IN THE HIGH COURT OF
MZUZU
DISTRICT REGISTRY
CIVIL APPEAL CASE NUMBER 50 OF 2003
BETWEEN:
HON
J Z U TEMBO IST PLAINTIFF
HON
KATE KAINJA 2ND
PLAINTIFF
And
THE
ATTORNEY GENERAL DEFENDANT
CORAM: THE
HONOURABLE JUSTICE L P CHIKOPA
T
Mvalo of Counsel for the Plaintiffs
P
Kayira Principal State Counsel for the Defendant
Namponya
Mrs. Official Recorder
Chikopa, J
JUDGMENT
BACKGROUND
This case has had a chequered history. And it is important for purposes of
putting many issues raised in this case in perspective that we narrate this
history. In doing so we are, we should make it clear,
only restating matters that are not in dispute.
It is fair to say
that at least up to June of 2002 there was a serious division within a Malawian
political party known as Malawi Congress Party (hereinafter called MCP). Such
was the extent of the division that there were now in the party two factions.
One headed by a gentleman known as Gwanda Chakuamba and the other by a gentleman known as John Tembo
who also happens to be the first plaintiff in this matter. In furtherance or as
part of this division the Tembo faction decided to force the MCP to hold a
convention. A Mr. Kampanje Banda accordingly took out
an action in the Lilongwe District Registry under Civil Cause 645 of 2001
seeking a court order that a national convention of the MCP be convened and
held. That action was dismissed as being grossly irregular, frivolous, and
vexatious and a waste of time and an attempt to draw the court into a club
wrangle. Kampanje Banda then moved to the Principal
Registry. On 6th June 2001, he took out an originating summons
seeking an order mandating the Defendant in that case, the above mentioned Gwanda Chakuamba immediately or
within such time as the court may deem fit, to convene an extraordinary annual
convention of the Malawi Congress Party. Before the originating summons was
heard the Tembo faction decided to hold an MCP convention at the Natural
Resources College (NRC) in
‘IT IS ORDERED that an injunction is
hereby granted restraining the Plaintiff by himself, his servants, or agents,
or otherwise any member of the Malawi Congress Party howsoever from holding the
Malawi Congress Party Convention scheduled for 22nd June 2002 in
Lilongwe or any other date and place until the various committees constituted
under the Malawi Congress Party structures the Constituency, District and
Regional Committees have renewed their respective mandates and/or further until
determination of these proceedings or until further order.
If you disobey this order you may be
found guilty of contempt of court and may be sent to prison or fined or your
assets may be seized.’(Sic)
The plaintiff in this case was Kampanje Banda but suing in a representative capacity. He
was not being happy with the order of injunction. He on
Gwanda
Chakuamba then took out a motion for the committal of
inter
alia John Tembo and Kate Kainja.
We set out parts of the said motion that we thought relevant for our present
purposes:
‘That Hon. John Z U Tembo, Hon Kate Kainja and Potiphar Chidaya be committed to prison for their contempt of court
in disobeying and/or aiding and abetting the defying and flouting of Orders of
this court in that members of MCP who had first hand knowledge of the contents
of the injunction restraining members of the Malawi Congress Party from holding
a MCP convention called for 22nd
June 2002 in Lilongwe or any other date or place until the various committees
under the Malawi Congress Party organizational structures at Constituency,
District and Regional Committee levels had renewed their respective mandates
and/or until the determination of the Originating Summons herein or until
further order and with such knowledge, encouraged and assisted the plaintiffs and
some members of the Malawi Congress Party in holding a MCP Convention on 22nd
to 23rd June 2002 at Natural Resources College in Lilongwe and
participated thereof.
A declaration that the said ….., Hon. J Z U Tembo, Hon. Kate Kainja and Potiphar Chidaya with tacit knowledge assisted the holding of a MCP
Convention, which was an outrageous conduct of defying the Court orders,
thereby undermining the authority of the High Court of Malawi, trivializing the
rule of law and compromising the due course of justice.’(Sic)
At trial the current
plaintiffs prayed inter alia that they were not aware
of the existence or contents of the order of injunction of
‘I am satisfied beyond reasonable doubt
that.., Hon John Tembo, Hon Kate Kainja …….. Had notice of the
injunction granted on
As to whether there
was a breach of the order of injunction of
‘I find it as a fact and I am satisfied
to the requisite standard that the injunction grantee on
On whether our
plaintiffs had actually breached the order of injunction the court said:
‘I now turn to Hon John Tembo. He is
leader of this faction of the
Regarding Hon Kate Kainja the Honorable Court had the following words:
‘She is Secretary General of the party.
The injunction was directed at all members of the party including herself. She
participated in the convention. Mr. Kampanje Banda
called upon Mr. Majoni to chair the convention
through her. Before the convention was held, she had written a letter inviting
Hon Chakuamba to the convention. This means that Hon Kainja not only participated at the convention but she had
also taken part in organizing same. Indeed the post of Secretary General is
crucial to the holding of a convention. I also find her guilty of contempt’. (Sic)
Our two plaintiffs
were following their being found guilty of contempt sentenced each to a fine of
K200000.00 in default 12 months IHL. The fines were paid. There was no appeal
either against sentence or conviction.
On December 12th
2002 Hon Paul Maulidi Member of Parliament for
Blantyre North who is also Deputy Secretary General of the United Democratic
Front, another political party operating in Malawi, successfully moved the
National Assembly sitting at Lilongwe to pass a motion declaring that the
contempt in respect of which our plaintiffs were convicted was a crime
involving dishonesty or moral turpitude. The National Assembly duly did. The
Honorable Speaker of the National Assembly then proceeded to wrap up the issue
in the following words:
‘Honorable Members I now put the
question that the Honorable Speaker do publish in the gazette notice under
section 63 subsection 2 of the Constitution that the seats of Honorable John Zenus Ungapake Tembo, Member of
Parliament for Dedza South Constituency and Honorable
Kate Kainja , Member of Parliament for Dedza South
West constituency have become vacant by virtue of a conviction of the two
Members of Parliament by the High Court
of Malawi of contempt of court which is a crime involving both dishonesty and
moral turpitude.
Honorable Members, by your vote ……. The effect of your vote on this
motion is that the Speaker will now proceed to gazette the seats vacant.’ (sic)
The motion was passed
on
On
Clearly our
plaintiffs must have taken note of the Supreme Court’s
not so subtle hint that it was perhaps not most appropriate to proceed by way
of Judicial Review. They decided to proceed by way of Originating Summons and
filed the papers in respect thereof with this registry.
