Wednesday 1 February 2017

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 ....................... 1ST RESPONDENT
THE ATTORNEY GENERAL ............................................ 2ND RESPONDENT
THE STATE PRESIDENT OF MALAWI .............................. 3RD RESPONDENT
EX PARTE:
MR CHARLES KAJOLOWEKA ........................................ 1ST APPLICANT
THE REGISTERED TRUSTEES OF YOUTH AND SOCIETY .. 2ND APPLICANT
THE REGISTERED TRUSTEES OF CCAP
SYNOD OF LIVINGSTONIA ............................................. 3RD APPLICANT
THE REGISTERED TRUSTEES OF CENTRE FOR
THE DEVELOPMENT OF PEOPLE ..................................... 4TH 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 12th 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 2nd, 3rd and 4th 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 11th 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 1st Applicant, was filed in support of the said application.

On the 12th 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 2nd, 3rd and 4th 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 1st and the 3rd 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 1st and 3rd Respondents.  Why then has the 2nd Respondent been made a party to these proceedings?
The Applicants contend that the 2nd 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 2ndRespondent as a party to these proceedings. Consequently, this Court proceeds to order that the 2nd 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 2nd, 3rd and 4th 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 2nd, 3rd and 4th 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 2nd, 3rd and 4th Applicants do have a sufficient standing or interest in these proceedings.

CONCLUSION
Save that the 2nd 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 31stday of January 2017

Chirwa J
JUDGE