IN THE MALAWI SUPREME COURT OF APPEAL

AT BLANTYRE

MSCA CIVIL APPEAL NO. 42 OF 1998

(Being High Court Civil Cause No. 291 of 1994)

BETWEEN:

THE ATTORNEY GENERAL..................................................APPELLANTS

- and -

J B STENNINGS MSISKA...................................................RESPONDENT

BEFORE: THE HONOURABLE THE CHIEF JUSTICE

THE HONOURABLE JUSTICE UNYOLO, JA

THE HONOURABLE JUSTICE TAMBALA, JA

Kenyatta Nyirenda, of Counsel, for the Appellants

Bazuka Mhango, of Counsel, for the Respondent

Chirambo (Mrs), Official Interpreter/Recorder

J U D G M E N T

Tambala, JA

The principal issue to be determined in this appeal is whether the respondent’s claim against the Malawi Government is a matter which falls within the exclusive jurisdiction of the National Compensation Tribunal or under the ordinary jurisdiction of the High Court. The view of Counsel for the respondent is that the High Court, because of its unlimited jurisdiction, has concurrent jurisdiction over matters which fall within the jurisdiction of the National Compensation Tribunal. Counsel representing the Attorney General is of the view that the National Compensation Tribunal has exclusive jurisdiction over those matters which are brought before it for determination, subject only to the High Court’s power of judicial review. We shall, in this judgment, refer to the National Compensation Tribunal as “the Tribunal”.

The factual background of this appeal may be outlined as follows: In February 1994, the respondent commenced an action, by writ, against the Attorney General. The Statement of Claim which supported the writ showed that the respondent, who is a citizen of Malawi, fled the country in October 1964. The circumstances which led to his flight are not clearly stated, save that during the time he left Malawi, members of the Malawi Police had fired at his house and he feared for his life. He escaped to Tanzania and later to Zambia. Following the respondent’s escape, the then Malawi Government seized and confiscated the following goods and properties belonging to the respondent: A Bedford truck, a Zephyr 6 motor vehicle, a gun, two leasehold properties situated at Ndirande in the City of Blantyre and some household goods and effects. The two leasehold properties were restored to the respondent upon his return from exile following the 1993 Referendum. The respondent nevertheless claims a total of over K7,000.000.00 as damages in connection with the seizure and confiscation of his properties in October 1964.

Before the trial of the case commenced, both parties asked the High Court to consider, as a preliminary issue, whether the case can properly be tried by the High Court or it fell within the exclusive jurisdiction of the Tribunal. What happened is this. The respondent brought the matter before the Tribunal and he received some payment towards the settlement of his claims. He subsequently brought the same matter for trial before the High Court. The learned Judge in the High Court decided, in favour of the respondent, that the High Court had jurisdiction to try the case.

In support of the appeal, Mr Kenyatta Nyirenda, Counsel for the appellants, advanced three principal arguments. The first argument is based on the interpretation of section 138(1) of the Constitution. This is the section which confers jurisdiction on the Tribunal. It provides -

“No person shall institute proceedings against any government in power after the commencement of this Constitution in respect of any alleged criminal or civil liability of the Government of Malawi in power before the commencement of this Constitution arising from abuse of power or office, save by application first to the National Compensation Tribunal, which shall hear cases initiated by persons with sufficient interest.”

Mr Nyirenda contends that the words after the commencement of this Constitution qualify the words Government in power and do not relate to the time of commencement of proceedings. He states that the section, therefore, prohibits commencement of actions against any government established in Malawi, after the coming into force of the Constitution, arising from acts of abuse of power or office committed by the previous one-party State. He further states that the prohibition against commencement of actions is not dependent upon whether the action was begun after or before the time when the Constitution came into force. He contends that the fact that the action in the present case was commenced before the new Constitution became operational, is immaterial.

After a careful consideration of section 138 of the Constitution, we have come to the conclusion that, at least for the purposes of the present action, it does not really matter whether the words after the commencement of this Constitution qualify the Government of Malawi in power or relate to the time of starting proceedings. The words no person shall must necessarily relate to a time after the coming into force of the Constitution. The prohibition could not, therefore, relate to a time before the new Constitution came into being. Our clear view is that section 138 of the Constitution does not have retroactive effect. We consequently agree with the respondent that the section does not affect in any way actions which were commenced against the Government of Malawi before the present Constitution came into force. In passing, we would observe that the words in power after the commencement of this Constitution appear to serve no useful purpose; they appear to be redundant; they could be deleted from the text without affecting the meaning of the section; if the words are deleted, then the preceding words any Government could be changed to read the Government.