THE PLAINTIFFS’ CLAIM
Courtesy of the
originating summons referred to above the plaintiffs sought the determination
of this Court on the following questions:
1.
whether
the provisions of section 51 of the Constitution of the
2.
considering
all the circumstances of the committal proceedings in civil cause No 1841 of
2001 filed at the Principal Registry, whether the relevant contempt was
criminal or civil.
3.
if the answer to question 2 above is
that the relevant contempt was civil then whether in that case the Plaintiffs
became eligible to be disqualified as members of Parliament under section 51(2)(c)
of the Constitution since that section talks of conviction of a crime(underlining
supplied for emphasis).
4.
if
the answer to question 2 above is that the contempt was criminal then whether
on a proper construction of section 51(2)(c) of the Constitution the relevant
contempt was a crime involving dishonesty or moral turpitude(underlining
supplied for emphasis).
5.
If the answer to question 1 above is
that section 51 of the Constitution does not apply to a serving member of
Parliament or if the answer to question 4 is that although the contempt was
criminal it did not involve dishonesty or moral turpitude, a declaration by the
Court that the Plaintiffs did not qualify to have their seats declared vacant
in terms of section 51(2)(c) of the Constitution and an order that:
(a) The
declaration of their seats as vacant was a nullity;
(b) The
plaintiffs have always been members of Parliament representing their respective
constituencies and are still members of Parliament;
(c) The
plaintiffs as members of Parliament are fully entitled to all remuneration
including the remuneration so far illegally withheld from them, and to all
privileges of a Member of Parliament.
6.
Whether in fact the expulsion of the
plaintiffs from Parliament was not an infringement of their political rights
under section 40 of the Constitution
7.
Whether section 52(2) is not
inconsistent with sections 40 and 42(2) of the Constitution and to that extent
antagonistic with the values which underlie an open and democratic society
which values a court of law in interpreting the Constitution is required to
promote according to section 11(2) of the Constitution.
8.
Considering that the proceedings
relating to the motion to declare vacant the seats of the Plaintiffs were
conducted in a manner that breached Standing Orders of the National Assembly,
notably Standing Orders 18 and 25(2), whether those proceedings and the motion
passed thereunder were valid.
9.
Whether in fact Parliament had power to
disqualify the Plaintiffs from their seats in Parliament or whether such power
lies with the Electoral Commission.
10.
Whether in fact the expulsion of the
Plaintiffs from Parliament was not in breach of the human rights enshrined in
the Constitution as well as the Universal Declaration of Human Rights to which
Malawi is a signatory, and particularly Article 21(1) thereof which guarantees
everyone the right to take part in the government of his country directly or
through freely chosen representatives, and Article 21(3) which says the will of
the people shall be the basis of the authority of government and that this will
shall be expressed in periodic and genuine elections which shall be by
universal and equal suffrage and shall be held by secret vote or by equivalent
free voting procedures.
11.
Whether the Plaintiffs had a real
opportunity of hearing considering the way the proceedings for their removal
from Parliament were conducted.
12.
Costs
When the plaintiffs
addressed us viva voce they prayed for an order in favor of the Plaintiffs
that:
1.
The National Assembly usurped the powers
of the Courts by assuming the function of interpreting matters of laws, and
thereby acted ultra vires. Accordingly that its
decision is a nullity;
2.
The contempt in question was in fact of
a civil nature and therefore as it was not a crime it fell outside of the
realms of section 51(2)(c) of the Constitution.
Accordingly that it was wrong to declare the plaintiffs’
seats vacant under that section;
3.
In the circumstances the plaintiffs
were not at all eligible to have their seats declared vacant;
4.
The contempt in question did not
involve dishonesty or moral turpitude as envisaged by section 52(2)(c) of the
Constitution where the offence is required to be of a criminal nature;
5.
The decision was arrived at in breach
of principles of natural justice, particularly the need to afford the other
party adequate opportunity to be heard;
6.
The decision was arrived at in breach
of the Constitutional right of the plaintiffs to lawful and procedurally fair
administrative action;
7.
The decision infringed the plaintiffs’ political rights under the
Constitution;
8.
In the result, the plaintiffs have
always been members of the National Assembly in the eyes of the law, and
accordingly are fully entitled to, and have always been fully entitled to
attend sittings of the National Assembly, and to all remuneration due to them
as members of the National Assembly, and to all privileges and immunities of a
member of the National Assembly; and
9.
The defendant may be condemned in costs
of this action.
It is clear in our
view that the orders sought by the plaintiffs are consequent upon our
determination of the matters presented to us courtesy of the Originating
Summons. We say this because we do not want to create the impression that the
parties’ submissions by themselves in any way
brought up new issues for our determination.
GENERAL PRINCIPLES OF
LAW
We realize from the outset that we are
dealing with issues of a constitutional nature. We think it prudent therefore
that we should restate some basic, and shall we say handy as well, principles
of law that might be of use as we determine this case.
The case of Fred Nseula v the Attorney General and
‘A
constitution is a special document which requires special rules for its
interpretation. It calls for principles of interpretation suitable to its
nature and character. The rules and presumptions which are applicable to the
interpretation of other pieces of legislation are not necessarily applicable to
the interpretation of a Constitution. Constitutions are drafted in broad and
general terms which lay down broad principles and they call, therefore, for a
generous interpretation avoiding strict legalistic interpretation. The language
of a Constitution must be construed not in narrow legalistic and pedantic way
but broadly and purposively. The interpretation should be aimed at fulfilling
the intentions of Parliament. It is an elementary rule of Constitutional
interpretation that one provision of the Constitution cannot be isolated from
all others. All the provisions bearing upon a particular subject must be
brought to bear and to be so interpreted as to effectuate the great purpose of
the Constitution.’
The Honorable Court also cited with
approval the Indian case of Galapan v State of
‘The
Constitution is a logical whole each provision of which is an integral part
thereof and it is therefore logically proper and indeed imperative to construe
one part in the light of the other parts.’
ISSUES
With the greatest
respect we are of the humble view that there is so much chaff surrounding the ONE issue raised by the plaintiffs
there is the real danger of one going on a wild goose chase. This, it must be
said arose out of both parties’
inability to file with the court affidavits that complied with Order 41 of the
Rules of the Supreme Court (RSC). It is trite knowledge that affidavits must
contain only depositions as to facts. The ones we have herein contained in the
main Counsels’ opinion about
various sections of our Constitutions, international human rights instruments
generally, the political shenanigans going on in this jurisdiction at around
the time the matters the subject of this litigation arose and some facts.
