IN THE MALAWI SUPREME COURT OF APPEAL

AT BLANTYRE

MSCA CIVIL APPEAL NO. 28 OF 1998

(Being High Court Civil cause No. 36 of 1997)

BETWEEN:

THE ATTORNEY GENERAL..................................................APPELLANT

- and -

S G MASAULI

(Representing Himself and Members of MCP)....................RESPONDENTS

BEFORE: THE HONOURABLE MR JUSTICE UNYOLO, JA

THE HONOURABLE MR JUSTICE MTEGHA, JA

THE HONOURABLE MR JUSTICE KALAILE, JA

Chibwana, Counsel for the Appellant

Bazuka Mhango, Counsel for the Respondents

J U D G M E N T

Unyolo, JA

This is an appeal against the judgment of Ndovi, J which the learned Judge delivered in Chambers on 25th August 1998.

The pertinent facts are these. During the Budget Session of Parliament in March 1997, certain Malawi Congress Party and AFORD Members of Parliament walked out of the House in protest over the issue of the purport and interpretation of section 65 of the Constitution which deals with the question of crossing the floor. What happened was that certain Members of Parliament who had been elected to Parliament under the ticket of the Malawi Congress Party during the multi-party General Elections in 1994 had subsequently unilaterally declared themselves to be Independent Members. The thorny question was, therefore, whether or not these Members of Parliament should be deemed to have crossed the floor in terms of section 65 of the Constitution. Not being satisfied with what was going on in the House, the Members of Parliament in question, followed by other Members of Parliament from the AFORD Party, decided to boycott the proceedings, and they walked out of the House.

The matter then took a new twist. On 6th march 1997, a Motion was tabled, in the National Assembly, and a Resolution was passed pursuant thereto, suspending payment of salaries and allowances to the boycotting Members of Parliament and further suspending the funding of their respective political parties as required of the State under section 40(2) of the Constitution, until the National Assembly instructed the Clerk of Parliament otherwise.

The respondents decided to challenge this decision in court. Consequently, on 2nd April 1997, the respondents sought and obtained leave to apply for judicial review of the decision contained in the Resolution. In the Motion, the respondents contended, first, that Members of Parliament were entitled to remuneration by virtue of office (virtute officii) and not for simply attending the National Assembly, since their job includes constituency work and presentation of complaints and requests to ministries and/or departments of Government. The respondents contended further that the salary of a Member of Parliament was different from a sitting allowance which, naturally, requires attendance in the National Assembly. The respondents also argued that Members of Parliament who boycott Parliament continue to be Members of Parliament until their membership is lost in terms of sections 63, 65 or 67 of the Constitution.

Secondly, the respondents contended that Treasury had no power whatsoever to withhold any funding which the State is obligated to provide in terms of section 40(2) above-mentioned, unless this is authorised by a valid Act of Parliament.

The respondents contended that in the circumstances, the Resolution of 6th March 1997 by the National Assembly, on which the suspension of salaries and allowances of the boycotting Members of Parliament and the suspension of State funding was based, was ultra vires, illegal and unconstitutional and, therefore, invalid ab initio. The respondents thereupon sought an order of mandamus to compel the National Assembly and the Government to pay the withheld salaries and State funding aforementioned. The respondents also sought an award of damages.

After hearing Counsel on both sides in argument, the learned Judge found for the respondents and granted them reliefs as follows:

(a) An Order of Mandamus to pay within 7 Days, since the respondents had conceded that the payments have already resumed and the balances are merely awaiting computation. After the latter exercise, they would be paid.

(b) Declaration that the decision of the National Assembly passed on 6th March, 1997 through a Resolution suspending boycotting Members' salaries and State funding of their political parties is inequitable, illegal, ultra vires and unconstitutional, therefore, invalid.

(c) Declaration that Members of Parliament whose seats are not declared vacant in accordance with Clauses 63, 65 and 67 of the Constitution are entitled to their salaries and allowances since they are elective Members of Parliament representing their constituents both inside and outside the National Assembly. Therefore they remain such Members even when they boycott or are wrongly and unlawfully suspended.

(d) Declaration that State funding of political parties in accordance with Clause 40(2) of the Constitution is aimed at sustaining multiparty democracy in this country and therefore the State funding should be paid immediately because its withdrawal is unconstitutional and does not advance the cause of democracy.

(e) Damages for withholding boycotting Members salaries, allowances and State funding for the political parties who secured more than 10% seats in Parliament will be computed in the form of interest by the Registrar.

