TRIMMING PRESIDENTIAL POWERS?[1]

There have been calls in recent year to trim presidential powers in Malawi.[2] This oft preached sermon has been given a boost when Malawi’s new President, Dr. Lazarus Chakwera announced that he would be looking at trimming presidential powers.[3] In his address, Chakwera said:

Having a presidency that makes too many decisions has created problems for our country for a long time. Chief among them is that it has stifled a culture of responsibility and innovation among public institutions and private citizens.[4]

But does the President really have too much power? The taste of the pudding is always in the eating. In this write up I argue that the President does not actually have excess powers. In my view, the President has enough powers to enable him execute the duties of the office of president. Can some of these powers be trimmed? Yes, then can, but excessive they are not. I further argue that the solution lies elsewhere, in the observance of the rule of law.  Justice Dunstain Mwaungulu once wrote in a discussion about presidential powers:

The proposal that the President has too much power is not correct. The President has executive power.

It is important to start by stating what might be obvious to some - Malawi has an executive presidency. The powers that the President has are stipulated in the Constitution and in statute (written law). I have isolated two sets of presidential powers. The first set is divided into 4 broad categories:

1.      Constitutional powers

2.      Statutory powers

3.      Common law powers

4.      Customary law powers

 Constitutional powers are those provided for in the Constitution. Since Malawi is a constitutional supremacy, the Constitution is above everything. This means when the Constitution stipulates powers, those powers are elevated above other powers. If truth be told, not much can be done about these constitutional powers. Some of the powers could be reduced but it would require an amendment to the Constitution.  As a sacred document, a country’s constitution should not be amended willy-nilly.[5] Statutory powers are those provided for in Acts of Parliament. Usually these powers are given to the President during the creation of certain organs and how they will be run. For example, under the Reserve bank of Malawi Act, the President appoints the Governor of the central bank.

 Common law powers are powers that have developed over time, and were much more common during the times when we were under British colonial rule as well as the early years of our republic, but which are not written down in statute. Since the enactment of the 1994 Constitution, it can be said that the President no longer has control powers which were based on the common law as any such controls have either been subsumed into the Constitution, or if not, have effectively been discarded. Customary law powers are those which largely are based on our customs. These are the powers that tend to create patrimony and patronage. Similar to the common law powers, these have also been either subsumed into statute or discarded. In practice however, these powers still exist, especially when dealing with customary tenets like chieftaincy etc. In recent years, we have seen abuse of these powers in creating chieftaincy for political expedience.

 The second set, which I find to be more exciting, and will dwell more, is divided into 5 areas:

1.      Executive powers

2.      Legislative powers

3.      Powers of appointment

4.      Imposed powers

5.      Abused powers

 Executive Powers

These powers are mostly found in the Constitution and specific statutes. These powers include the powers that the President has as Head of State and Head of Government, for example:

(a)   Power to open Parliament and deliver the State of the National Address (SONA)

(b)   Power of being Commander-in-Chief and the power to appoint the Commander of the Malawi Defence Force and the Inspector General of Police.

(c)    Power to hire and fire cabinet ministers

(d)   Power to appoint judges, the chief justice and other key positions like Governor of the Reserve Bank of Malawi.

(e)   Powers of executive clemency, usually based on recommendation from an established committee, such as the parole board as well as the power not to execute a person on death roll

(f)     Powers related to foreign affairs for example appointing and receiving Ambassadors, High Commissioners and other plenipotentiaries

(g)   Emergency powers for example declaration of a state of emergency or state of national disaster.

(h)   Executive privilege and immunity – these powers are provided for in statute, although the recent importation of extraordinary amounts of cement (dubbed cement gate) has raised questions about potential abuse of these powers.

 It is my submission that nothing can and should be done about this power.