Without in any way suggesting that it is all right to less than adhere to the
rules of procedure we allowed the matter to proceed.
We did not think that anybody was going to be prejudiced thereby. Neither did
we think it made good sense to throw out the matter only to have it come back
later on the basis of not so important rules of procedure. It results in the
criminal waste of time and treasury. Our brother Kapanda
J when faced with a similar situation in Brown
Mpinganjira & Six Others Misc. Civil Cause No
3140/2001 only hoped that the Bar would henceforth proceed correctly
procedurally. We doubt whether we can better such sentiments.
For our part this
matter revolves around the finding by the National Assembly that the contempt
of court with which our plaintiffs were found guilty is a crime involving
dishonesty or moral turpitude. In our view what is important should be to
determine whether such conclusion is correct or not. We do notice however, and
we say this herein above, that the plaintiffs raised several other questions
for our consideration. These are questions touching on a perceived conflict between
various constitutional provisions and whether section 51 of our Constitution
applies to a serving Member of Parliament. These are in paragraphs 1,6, 7, 8, 9 and 10 of the Originating Summons. We shall as
much as we can, and as long as we feel there is relevancy in so doing, express
an opinion on such questions. Now though we think we should get to resolve the
small matter of jurisdiction.
Does this court (read the High Court) have jurisdiction to
hear and determine this matter.
The plaintiffs looked
at the issue of jurisdiction from different angles. The defendants never
expressed a view. To be fair to them they proceeded on the assumption that this
court has the requisite jurisdiction. But in the light of what we have said
about the plaintiffs’ views on
jurisdiction we feel duty bound to say a few words if only to confirm that we
are all on the same train proceeded in the same direction.
As we understood the
plaintiffs they firstly argue that this court has jurisdiction to hear a
challenge against a decision of the National Assembly or Parliament or indeed
both. Similarly this court can review such a decision. As authority they cited
sections 9 and 108(1) and (2) of the Constitution. They also cited several case
authorities. Both from within the jurisdiction and without.
The latter are Brown Mpinganjira
and Six others v the Speaker of the National Assembly and the Attorney General,
Miscellaneous Civil Cause Number 3140 of 2001(unreported), Gwanda Chakuamba and Hetherwick
Ntaba v The Speaker of the National Assembly,
Civil Cause No 95 of 2001(unreported), and Jan
Sonke and Joe Manduwa v The
Speaker of the National Assembly and the United Democratic Front, Civil
Cause No 140 of 2002(unreported).
We do not wish to
belabor the point - and this mainly because the court opinions in the cases
cited above were on interlocutory applications - but it is clear that section
108(2) of the Constitution gives the High Court powers to review any law, and
any action or decision of the Government for conformity with this Constitution.
The subsection is in the following terms:
‘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 but this
Constitution and shall have such other jurisdiction and powers as may be
conferred on it by this Constitution or any other law’.
We have no problem in
concluding that ‘government’ as used in section 108 above includes
the three organs of government. In so far as therefore our plaintiffs wish to
have this court review the National Assembly’s
decision that the contempt of court with which they were convicted of is (a) a
crime and (b) it involves dishonesty or moral turpitude our conclusion has to
be that we can and we will hear such an application. The only problem, as we
see things, is that our plaintiffs raise two other issues regarding
jurisdiction which we feel should be resolved now.
Firstly they contend
that as part of the powers granted to this court under section 108 this court
has the power to go beyond the law, action or decision complained of to
determine whether in the case of the Legislature such a decision is
procedurally legal.
Secondly they also
contend, as we understand them, that section 9 grants the exclusive primary
authority of inter alia interpreting our
Constitution and all laws to only the Judiciary and that therefore the
Legislature had no business in the instant case to sit down and consider
whether ‘contempt of court was
a crime involving dishonesty or moral
turpitude’.
What the National Assembly should have done, in the view of our plaintiffs, was
to adjourn the matter and seek the Judiciary’s
opinion on whether contempt of court is a crime involving dishonesty. And that
having done so and upon the Judiciary answering in the positive they would have
then gone on to declare the seats vacant. Because the National Assembly did not
do so, our plaintiffs further argue, it usurped the constitutional function of
the Judiciary. Its decision cannot be valid in law. It is void ab
initio for want of jurisdiction.
There is a subsisting
argument as to whether the Judiciary should go beyond the decision being
challenged or not. In the instant case it is our opinion that whether to go
beyond the National Assembly’s
decision that contempt of court is a crime involving dishonesty and moral
turpitude can only arise once we conclude that the decision in issue is
correct. If we declare that it is invalid as not being a crime or not being a
crime involving dishonesty or moral turpitude then going behind the declaration
becomes an exercise in futility seeing as there would be no decision to go
behind or review. Rather than say now whether this Court can go by way of
review behind/beyond the decision being reviewed we shall await a finding
whether the House’s decision that the
relevant contempt was a crime involving dishonesty or moral turpitude was
correct or not.
On whether the
National Assembly usurped the Judiciary’s
powers in considering whether contempt of court is a crime involving dishonesty
or moral turpitude we have, with respect, to disagree with our plaintiffs.
Similarly we have to disagree with the proposition that once a matter of legal
interpretation arises in the National Assembly it becomes obligatory to pass it
on to the Judiciary for its determination/opinion.
For our part we think
that the former line of thought came originally out of the misconception that a
decision of the Speaker in the House was final and could not be challenged in a
court of law. That kind of thinking has since been discarded. A decision of the
Speaker is capable of being challenged and can be quashed if found not to
conform to the Constitution or the law. The foregoing argument does not in our
view go on to say that the Speaker or indeed the National Assembly/Legislature
cannot make a decision that involves the interpretation of the constitution/law
within the House. It can. The only thing it emphasizes, and which we would also
want to emphasise, is the fact that such a decision
is reviewable by the judiciary to ensure that it
conforms with the law and the Constitution. That in
our view is the correct understanding of section 108 of the Constitution.
We are also aware
that some quarters think that section 63(3) of the Constitution obliges the
Speaker to adjourn proceedings of the National Assembly and await a judicial
pronouncement once the matter before it concerns the interpretation of the law
or the Constitution. To be fair to those that think thus we are willing to say
that it is perhaps the good thing to do. We are however unable to agree that it
is unconstitutional or unlawful for the Speaker not to do so or for the
National Assembly to proceed with the matter to finality.
The section provides:
‘The Speaker may, upon a motion of the
National Assembly, postpone the declaration of a vacant seat for such period as
that motion prescribes so as to permit any member to appeal to a court or other
body to which an appeal lies against a decision which would require that member
to vacate his or her seat in accordance with this section.’