(f) Declaration that the Resolution of 6th March, 1997 by the National Assembly upon which the suspension of salaries, allowances and State funding were based is ultra vires, illegal and unconstitutional, therefore invalid ab initio.

(g) Declaration that Members of Parliament are entitled to remuneration virtute officii and not only for attending a branch of Parliament, namely, the National Assembly. That their work includes constituency work and presentation of complex problems and requests to ministries/departments of the Government (the executive arm) and other Government bodies, agencies and institutions.

(h) Costs, to be taxed by the Registrar.

It is against the whole of this decision that the appellant appeals to this Court. Three brief grounds of appeal were filed. These are:

1. That the lower Court erred in law in the interpretation of section 40(2) of the Constitution.

2. That the lower Court erred in law by making an order against the appellant to pay the respondent's political party funds which fell due outside the period covered by the Resolution of the National Assembly of 6th March 1997, as the same was not specifically pleaded by the respondent.

3. That by reason of the foregoing grounds of appeal, the lower Court erred in law in granting the reliefs sought.

Pausing here, it is to be observed that at the hearing of the appeal, Counsel for the appellant withdrew the second ground of appeal and argued grounds 1 and 3 only.

Counsel for the appellant submitted that State funding of a political party in terms of section 40(2) of the Constitution was conditional on Members of Parliament of the political party concerned continuing to represent the party in the National Assembly. Counsel submitted that since the MCP Members of Parliament walked out of the National Assembly and boycotted its subsequent meetings, the MCP had forfeited its right to the funding, at least during the period its Members maintained the boycott, since they could not be said to be representing the party at that point in time. Counsel submitted that the learned Judge in the Court below, therefore, fell into error when he held that State funding under section 40(2) was absolute and that the MCP was entitled to be funded regardless of the boycott.

The section, namely, section 40(2) of the Constitution, is brief, and it reads as follows:

“The State shall provide funds so as to ensure that during the life of any Parliament any political party which has secured more than one-tenth of the national vote in elections to that Parliament has sufficient funds to continue to represent its constituency.”

Observably, there is a bit of a problem here with regard to the use of the term “constituency” in the section. Ordinarily, the term refers to a geographical area for parliamentary elections. Each such area or constituency is represented by an individual, namely, a Member of Parliament. But, as we have seen, section 40(2) talks about a political party representing “its constituency”. The question is, how can a political party have a constituency? Having given the matter anxious moments, we have come to the conclusion that the constituency of a political party under section 40(2) of the Constitution is actually the fraction of the national vote secured by the political party concerned in elections to Parliament. The political party's constituency, in this sense, put simply, is the broader geographical area which makes the fraction of the national vote secured by the political party concerned. And, as we have seen, in order to qualify for State funding under section 40(2), a political party must have secured more than one-tenth of the national vote in the elections.

We now revert to the appellant's contention that funding of a political party by the State in pursuance of section 40(2) is dependant upon Members of Parliament of the particular political party continuing to represent their political party in the National Assembly. Put differently, the argument is that the continued attendance in the National Assembly by Members of Parliament of a particular political party is a condition precedent to the State providing funds to the political party in terms of section 40(2).

We have reproduced section 40(2) above. We have carefully examined its provisions, but we are, with respect, unable to see the condition or limitation that is suggested by the appellant. In our judgment, what the section says is that the State has an obligation to provide funds to any political party that secured more than one-tenth of the national vote in any elections to Parliament in order that such political party should have sufficient funds to be able to continue to represent its constituency, namely, its fraction of voters (its members or supporters, if you like), during the life of any given Parliament. Actually, it is illuminating to note that the original text of section 40(2) read: “The State shall, where necessary, provide funds....” Interestingly, the words 'where necessary' were dropped subsequently. Clearly, those words placed a qualification or limitation to the section. All in all, we would agree with the Court below that section 40(2) provides for an unqualified right to an eligible political party to be provided with sufficient funds by the State to enable it to continue to play its role in the promotion and sustenance of multi-party democracy.

This brings us to the controversial National Assembly Resolution of 6th March 1997. As we have indicated, the Resolution directed that payment of salaries and allowances to the Members of Parliament who had walked out of the National Assembly and the State funding of their political parties should be suspended until the National Assembly instructed otherwise.

