And

ATTORNEY GENERAL Defendant

CORAM: D F MWAUNGULU (JUDGE)

Msisha, SC, Legal Practitioner, for the plaintiff

Defendant, absent

Fatchi, the official interpreter

Mwaungulu, J

JUDGEMENT

On 7^th April 1994 the plaintiff, American Stores Limited took out a summons for an order for an account for assets the Government of the Republic of Malawi seized under the Forfeiture Act in June 1983. American Stores Limited also sought determination of four matters. First, whether the Forfeiture Act under which the Government of Malawi seized the plaintiff’s assets contravened the Constitution and the Universal Declaration of Human Rights. Secondly, whether the Government of Malawi’s application of the Forfeiture Act on the plaintiff was constitutional. Thirdly, whether failure by the Government of Malawi to inform the plaintiff of the grounds for the application of the Act rendered the Government of Malawi unconstitutional and invalid as being contrary to rules of natural justice. Finally, whether it was lawful to apply the Act to a limited company. For inexplicable reasons this Court only heard the summons on 6^th October 2003, almost a decade after the action commenced. In between the 1966 Constitution of the Republic of Malawi was repealed.

Different matters, most which could have been solved by a little more perspicacity, account for the delay. On 25^th February 1995 the matter was not called at all. On 20^th October 1995, the Court adjourned the summons. Mr. Chatsika, the Principal State Advocate, only received the file that morning. Nothing happened on the file, it seems till 14^th October 1999. The court file, it seems, missed for a while and documents had not been properly lodged on the file. The judge adjourned the matter for that reason. The Court did not call the file on the new date of 4^th December, 1999. The Court did call the file on the subsequent set date of 12^th April 2001. The Court adjourned the matter because of inadequate notice on the Attorney General. On 4^th February 2003 the Court adjourned the matter. The Attorney General did not appear. The Court adjourned the matter to 6^th October 2003. The Attorney General was served for the date on 30^th July 2003. The Attorney General was not here. I heard submissions from Mr. Msisha, legal practitioner for the plaintiff.

The affidavit of Abdul Majid Aboobaker, a director of American Stores Limited at the time, contains what happened when the Government of the Republic of Malawi applied the Forfeiture Act to the company on 3^rd June 1983. The company had assets worth K11, 250, 000 comprising of K6, 500, 000 stock in trade, K1, 500, 000 debtors, K1, 250, 000 bank deposits and K2, 000, 000 fixed assets. The Government of the Republic of Malawi applied the Act without assigning any reason to the company. Just as the Government of the Republic of Malawi never suffered the company to answer allegations made against the company.

There is not much to this case precisely for the submission that Mr. Msisha, SC, based on a number of authorities of this Court and the Supreme Court of Appeal. There is no difference between the 1966 and the 1994 Constitution scheme in relation to limitations to laws except to the scope of limitation. Both Constitutions provide for limitation of rights by law. The Supreme Court in Chihana v Republic MSCA Cr. App. No. 9 of 1992, unreported, held that the United Nations Universal Declaration of Human Rights was under section 2(1)(iii) of the 1966 Constitution part of our law. The rights could however be limited under section 2(2):

“Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (1) to the extent that the law in question is reasonably required in the interests of defence, public safety, public order or the national economy.”

The word ‘held’ in presupposed courts could, under subsection 2 (2), invalidate laws that could not be explained based on the grounds in the subsection. This Court, based on subsection 2(2), has declared the Forfeiture Act invalid under the 1966 Constitution for unreasonably compromising fundamental human rights: Waka v Attorney General Civ.Cas. No. 1855 of 1993, unreported; Khansia v Attorney General Civ.Cas. No. 33 of 1994, unreported; Gombera v Attorney General Civ. Cas. No 1558 of 1993, unreported; Banda v Attorney General Civ.Cas. No 1727 of 1993, unreported; and Aboobaker v Attorney General Civ.Cas. No 964 of 1994, unreported. It was unnecessary to justify, as some judgements did, the invalidation on the flagrant disregard of human rights by the Government of the Republic of Malawi then.

Constitutional governments, upholding the rule of law, democratic values and fundamental rights can pass laws that undermine fundamental human rights. What matters is existence of legal arrangements, as both Constitutions provide, for challenging validity of such laws. The legal premise is a sure way of questioning validity of such laws. In the decisions Mr. Msisha cited this Court took the view that the Forfeiture Act, albeit intended for protection of the economy, flouted basic human rights and, as Mr. Msisha has maintained in this matter and the many judgments referred where he appeared for the applicants, was not ‘reasonably’ necessary for the protection of the economy. More importantly, the Forfeiture Act denied the victims of the Act the right to be heard on government action that was, to all fair minded people, coercive and oppressive. The Forfeiture Act in enabling Government to forfeit entire properties was unreasonable in its application for being disproportionate to the degree of culpability. Reasonableness is sine qua nona laws would be invalid under the 1966 and the 1994 Constitutions.

I, therefore, grant the orders prayed for. The question of limitation was not raised at all and, because the Attorney General never appeared, argued before me. The matter is covered by many decisions of this Court. The statute of limitation does not apply to the action that American Stores Limited lodged in this Court. Costs will be to the applicant.

Made in Chambers this 22^nd Day of October 2003.

D F Mwaungulu

JUDGE