In so far as we
understand it the section does not oblige the Speaker to postpone the
proceedings once the interpretation of the law or Constitution comes up. On the
contrary it is obvious that the section permits a motion to be moved in the
House that will have the effect, if it goes through, of postponing whatever
decision the House wanted to make until a judicial pronouncement is made on the
interpretation in dispute. If the motion to defer fails to go through however
the House is mandated to debate the declaratory motion to finality. If the
member is not satisfied he can apply to the Courts to have the
declaration/decision reviewed for conformity with the Constitution. It cannot
be said that in first making the declaration and not referring the matter to
the courts the House has usurped the former’s
constitutional function with the result that such a declaration is void. The
only time an obligation rises on the part of the Speaker to defer a matter
pending a judicial pronouncement is when a motion in that regard has been
passed by the House itself.
We are unable
therefore to accede to the argument that the National Assembly’s decision that the relevant contempt
is a crime involving dishonesty or moral turpitude is void ab
initio because the National Assembly made it without the
requisite jurisdiction and in a manner tantamount to the usurpation of the
judicial function by the former.
We now go back to
determine the issues as raised by the plaintiffs not
necessarily in the order in which they appear in the summons. This is only for
purposes of convenience.
Whether section 51 of the Constitution applies to a serving
member of Parliament
The marginal note to
Section 51 abovementioned talks about qualifications of Members of Parliament.
The opening words of subsection 1 read:
‘A person shall not be qualified to be
nominated or elected as a Member of Parliament unless that person;’
The section then
provides that the said person has to be; a citizen of the Republic of Malawi
who has attained the age of 21 years; is able to speak and read the English
language well enough to be able to take an active part in parliamentary debates
and is a registered voter in a constituency.
Subsection 2 on the
other hand provides that no person shall be qualified to be nominated or
elected as a Member of Parliament who; owes allegiance to a foreign country;
is, adjudged under any law in force in the Republic, adjudged or otherwise
declared to be mentally incompetent; has been within the last seven years
convicted by a competent court of a crime involving dishonesty or moral
turpitude; is an undischarged bankrupt having been
adjudged or otherwise declared bankrupt under any law in force in this country;
holds or acts in any public office or appointment which by law disqualifies her
from being a member of Parliament; belongs to and is a serving member of the
Malawi Police Force or the Defence Forces of Malawi and has within the last
seven years been convicted by a competent court of any violation of any law
relating to election of the President or elections of members of Parliament.
As a stand-alone
section it is clear that section 51 abovementioned refers only to
qualifications of those that may be nominated or elected as members of
Parliament. We know however that the plaintiffs did not bring in this section
so that we should discuss whether or not the plaintiffs are qualified to stand
as members of Parliament. We also know that the Nseula case says that ‘it is an elementary rule of
Constitutional interpretation that one provision of the Constitution cannot be
isolated from all others. All the provisions bearing upon a particular subject
must be brought to bear and to be so interpreted as to effectuate the great
purpose of the Constitution’.
The case at hand does
not involve the qualifications of those that want to become Members of
Parliament. It involves the ‘removal’ (we use this word very advisedly) from
their seats in the National Assembly of our plaintiffs. We will achieve little,
if anything, by looking at section 51 of the Constitution in isolation in so
far as removal of members of Parliament from their seats is concerned. We
should look at all provisions in the Constitution that bear on a member’s removal from the House. It seems
clear to us in those circumstances that we, have to look at section 63 of the
Constitution. It deals with vacancies in the National Assembly. The section
provides that the seat of a member of the National Assembly shall become vacant
inter
alia:
‘If any circumstances arise that if he
or she were not a member of the National Assembly, would cause that member to
be disqualified for election under this Constitution or any other Act of
Parliament’.
In simpler language a
member’s seat shall fall vacant if while still
a member he inter alia ceases to be a citizen of
Malawi; somehow becomes unable to read the white man’s
language or to take an active part in Parliamentary business, somehow ceases to
be a registered voter in a constituency; is adjudged to be a bankrupt or
mentally incompetent; becomes a member and starts serving in the Malawi Police
Service or the Defence Forces of Malawi; is convicted by a competent court of
any violation of any law relating to election of the President or members of
Parliament or is convicted of any crime involving dishonesty or moral
turpitude. To answer the question posed by our plaintiffs therefore we would
say that section 51 of the Constitution applies to serving members of
Parliament in so far as their ‘exclusion’ from their seats is concerned. Applied
to this our case the question still remains whether contempt of court is a
crime and if yes whether it involves dishonesty or moral turpitude. If the
answers be in the negative sections 51 and 63 will not be engaged. If yes they
will be.
‘Considering
that the proceedings relating to the motion to declare vacant the seats of the
plaintiffs were conducted in a manner that breached standing orders of the
National Assembly, notably Standing Orders 18 and 25(2), whether those
proceedings and the motion passed were valid’
(sic)
We doubt whether our
plaintiffs are certain about the issue(s) they want us to determine courtesy of
paragraph 8 of the Originating Summons. It appears to us that in one part our
plaintiffs present us with a fait
accompli to wit the fact the proceedings in issue were in breach of
Standing Orders 18 and 25(2). At the same time they ask us whether the
proceedings in issue and the motion passed thereunder
are valid. We have no doubt whatsoever that when our plaintiffs ask whether the
proceedings and the motion are valid they do so in view of the fact that
Standing Orders 18 and 25(2) were not complied with. If we might say so, we are
of the opinion that our plaintiffs should have first brought into this court
the question whether the proceedings were conducted in breach of Standing
Orders 18 and 25(2). Depending on our answer to such a question we would have
gone on to determine whether or not the said proceedings/motion were/are valid.
As the matter is presently put, this Court runs the risk of turning itself into
a laughing stock. If we answer the
question by saying the proceedings and therefore the motion were not valid we
are in effect agreeing with the assertion that the proceedings were conducted
in breach of parliamentary Standing Orders without so much as hearing any
argument or making our own decision on it. On the other hand if we say that the
proceedings/motion are valid we shall have
contradicted ourselves. We will have agreed that the proceedings were conducted
in breach of Standing Orders 18 and 25(2) and yet still find the said
proceedings and/or motion are valid. It is something
we can do without at this stage. Paragraph 8 of the Originating Summons does
not, in our view, raise any question for our consideration.
Whether Parliament has power to disqualify the Plaintiffs
from their seats in Parliament or whether such power lies with the Electoral
Commission.
Assuming the present
context there are fundamental questions to be considered here: Firstly were our
Plaintiffs disqualified? Secondly was the disqualification by Parliament?