In the Court below, the appellant sought to justify the Resolution on the ground that it was an internal matter, in the National Assembly, intended to enforce discipline among its Members and necessary to punish them. At the hearing of the appeal, the argument was different. Counsel for the appellant submitted that the Resolution was not really intended to punish the boycotting Members of Parliament and their political parties, but was merely a stop-gap measure meant to coerce the Members of Parliament in question to return to the House. Counsel said that the action taken by these Members of Parliament was not only prejudicial to the proceedings in the House, but also to the process of democracy itself.

The first observation to be made is that it was conceded on the part of the appellant that there is no express provision, either in the Constitution or any statute, or in the Standing Orders for that matter, which sanctions the suspension of salaries of Members of Parliament or the suspension of State funding to political parties.

The appellant sought to justify the Resolution on the basis of the doctrine of necessity. With respect, that doctrine is plainly not applicable to the facts of the present case. There were other ways to deal with the dispute that had arisen in this matter. Indeed, the undisputed facts show that subsequently the dispute was discussed and resolved amicably at some forum. The attitude disclosed in the Resolution was simply overbearing. It is also significant that proceedings in the House continued inspite of the boycott.

It is to be observed further that contrary to what Counsel for the appellant said in argument, the Resolution was punitive in nature. The concerned Members of Parliament and political parties stood to suffer financially as a result of the suspension of the salaries and the State funding. Needless to point out that the principles of natural justice require that no person or party should be punished or penalized without giving that person or party an opportunity to be heard. On the available facts, that opportunity was not given to the respondents in the present case.

It is also to be noted that the Resolution assumed retrospective powers. As a result of the Resolution, even the State funding that had accrued earlier, before the date of the Resolution, were withheld. That is not permissible in law. Even if valid, the Resolution could only take effect as from the date it was passed, namely, 6th March 1997.

We now turn to the issue relating to the Members of Parliament’s salaries. We have indicated that arguments on appeal focussed only on the issue of State funding. No arguments were proffered with regard to the issue of the boycotting Members of Parliament's salaries, which were also meant to be withheld in terms of the Resolution. We can only surmise that the issue was not pursued, perhaps because the salaries have been paid inspite of the Resolution. Be that as it may, we have already held above that the National Assembly has no power to withhold salaries of Members of Parliament, even the boycotting Members of Parliament, in the present case, whether under the Constitution, Statute Law or the Standing Orders of the National Assembly. The position in England is illuminating. Formerly, Members of the House of Commons who absented themselves from the House were liable to be punished, and the penalty was the forfeiture of wages. This was done under an Act of Parliament, namely, Act 5, Rich.2, c.4. However, that penalty is no longer available: see Erskine May Parliamentary Practice, 19th Ed., page 218. The Zimbabwean case of Smith v Mutesa and Another (1989) Civ. App. ZLR 183 (SC) is also in point. The case is for the principle that the salary of a Member of Parliament cannot be suspended or withheld in the absence of legal authority to this effect.

Referring again to the present case, it is indeed difficult to approve of the suspension of the salaries, considering that Members of Parliament also perform other vital functions apart from attending Parliament. It is, however, noted that the damages that were awarded by the Court on this aspect included interest, to be assessed by the Registrar. With respect, we are unable to agree with the Court below on this point. It is trite that interest must be specifically pleaded to be recoverable. It was not so pleaded in the present case. The award of interest cannot, therefore, be supported.

For the reasons given herein, we would agree with the Court below that the Resolution of the National Assembly passed on 6th March 1997 was illegal and unconstitutional. Subject to what we have stated above, we would uphold the declarations which were made by the Court below.

Finally, it is noted that the appellant paid into Court the sum of K6,190,000.00 in respect of State funding that had accrued to the respondents by the time the Resolution was passed. The respondents were able to stipulate the exact dates the monies were due and payable, and there

does not appear to be any real dispute on this point. It is, therefore, ordered that the money be paid out to the respondents forthwith.

The result is that the appeal fails, and it is dismissed in its entirety.

The question of costs has exercised our minds. It is clear from the depositions that the respondents did not wholly act in good faith when they boycotted the proceedings in Parliament. With respect, their conduct is not conducive to the promotion and sustenance of democracy. It is trite that he who comes to equity must come with clean hands. The respondents’ hands are not clean. Therefore, although the appeal is unsuccessful, we order that each party should pay its own costs, both here and below.

DELIVERED in open Court this 24th day of March 1999, at Blantyre.

Sgd ........................................................

L E UNYOLO, JA

Sgd ........................................................

H M MTEGHA, JA

Sgd ........................................................ J B KALAILE, JA