does provide for distinct arms of government to be allowed to function on their own, the doctrine was never about drawing boundaries in concrete. In fact, this doctrine only makes sense when paired with the twin doctrines of checks and balances and transparency and accountability.

It is for this reason that the following happens in Malaŵi:

• The President is sworn-in by the Chief Justice (a Judge)
•  Members of Parliament are sworn in by the Chief Justice
•  The Chief Justice is nominated by the President but confirmed by Parliament
• The President appoints Judges on recommendation of the Judicial Service Commission
• Parliament can impeach both the President and his Vice as well as Judges
• The Inspector General of Police is nominated by the President but confirmed by Parliament
• The President appoints the Clerk of Parliament on recommendation of the Parliamentary Service Commission
• The Executive formulates the budget but Parliament must approve it
• The President has to present his State of the Nation Address in Parliament
• Apart from opening a session of Parliament, the President can prorogue parliament.

What this means is that the doctrine of separation of powers is not cast in stone. Rather it is etched on sand. Its boundaries are constantly changing. What it does is to prevent interference of one arm against another. But what it does not is to allow one arm to do whatever it would want. Under the doctrines of checks and balances and transparency and accountability, each of the arms must be on guard ensuring that the other arms are all operating according to Constitutional tenets (principles). The reason for this is because, under the Constitution, all arms of Government are bound by and subservient to the Constitution.[17] The Constitution is supreme[18] and only the Judiciary has been given the power to interpret it.[19] So let us respect what the Constitution has decreed. Democratic anarchy? I would think not. Not yet, anyway.

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[1] The State v Chaponda and others Ex Parte Kajoloweka and others Misc. Civil Cause No. 1 of 2017, HC (Mzuzu)

[2] Thom Chiumia, ‘Mutharika appoints Commission of Inquiry to probe K26bn ‘maizegate’:  Malawi ex-chief justice Msosa to head Zambia import deal inquiry’ Nyasa Times  <http://www.nyasatimes.com/mutharika-appoints-commission-inquiry-probe-k26bn-maizegate-malawi-ex-chief-justice-msosa-head-zambia-import-deal-inquiry/#sthash.4MddCoND.dpuf> accessed 17 January 2017.

[3] Andrew D.E. Lewis, Albert Roland Kiralfy, Mary Ann Glendon (2016) ‘Common Law’ Royal Britannica <https://www.britannica.com/topic/common-law> accessed 17 January 2017.

[4] Ibid.

[5] Section 199, Constitution of the Republic of Malaŵi 1994) <http://www.malawi.gov.mw/images/Publications/act/Constitution%20of%20Malawi.pdf> accessed 21 December 2016

[6] ‘An Introduction to Judicial Review’  <http://www.publiclawproject.org.uk/data/resources/6/PLP_Short_Guide_3_1305.pdf> accessed 17 January 2017., p1.

[7] Ibid

[8] The State v The Registrar General Ex-Parte Msenga Mulungu and others, Misc Civil cause. No 114 of 2010, HC (Mzuzu).

[9] For a discussion on injunctions and the law applicable in Malaŵian Courts, see American Cyanamid Co. v. Ethicon Ltd. [1975] AC 396.

[10] Clive Sheldon, ‘Interim Relief - Making the most of the Administrative Court’ (2006) <http://www.adminlaw.co.uk/docs/Clive%20Sheldon%20-%2028%20November%202006.doc.> accessed on 17 January 2017.

[11] American Cyanamid Co. v. Ethicon Ltd.

[12] Misc. Civil Cause No. 1 of 2017, HC (Mzuzu)

[13] Most people still think that ADMARC is a statutory company. It is not. A statutory company is one created by Statute or an Act of parliament. The Act that created ADMARC was repealed in December 2003. It is now a private limited company but owned by the State. It is, therefore, a State Owned Enterprise.

[14] ‘Definition of Suspension’ (Merriam-Webster, 2017) <https://www.merriam-webster.com/dictionary/suspension> accessed on 17 January 2017.

[15] Per Chikopa J, The State v The Registrar General Ex-Parte Msenga Mulungu and others.  

[16] Misc Civil cause. No 114 of 2010.

[17] Section 4, Constitution 1994).

[18] Sections 5 & 9, Ibid.

[19] Section 9, ibid.