The Constitution in
section 49 says about Parliament:
‘For purposes of this Constitution,
unless otherwise provided, Parliament consists of the National Assembly, the
Senate and the President as Head of State’.
Granted the Senate is
no more but we cannot seriously say that Parliament disqualified the
plaintiffs. Neither can we say, if the events of
December 12th and 13th 2002 are anything to go by, that they
were disqualified. We are of the view that paragraph 9 of the Originating
Summons raises no question for our consideration.
Considering all the circumstances of the committal
proceedings in Civil Cause No. 1841 of 2001 filed at the Principal Registry,
whether the relevant contempt was criminal or civil
What is contempt of court?
According to the case
of Attorney General v Times Newspapers
Ltd [1991] 2 WLR 994 contempt of court is based not on any exaggerated
notion of the dignity of individuals be they judges, witnesses or others but on
the duty of preventing any attempt to interfere with the administration of
justice. It is according to the Practice Notes to order 52 rule 1 of RSC a term
of ancient origin having been used in
Blacks Law Dictionary
6th Ed defines contempt of court as:
‘Any act which is calculated to
embarrass, hinder, or obstruct court in administration of justice, or which is
calculated to lessen its authority or its dignity. Committed by a person who
does any act in contravention of its authority or dignity, or tending to impede
or frustrate the administration of justice, or by one who, being under the
court’s authority as a party to a proceeding
therein, willfully disobeys its lawful orders or fails to comply with an
undertaking which has been given.’
Is it a crime or not?
We have no doubt on
the basis of precedent that contempt is categorized into civil and criminal
contempt. It is a distinction that is not largely appreciated. In the case of Attorney General v
Times Newspaper Ltd [1992] AC 191 Lord Oliver said of the distinction:
‘A distinction which has been variously
described as unhelpful or largely meaningless is sometimes drawn between what
is described as civil contempt and criminal contempt’.
Such is the distaste
about the distinction that in the case of Attorney
General v Newspaper Publishing plc [1988] Ch 333
the Court of Appeal in
And speaking about
the difference between criminal and civil contempt the Practice Notes to Order
52/1 RSC (1999 edition) said the chief instance of civil contempt (or ‘contempt in procedure’) is disobedience to an order of the
Court by a party to the proceedings while the chief instance of criminal
contempt are contempt in facie curiae by any person (e.g. by
hurling abuse or an object at the Court) and conduct obstructing or calculated
to prejudice the due administration of justice. There are cited therein the
cases of Re Bahamas Islands [1893]
AC 138 at146 and Seldon v Wilde [1911] 1 KB 701.
Black’s Law Dictionary is more expansive in
its classification of contempt. It talks of direct contempt that is committed
in the immediate view and presence of the court such as insulting language or
acts of violence or so near the presence of the court as to obstruct the due
and orderly course of proceedings. These are punishable summarily.
Then there is
constructive contempt which are those that arise from
matters not occurring in or near the presence of the court, but which tend to
obstruct or defeat the administration of justice. This is chiefly used with
reference to the failure or refusal of a party to obey a lawful order, injunction,
or decree of the court laying upon him a duty of
action or forbearance.
Then it comes to
civil and criminal contempt. Civil contempt are those
quasi contempt which consist in the failure to do something which the party is
ordered by the court to do for the benefit or advantage of another party to the
proceeding before the court. Criminal contempt on the other hand are acts done
in disrespect of the court or its process or which obstruct the administration
of justice or tend to bring the court into disrespect. A civil contempt is not
an offence against the dignity of the court, but against the party in whose
behalf the mandate of the court was issued, and a fine is imposed for his
indemnity. But criminal contempt are offences upon the court such as willful
disobedience of a lawful writ, process, order, rule, or command of court, and a
fine or imprisonment is imposed upon the contemnor for the purpose of
punishment. See page 318 – 319 of Black’s
Law Dictionary.
Is the contempt herein criminal?
To answer this
question we have first to define what a crime and also revisit our above
references to criminal contempt.
What is a crime?
Both parties resorted
to the definition of crime in Black’s
Law Dictionary 6th edition at page 370. It is clear however that
neither party gave us the full definition of crime as therein put. We will not
speculate as to why. But
rather than go by the definitions given to us via the submissions we will
reproduce in full that which appears in the said dictionary which is that crime
is:
‘A positive or negative act in violation
of penal law.
An offence against the State or the
Stroud’s Judicial Dictionary 3rd
edition refers to a definition of crime by Day, J. in Conybeare v
‘A crime I would define as an offence
against the Crown for which an indictment will lie’.
In
Re Moseley [1893] AC 138 a case also
cited in the same edition of Stroud’s
Judicial Dictionary a crime was defined as:
‘ An offence against the Crown punishable
by fine or imprisonment’.
From the above
definitions it is clear in our view that a crime involves the breach of duties
which an individual owes to the public. It is why in our further view that the
definition in Black’s Law Dictionary
places emphasis on the State being any one of the 51 states making up the
The above thinking is
also the view of three authors of eminence. Sir Carleton Allen says in Legal Duties at page 233 – 234 that:
‘Crime is crime because it consists in
wrongdoing which directly and in serious degree threatens the security or well
being of society, and because it is not safe to leave it redressable
only by compensation of the party injured’.
Smith and Hogan in
the seventh edition of their book Criminal
Law at page 17 say that crimes are:
‘Wrongs which the judges have held, or
parliament has from time to time laid down, are sufficiently injurious to the
public to warrant the application of criminal procedure to deal with them’.
H M Hart in ‘The Aims of the Criminal Law’ (1958)
23 Law and Contemporary Problems, 405 said about crime:
‘It is not simply anything which the
legislature chooses to call ‘crime’. It is not simply anti-social conduct
which public officers are given a responsibility to suppress. It is not simply
any conduct to which a legislature chooses to attach a ‘criminal penalty’. It is conduct which, if duly shown to
have taken place, will incur a formal and solemn pronouncement of the moral
condemnation of the community’.
What is Criminal contempt?
In
the case of Re Dunn [1906] Vict. LR 403 it was talked
about in the following terms:
‘The
essence of contempt of court is action amounting to interference with or obstruction to, or having a
tendency to interfere with or to obstruct
the due administration of justice’.
In Attorney General v
Leveller Magazine Ltd [1979] AC 440 Lord Diplock
at 449 defines criminal contempt of court at common law as behavior ‘involving an interference with the due
administration of justice, either in a particular case or more generally as a
continuous process’.
The Practice Notes to
Order 52/1 RSC give inter alia the following examples of
criminal contempt:
i.