The second argument is that the respondent’s action was not saved by the relevant provisions of the Constitution. It, therefore, perished when the new Constitution came into force. An examination of section 204 of the Constitution discloses that cases which were pending before the Regional Traditional Courts, the National Traditional Court of Appeal, Magistrate Courts, District Traditional Appeal Courts, District Traditional Courts, Grade A Traditional Courts and Grade B Traditional Courts, were saved. But, surprisingly, cases which were pending before the High Court and the Supreme Court of Appeal, were not saved. The learned Judge in the Court below clearly erred when he held that the respondent’s action was saved by section 204 of the Constitution. There is no such saving in section 204. If the respondent’s case perished when the new Constitution came into being, any attempt to start it afresh would be caught by section 138 of the Constitution; the respondent would be compelled to submit to the jurisdiction of the Tribunal.

We have, however, observed that section 41(2) of the Constitution gives every person a right to access a court of law or tribunal for final settlement of any legal issue. Again, section 41(3) of the Constitution gives every person a right to an effective remedy by a court of law or tribunal where there is a violation of any right or freedom. We think that these are very vital rights which must be fully protected by the courts. When the respondent commenced an action against the Malawi Government, he had, in our view, a right to access a court of law or tribunal to obtain an effective remedy against the conduct of the Malawi Government which he thought violated his rights over the goods which were seized and confiscated. We do not think that right is impliedly defeated by the Constitution arising from the fact that the Constitution omitted to save the respondent’s action. It could be argued that section 41 of the Constitution cannot apply to the respondent’s legal action which was commenced before the Constitution came into force. We, however, take the view that section 41 merely re-states common law rights.

The right of an individual to access a court of law to obtain an effective remedy for any violation of his rights or freedoms, is also enshrined in the

International Covenant on Civil and Political Rights, which came into force on 23^rd March 1976. Article 2 - (3) of the International Covenant provides -

“3. Each State Party to the Present Covenant Undertakes:

(a) To ensure that any person whose rights and freedoms are herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by a person acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the state, and to develop the possibilities of judicial remedy;

The International Covenant on Civil and Political Rights is part of the law of this country. In the light of section 41 of the Constitution and Article 2(3) of the International Covenant on Civil and Political Rights, we take the view that the respondent’s right to access the High Court to obtain an effective remedy for an alleged violation of his rights, was not destroyed by the failure of the Constitution to specifically save cases pending before the High Court. We take the view that the respondent’s legal action survived the repeal of the 1966 Malawi Constitution.

Counsel for the respondent argues that section 138 of the Constitution does not confer exclusive jurisdiction on the Tribunal over matters which fall within that section. He contends that the High Court has concurrent jurisdiction with the Tribunal over such matters. He states that all that is required is to make an application before the Tribunal and thereafter start the same action before the High Court. We are unable to accept Counsel’s argument. We are of the clear view that the drafters of the Constitution intended to give exclusive jurisdiction to the Tribunal over actions arising from acts of abuse of power or office committed by the previous Government. The clear purpose of section 138 of the Constitution was to prevent the Government being placed in an embarrassing situation where it would be required to defend actions brought in connection with human rights abuses committed by the former Government or where it would be compelled to pay enormous sums by way of damages in connection with such cases. That purpose would be defeated and section 138 would be rendered totally impotent, if a person were to bring an action, covered by the section, before the High Court after making a mere formal application before the Tribunal. The notion of the High Court having unlimited powers needs to be re-considered in the light of the complexities of modern-day life and the existence in the Constitution of provisions which are apparently inconsistent with that notion. The view that the High Court must have power to deal with any case is both untenable and undesirable in the changed circumstances of the present times.

Ultimately, we agree with the decisions in the cases of Majighaheni Gondwe v The Attorney General, Civil Cause No. 261 of 1993 and Chaponda v Attorney General, Civil Cause No. 616 of 1994, that an action which was commenced before the present Constitution came into force falls outside section 138 of the Constitution. The respondent’s case does not, therefore, fall within the jurisdiction of the Tribunal. We also take the view that the High Court has jurisdiction to try the respondent’s case. We find it unnecessary to deal with the question whether the rights over the respondent’s properties vested in the Tribunal when the new Constitution came into force, since that question could conveniently be resolved during the trial in the High Court.

The appeal is disallowed with costs.

DELIVERED in open Court this 1st day of December 2000, at Blantyre.

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

R A BANDA, CJ

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

L E UNYOLO, JA

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

D G TAMBALA, JA