 Legislative powers

These relate to the powers that the President has as a part of Parliament. After the National Assembly has debated and passed a Bill, the President must assent to the Bill before it becomes an Act. This is the normal practice in most democracies. Normally this power is not contentious. However, recently we have seen how a sitting President refused to assent to Bills based on equally contentious rationales. However, one can argue that the law already provides a limitation to the use of this power in that the power is not absolute. Where the President withdraws his assent, but Parliament insists on an Act, the President’s hands are pretty much tied and he must sign the Bill (give his consent).

 Powers of appointment

This power can be Constitutional and statutory. It is my argument that although not much can be done about the constitutional powers, it is the power to appoint, if anything that may need trimming. For example, the President is empowered to appoint Commissioners of the Malawi Human Rights Commission of the Electoral Commission (EC), the Director of the Anti Corruption Bureau (ACB) and Boards and Chairpersons of some parastatals. The question that comes to mind is whether such appointments can be done by another person or body. In my view, having EC Commissioners appointed by an entity other than the President would make it appear to be independent and attract the public’s trust. Recently we have seen issues surrounding appointment of Electoral Commissioners with calls that the former President had actually acted ultra vires (beyond his powers). In fact he had indeed acted ultra vires but the challenge that could have seen the Court adjudicate on the matter was withdrawn. Other powers that the President may trim down are appointment of paramount chiefs, senior chiefs, chiefs and sub-chiefs, on the basis that chiefs should be installed in accordance with applicable relevant customary law procedures and not presidential prerogatives or patrimony. And should the President really be appointing everyone above the rank of under-secretaries in the public (civil services)?[6] I submit that the President should appoint the Secretary to [the President and] Cabinet (SPC), his deputy and Principal Secretaries. The rest of the officers should be appointed by either the SPC or the Civil Service Commission.

 Imposed powers

A good example of imposed powers is the provisions in the Acts establishing the following universities: University of Malawi (UNIMA), Lilongwe University of Agriculture and Natural Resources (LUANAR), Mzuzu University (MZUNI) and Malawi University of Science and Technology (MUST) that the President shall be their Chancellor. That makes the President the Chancellor of all the 4 public universities. Apart from the impossibility of the task, the statement by President Chakwera is on point:

This is a relic from a bygone era that we need to part with, for I know of no free country in which the State President is put at the helm of an educational institution that exists to produce free thinkers.[7]

 Abused powers

Abused powers are powers which the President does not have but which he would purport to exercise or which other people would purport to exercise in his name. In my view, it is these powers that have prompted for calls to trim the President’s powers. My argument therefore is that by concentrating on these powers, we may be missing the bigger picture. I am sure we have seen communication where we are informed that Government has appointed so and so to be chief executive officer (CEO) of such and such a parastatal. For a start, appointments are always made by a specific person or entity. Government does not fit into that description. Whenever the word Government is used in this fashion, our suspicious and curious antennas must be instantly raised and remain so raised and attentive. It is a telltale sign of potential abuse. Usually such communication has in the past been signed by Chief Secretary [sic] or Comptroller of Statutory Corporations. In most case, both have no powers to make those appointments. The impression that is created is that they are acting on behalf of the President. Examples of recent appointments which fit into this category are:

(a)   Transferring of the Director General of the Malawi Communications Regulatory Authority (MACRA) Director General (DG) to become a Chief technical Advisor at the Ministry of Information

(b)   Appointment of the GD of MACRA yet the law says it must be done by the MACRA Board

(c)    Appointment of the Postmaster General (PMG) yet the law says it must be done by the Board of the Malawi Posts Corporation

(d)   Swapping of the MACRA DG and the PMG to and fro

(e)   Transferring of the Lilongwe Water Board (LWB) CEO to become a Chief Director [sic] at the Ministry of Water

(f)     Transferring of the MACRA DG to become LWB CEO

 Since different parastatals are run by different boards, where the law provides that the CEO will be appointed by the Board, it is defies logic and reason to transfer CEOs between such parastatals under the guise that they are all parastatals or between parastatals and government. The award by the Court of K500 million to Charles Nsaliwa who refused to take up a post at Ministry of Information bears testimony to this.[8] Parastatals in Malawi are set up by Acts of Parliament. The Acts will specify how boards of such corporation will be appointed as well as how their CEOs will be appointed. Where the President appoints a board or the CEO in contravention of those powers, such an appointment is ulrta vires. It in fact amounts to abuse of power. This is what Malawians were used. If President Chakwera can avoid this trap, then he is already halfway through resolving this contentious issue.