Contempt in the face of the court;
ii.
Words written or spoken scandalizing
the Court;
iii.
Words written or spoken calculated to
interfere with the course of justice;
iv.
Acts calculated to prejudice the due
course of justice
Above we made some
references to criminal contempt obtained from Black’s
Law Dictionary. We have them in mind even now. We however thought it imprudent
for fear of being repetitive to reproduce them at this stage.
In our own
jurisdiction in the case of Osman v
Reginam 1964-66 ALR Mal 595 criminal contempt was referred to as any act
done or writing published and calculated
to lower the court’s authority or any
conduct likely to interfere with the administration of justice.
The parties’
arguments
Our plaintiffs argue
that the contempt in respect of which they were convicted cannot be criminal.
There are several reasons they argue thus. We try and recollect them as best as
possible.
Firstly they say that the chief instance of
criminal contempt is contempt in the face of the court such as hurling abuse or
an object at the court or indeed conduct obstructing or calculated to prejudice
the due administration of justice. In their view they committed no contempt in
the face of the court, they did not hurl abuse or an object at the court
neither did they obstruct or prejudice the administration of justice. In so far
as they are concerned they disobeyed a judgment or order which in terms of
Practice Note No 52/1/8 as read with Practice Note No 52/1/14 is a civil
contempt.
Secondly they argue
that disobeying an injunction does not fit into the definition of a crime as
had from Black’s Law Dictionary. As
they understand the said definition disobeying an injunction is not a violation
of a penal law nor is it an offence against the State for which a specific
punishment is stipulated. Again in our plaintiffs’
view such of their conduct as is the subject of these proceedings fits in
neatly with the definition of civil contempt in Black’s
Law Dictionary as to leave no reasonable person in any doubt as to the fact
that they were guilty of civil contempt.
Thirdly they argue
that the fact that the trial Judge had to be satisfied beyond reasonable doubt
of their ‘guilt’ or that he fined them in default
imprisonment does not of itself make the contempt criminal. They cited the case
of Re Bramblevale [1970] Ch 128 as
authority that the standard of proof and the punishments are usually the same
for contempt of court be they civil or criminal.
In their oral
arguments the plaintiffs said that it is important to note that the Judge never
used the words ‘convict’ in his judgment. That should be an
indication enough that the case before him was not criminal in nature.
Lastly the plaintiffs
argue that if the contempt was criminal in nature the prosecution thereof would
have been done under section 113the Penal Code by or under the direction of the
Director of Public Prosecutions. That it was not clearly shows in the view of
our plaintiffs that the matter was civil. A fact vindicated by the fact that
the Court went on to award costs.
The defendant has
referred us to various cases to show that the contempt herein is criminal.
He says there is no
such thing as criminal and civil contempt. Contempt is by its very nature
criminal and involves two elements mens rea and actus
‘A
contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must be
satisfactorily proved. To use the time honored
phrase it must be proved beyond reasonable doubt’.
Proof enough in the
view of the defendant that contempt is criminal in nature.
As to the fact that
the Director of Public Prosecutions did not prosecute the contempt or that it
was not prosecuted under section 113 of the Penal Code the defendant says that
that per
se does not mean that the contempt is civil. Section 113 only regulates
contempt committed in the face of the court but does not take away the efficacy
of Order 52 RSC in so far as the enforcement of contempt is concerned.
On our part we think
that the matter of whether the contempt herein is civil or criminal is not that
complicated. We would have gone straight into that discussion but for the fact
that we feel obliged to dispel certain misconceptions that the parties before
us seem to have in respect of contempt.
Firstly, and we say
this hereinabove as well, there can be no doubt that there is a distinction
between civil and criminal contempt.
Secondly it is a
misconception to proceed on the basis that it is only criminal contempt that
must be proved beyond reasonable doubt. In the Re Bramblevale case cited above the court
said that proof beyond reasonable doubt is applicable even in civil contempt
cases. This principally because quasi-criminal sanctions are
applicable in civil contempt as well. When therefore a court talks of
proof beyond reasonable doubt in a contempt case it does not automatically mean
that the case is of criminal contempt. It is most likely because that
particular case involves criminal contempt. Reference to standard of proof is
therefore not a good guide to whether a particular contempt is civil or
criminal in nature.
Thirdly it wrong to
say that the contempt was civil merely because costs were awarded to one of the
parties. Section 33 of the Penal Code and 142 of the Civil Procedure and
Evidence Code (CP&EC) allow the award of costs in criminal cease. Indeed in
the case of the Director of Public
Prosecutions v Dr Hastings Kamuzu Banda & Five Others MSCA Criminal
Appeal No 21 of 1995(unrep) Miss Cecilia Tamanda Kadzamira was awarded
costs. That did not by any stretch of the imagination make it a civil matter.
Fourthly we have to
add our voice to the assertion that the mere fact that the contempt herein was
not prosecuted by or under the auspices of the DPP or under section 113 of the
Penal Code does not make the contempt civil. Section 113 in our opinion codifies
contempt in the face of the court. It does not however take away the
jurisdiction of the superior court to hear matters of contempt be they civil or
criminal.
We must conclude
therefore that whether a contempt is civil or criminal
has nothing to do with the issues raised by the parties and discussed above. In
our view it has everything to do with whether the alleged contempt fits the
various definitions of crime and criminal contempt given herein above. We will
now proceed to see if they do.
If we go back to such
definitions we will recall that a crime has generally been described as being
more than antisocial behavior; a wrong that poses a serious threat to society’s well being; a wrong that is injurious
to the public; and a violation of duties that one owes the society for the
breach of which the law attaches sanctions.
A criminal contempt
on the other hand is generally described as interference or obstruction of the
due administration of justice; interference with the due administration of
justice either in a particular case or as a continuous process; and acts
calculated to prejudice the due course of justice.
The main issue at
this stage is whether the plaintiffs committed a crime/criminal
contempt. To answer that question we must take a peek at exactly what it is
that the plaintiffs did.
What exactly did the plaintiffs do?
To answer this
question we recount what Mkandawire J said in Civil
Cause No 1841 of 2001 at pages 17-19 regarding our plaintiffs:
‘I now turn to John Tembo. He is the
leader of this faction of the
Did what they do amount to a serious threat to or cause
injury to the public? In the alternative did it interfere or obstruct with the
due administration of justice?
Let us look at a few
thoughts about this from years before.
Talking about the law
of contempt of court the House of Lords said in Attorney General
V Times Newspapers Ltd[1974]
AC 273 inter alia that the law of contempt
is there to ensure that the authority and administration of the law are
maintained. It went further to say that the law must prevent conduct which
reduces the court’s authority or the
respect paid to it or reflects on the proper administration of justice.
In the same case Lord
Diplock said at page 307 that in any civilized society it is the function of
government to maintain courts of law to which its citizens can have access for
the impartial decision of disputes as to their legal rights and obligations towards
one another individually and towards the state as representing society as a
whole. The provision of such a system for the administration of justice by
courts of law and the maintenance of public confidence in it are essential if
citizens are to live together in peaceful association with one another.
Contempt of court is a generic term that is descriptive of conduct in relation
to particular proceedings in a court of law which tends to undermine that
system or to inhibit citizens from availing themselves of it for the settlement
of their disputes. At page 309 the good judge went to say that contempt of
court is punishable because it undermines the confidence not only of the
parties to the particular litigation but also of the public as potential
suitors, in the due administration of justice by the established courts of law.
Rigby, L J in Seaward v
On the local front it
is useful to refer to the words in the Canadian case of Canadian Metal Co Ltd v Canadian Broadcasting Corp(2) 1975 48 DLR (3rd)
641 at 669 which were quoted with approval by Nyirenda
J in the case of Group Village Headman Kukhaya and Others v Attorney General and Mayi Chatambalala Nkhomola Civil Case No. 173/93(Lilongwe District
Registry). The words are as follows:
‘to allow court orders to be disobeyed
would be to tread the road towards anarchy. If the orders of the court can be
treated with disrespect the whole administration of justice is brought into
scorn …. If the remedies that courts grant to
correct wrongs can be ignored then there will be nothing left for each person
but to take the law into his own hands. Loss of respect for the courts will
quickly result in the destruction of our society’.
On the obstruction or
interference with the due administration of justice the case of Attorney General v
Times Newspapers Ltd said that the question to be asked is not whether the
contemnors’ conduct has actually
interfered with or obstructed the administration of justice. It is whether
there is a real and substantial risk of it interfering or obstructing the due
administration of justice.
Getting back to our
questions above in the light of the precedents there must be little doubt that
the conduct of our plaintiffs in respect of which they were convicted did pause a serious threat to society and was capable of
injuring it. We as well have no doubt that the said conduct posed a real and
substantial risk of interfering with and/or obstructing the due administration
of justice. Their conduct as given above fits both the definition of a criminal
contempt and a crime. And if the point is desirous of further emphasis then
there is a lot to be learnt from the case of Peter Chupa v The Mayor of the
Did it involve dishonesty or moral turpitude?
We have deliberately
not attended to Paragraph 3 on the Originating Summons. In view of our finding
that the contempt complained of herein was criminal the question became
superfluous.
But to answer our
questions above we find it prudent to again define
dishonesty and moral turpitude and subsequently determine whether or not our
crime fits those definitions or not. Having said that we
hasten to add that the law as we understand it does not say that the crime has
to involve both dishonesty and moral turpitude. Any one of them in our
view will suffice.
Dishonesty
Both parties again
relied on the definition in Black’s
Law Dictionary 6th Ed. At page 468 dishonesty
is defined in the following fashion:
Ÿ
Disposition to lie, cheat, deceive, or
defraud;
Ÿ
Untrustworthiness;
Ÿ
Lack of integrity;
Ÿ
Lack of honesty, probity or integrity
in principle;
Ÿ
Lack of fairness and
straightforwardness;
Ÿ
Disposition to defraud, deceive or
betray.
Again
we have to say that our understanding is that dishonesty equals any one of the
above.
Does the crime herein involve
dishonesty?
We
would have wanted to approach this matter by asking the question whether our
plaintiffs conducted themselves in so far as this matter is concerned with
honesty. We think however that that sounds too much like looking for easy
answers. But having said that perhaps it is important to first look at what the
parties think about this.
Our
plaintiffs think there was no dishonesty involved. The plaintiffs had no
disposition to cheat, lie or defraud. Neither did they exhibit a lack of
integrity. They go on to say that they did not even call for the convention. They
only attended. And it was such attendance that put them in contempt. And to
show that there was no dishonesty the convention was held in broad daylight at
a known location.
The
defendant on the other hand says there was dishonesty. To prove that they went
ahead to, what they called, dissect the definition of dishonesty as given in Black’s Law. We feel obliged to reproduce in
full the relevant parts of their argument.
‘ a. lie- a falsehood uttered for purpose
of deception. An intentional misstatement of an untruth designed to mislead
another.(Black’s
Law page922)
The plaintiffs committed this crime
with a string of lies. They pretended not to have been aware of the court
order. When they were called before court to explain themselves, they lied and
deceived further by telling the court that they were not aware of the
injunction. These lies and their clear intention to deceive and mislead the
court and the nation show their lack of honesty and integrity.
b. Deception - is an act of deceiving
i.e. intentional misleading by falsehood spoken or acted (Black’s
Law page 406).
The plaintiffs intentionally went ahead
to hold a convention and by this action mislead the nation.
c. Integrity as defined at page 809 of
Black’s Law goes to the moral principle and
the character as well as honesty and uprightness of an individual.
In this case the plaintiffs would have
been honest only if they heeded the court order and not proceed to hold the
convention. (Sic)
The circumstances surrounding the
holding of that convention show a web of lies, deceit, lack of honesty,
integrity as well as moral character and spine from people who want to rule
this country.
The
defendant also referred us to an article by Carl Thomas in the publication Insight found at www.jewishworldreviews.com
where he commented on contempt in the following terms;
‘contempt is not just a legal term. Its definition goes to the heart
of the character of the person who demonstrates contemptuousness toward the law
and courts, the state of mind of one who despises, shows a lack of respect,
willful disobedience to or upon disrespect of a court, judge or legislative
body’.
We
read the article and appreciated it contents. Allow us to say however that it
did not seem correct to us that the defendant should give us a website and hope
that we have the wherewithal to access it. We would rather the defendant
downloaded the article and made it available to us.
The
defendant concluded his arguments by saying that the plaintiffs’ conduct cast a serious doubt on their morality,
honesty and integrity.
Let
us say at the outset that we feel, with respect, that the defendant went a bit
over the top in its characterization of the plaintiffs. It might be true that
our plaintiffs lied on the fact that they had not been served with the relevant
injunction. It might also be true that our plaintiffs have ambitions of ruling
this country. That quite honestly is none of our business. We would actually
turn ourselves into a circus if we busied ourselves thus.