 Conclusion

In this brief write up, I have argued that the President does not actually have excessive powers. I concede that some powers can be trimmed without affecting the execution of the duties of the President. However, it is my strong contention that most of the excessive use of power actually stems from abuse of power. For such powers, the argument should therefore not be one of trimming powers for how can you trim non-existent powers? Rather the argument should be that the rule of law must be upheld. The President should exercise only those powers that are accorded to him. If that were to happen, President Chakwera may find that the task before him is not arduous after all.

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[1] This is a write up of initial thoughts that I presented to the Society of Malawi on 18th August 2020. I am grateful to George Naphambo for inviting me to make the presentation.

[2] Maurice Nkawihe ‘PAC Conference end: Delegates recommend to trim President powers, charge Chaponda and establish Financial crimes Court’ 8/6/2017 Nyasatimes  https://www.nyasatimes.com/pac-future-malawi-conference-ends-peacefully-delegates-recommend-trip-president-powers-charge-chaponda-establish-financial-crimes-court/ 3/9/2020

Tom Sangala ‘Let us reduce presidential powers’ 14/6/2018 The Times https://times.mw/let-us-reduce-presidential-powers/  3/9/2020

[3] Lameck Masina ‘Malawi President Working to Trim Executive Powers’ 9/8/2020 VOA https://www.voanews.com/africa/malawi-president-working-trim-executive-powers 3/9/2020

[4] Ibid.

[5] John Makamure ‘Amendment of Constitution should be preceded by serious public consultation’ 17/1/2017 Newsday (Zimbabwe) https://www.newsday.co.zw/2017/01/amendment-constitution-preceded-serious-public-consultation/ 3/9/2020

The Star ‘Hands off our constitution!’ 13/1/2014 IOL https://www.iol.co.za/the-star/hands-off-our-constitution-1630816 3/9/2020

[6] Section 6, Public Service Act

[7] Frank Namangale ‘Chakwera firm on trimming powers’ 9/8/2020 The Nation https://www.mwnation.com/chakwera-firm-on-trimming-powers/ 3/9/2020

[8] ‘Court awards former MACRA Director General K500 million compensation’ 13/8/2020 Nyasatimes https://www.nyasatimes.com/court-awards-former-macra-director-general-k500-million-compensation/ 3/9/2020

1% TAX ON MOBILE MONEY TRANSACTIONS - ONE STEP FORWARD, THREE STEPS BACKWARDS

A lot has already been written regarding the salient features of the 2019/20 budget, including whether the fiscus should be saddled with funding the construction of private stadia for arguably the two top clubs in the land, Bullets aka MaPalestina or Wanderers aka Nyerere. I must confess that I am Mawule (Bullets) to the bone. Whether I think using the public purse to fund the construction of private infrastructure projects is a good, wise or a financially sound policy or even legal is a debate for another day. However, one budget-line entry that may have gone under the radar, but which I argue is still as important is proposed 1% tax on mobile money. In his maiden full budget speech, the Minister of Finance put it thus:

Madam Speaker, Government has introduced a 1.0 percent final Withholding Tax on non-bank mobile money transactions based on the transaction amount. This measure aims at ensuring that a large number of the citizenry are motivated to contribute toward national building through payment of taxes and ensure that Government has scope to improve service delivery. This Madam Speaker is in line with developments in neighbouring countries.[1]

As a way of background, the mobile money service is offered by private entities, mobile network operators (MNOs). These MNOs are primarily in the telecommunication business and offer mobile money as an “added service.” There are two local mobile money services in Malawi, khusa m’manja[2] or Airtel Money offered by Airtel or (TNM) Mpamba[3] offered by TNM. It may therefore be argued that since mobile money is not public or state issued money, it is amenable to levies or taxes like other services.[4] To put matters in context, mobile money is an emerging form of money which uses a digital or electronic form. It is not state-issued money (also called fiat money) because it is created by mobile money operators. It is therefore private money. However, because it has a one-to-one ratio with fiat money, and is issued in exchange of fiat money, it serves as a mirror of fiat money. Although not regulated as money, it is nonetheless regulated as an electronic means of payment. It must however be pointed that mobile money is not pseudo money, it is actual money, but only manifested in digital format. Although not legal tender, with increased use, mobile money has steadily gained status as a trusted means of social tender.

Mobile money is a service that has grown exponentially, since its introduction, less than a decade ago, piggybacking on the equally phenomenal growth of mobile phone usage since its introduction in 1995.[5] It is therefore no surprise that it may have caught the eye of the fiscus as a source of tax revenue. Indeed, it is not unusual to subject most services which are offered to the public to tax. The Minister’s budget statement seems to attest top this. However, for mobile money, this seems incongruent with the government’s own financial inclusion agenda. The current financial inclusion in Malawi has traditionally been based on the opening of a bank account. Elsewhere I have argued for a redefinition of the financial inclusion matrix.[6] I have argued that this definition of financial inclusion is elitist and ignores the reality of the Malawian economy. The central bank has since the advent of mobile money, targeted it as one of the means of attaining financial inclusion, especially by those who do not have bank accounts. This targeted group accounts for a great deal of the rural based population. This shift in approach rides on the fact that one does not need to have a bank account to “open” a mobile money account. It is this radical change that has made mobile money a game-changer.

To sum it all, the mobile money service was seen as a god-send to redefine the financial inclusion landscape. Compared to other money transfer and remittance services, mobile money is relative cheap, less onerous and instantaneous. Initially, one was only limited to transact on a single platform. As such one had to register for both Mpamba and Airtel Money to transact on broth platforms. Now there is interoperability, including with bank accounts allowing transfers to be done with ease, subject to transactional fees. That is why the introduction of the 1% tax goes against conventional wisdom. What this means is that instead of using mobile money services as a means to empower the rural masses and the unbanked or under-banked, the tax will now serve to disempower them. The cost of transacting on the mobile money platform will rise. Unfortunately this tax is of general application and will apply to all mobile money transactions regardless of the status of the user of the service. Just to put it in context, imagine paying an extra 1% of the value for all bank transfers, or all payments made on mobile banking platforms. This is how it will feel to those who do not have bank accounts. So with one hand the mobile money service was touted as a solution to empower the rural people but with another the system has now decided to plot against the very people it should empower and will take from them the little that they have and fill up the tax purse. Imagine this scenario if you can. Two middle class people who want to remit money to each other through a bank account do not have to pay any tax. However, two villagers who wish to remit money to each other using the mobile money platform have to pay 1% levy on top of transactional fees! Define irony, if you will. The statement that the 1% tax is what is obtaining in neighbouring countries also needs fact-checking. So far, a search on Google reveals that only Uganda imposed this tax, and has already renegaded with mixed messages.

It therefore begs the question whether during the MNOs, micro-finance networks, the Consumers Association of Malawi and the Reserve Bank were consulted. Or has the agenda to use mobile money as tool to get more Malawian on the financial bandwagon been abandoned, even before the station master has blown his whistle?

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[1] Paragraph 146 of the 2019/20 Budget Statement

[2] Colloquial meaning “money in the hands”

[3] Colloquial meaning money but also used to refer to start-up capital

[4] For a discussion of money, see chapter 3 of  Madise S (2019) Regulation of Mobile Money – the case of Sub-Saharan Africa (Palgrave e Macmillan) https://www.palgrave.com/gp/book/9783030138301  (11 September 2019)

[5] Madise S (2014) “Payment Systems and Mobile Money in Malawi: Towards Financial Inclusion and Financial Integrity” SSRN https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2531319 (11 September 2019)

[6] Madise (2014) & Madise (2019). 

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