The
plaintiffs also fell into the same trap when they said that the banned
convention took place in daylight at a known location. Such facts are
irrelevancies as they have more to do with the circumstances in which the
offence was committed rather than the intrinsic nature of the offence itself.
Secondly,
and as a matter of law, when we talk of whether a crime involves dishonesty or
not we do not in getting to that destination consider the circumstances in
which the crime was committed. The crime’s
involvement with dishonesty that should interest us is that which is inherent
to the crime. Not that which comes as a result of the manner in which the crime
was committed. In that regard it is clear that the defendant’s references to the ‘lies’
much as they are most likely true should not concern us. Similarly the fact
that the convention was held in the open at a known location is irrelevant in
determining whether the crime involved dishonesty. What should concern us is
whether at the mention of criminal contempt of court one immediately conceives
a crime that involves dishonesty in that it involves any one of the following:
Ÿ
A disposition to lie , cheat, deceive
or defraud
Ÿ
Untrustworthiness;
Ÿ
Lack of integrity;
Ÿ
Lack of honesty, probity or integrity
in principle;
Ÿ
Lack of fairness and
straightforwardness;
Ÿ
Disposition to defraud, deceive or
betray’
We will say now that
it seems to us to be stretching matters a wee bit too far to so much as suggest
that criminal contempt brings into one’s
mind images of a disposition to lie, cheat, deceive or defraud or indeed
betray. We are of the view that for our purposes we should busy ourselves with
integrity, probity, honesty, fairness and straightforwardness or a lack thereof
and untrustworthiness. So far we have seen definitions of integrity, probity,
honesty, fairness and straightforwardness and trustworthiness garnered from
Black’s Law. Both parties cited these
definitions in this court. We do not have any problems with them. We thought it
prudent all the same to see how these terms are defined in the Oxford College Thesaurus.
integrity
– at page 424 it is defined as
uprightness, honesty, rectitude, righteousness, virtue, probity, morality,
honor, goodness, decency, truthfulness, fairness, sincerity, candor; principles
ethics.
The
second part of integrity refers to nation building. It is irrelevant for our
purposes.
Probity
– we were unable to find it in the
thesaurus. It is clear this term is inbuilt in the definition of integrity. We
did manage to find in the Oxford
Advanced Learners’
Dictionary. Is defined as the quality of being
honest and trustworthiness; integrity (see page 991).
Honesty
– uprightness, honorableness, honor,
integrity, morals, morality, ethics, principle,
high principles, righteousness,
rectitude, virtue, goodness, probity, worthiness, justness, fairness,
incorruptibility, truthfulness, truth, veracity, trustworthiness,
reliability, conscientiousness,
reputability, loyalty, faithfulness,
fidelity.
Fairness
–justness, impartiality, evenhandedness,
objectivity, disinterest, equitability, equity, legality, properness.
Fairness
and straightforwardness –
defined only straightforward as, honest, direct, frank, candid, forthright,
plain speaking, unambiguous.
Trustworthiness
– reliability, dependability, stability
staunchness, loyalty, righteous.
Like we have said
above the definitions are interlinked. But it will be remembered that we did
ask the question whether the plaintiffs conducted themselves with honesty in Kampanje Banda and Others v Gwanda
Chakuamba. We did say that that was perhaps an
easier way of getting to the answer. We went on to further say that the
dishonesty that we are looking for is that which is inherent to the crime
itself. Accordingly we asked whether at the mention of criminal contempt of
court one immediately conjures images of persons prone to lie or deceive or
defraud. We said no. Now we have defined the elements of dishonesty that we
think are relevant to this case. In the light of those definitions can it be
said that criminal contempt conjures up in one’s
mind persons that are unfair; Lack integrity; lack probity; lack fairness and
straightforwardness; and lack trustworthiness? Alternatively did our plaintiffs
in disobeying the injunction act as a woman and a man of integrity, fairness,
probity, honesty, trustworthiness, and straightforwardness? We have searched high and low. We came to the
same conclusions. The first question has to be answered in the positive. The
second one has to be answered in the negative. To answer therefore part of the
question posed by paragraph 4 of our Originating Summons we answer in the
positive. The relevant contempt was a crime involving dishonesty.
Did it involve moral turpitude?
Again we thought it
prudent to start with a definition of moral turpitude before we get to
determine whether or not the relevant contempt involved moral turpitude.
What is moral turpitude
Our parties again
sought assistance from Black’s
Law. At pages 1008 to 1009 Black’s
Law defines moral turpitude as:
‘the act of baseness, vileness, or the
depravity in private and social duties which man owes to fellow man, or to
society in general, contrary to accepted and customary rule of right and duty
between man and man.
Act or behavior that gravely violates
moral sentiment or accepted moral standards of community and is a morally
culpable quality held to be present in some criminal offences as distinguished
from others.
The quality of a
crime involving grave infringement of the moral sentiments of the community as
opposed to statutory mala prohibita.
In Merriam-Webster’s
New International Dictionary(2nd ed)
moral turpitude is defined as:
‘The quality of a crime involving grave
infringement of the moral sentiment of the community as distinguished from
statutory mala prohibita’.
We also had occasion
to look at North American decisions and a statute as to the meaning of moral
turpitude. In the case of Juan Antonio
Montero – Ubri v
Immigration and Naturalization Service case number 00 –
1133 heard by the United States Court of Appeals for the First Circuit crime of
turpitude was generally understood to mean:
‘conduct
….. contrary to
the accepted rules of morality and duties owed between persons or to society in
general ….. an act
which is per se morally reprehensible and intrinsically wrong.’
In the case of The People v Mentilla,
513 NYS 2d 338 the court said as follows regarding crimes involving moral
turpitude:
‘ crimes which do not involve a vicious motive
or a corrupt mind, are, therefore not ‘
considered to be crimes involving moral turpitude’.
In
that case the court found vehicular manslaughter not to be a crime involving
moral turpitude. Neither was a criminal act based on completely unintentional
conduct.
In the case of Phuc Minh Nguyen v Janet Reno,
Attorney General of the
‘ the focus of the moral turpitude analysis
is on the inherent nature of the crime of conviction, as opposed to the
particular circumstances of the actual crime committed. ….
Moral turpitude refers generally to conduct ….
Contrary to the accepted rules of morality and the duties owed between persons
or to society in general ….. an act
which is per se morally reprehensible and intrinsically wrong’.
We were also referred
to the Pennsylvania Code Article 237.9 of which defines crimes involving moral
turpitude as including the following:
‘that
element of personal misconduct in the private and social duties which a person
owes to his fellow human beings or to society in general, which characterizes
the act done as an act of baseness, vileness or depravity, and contrary to the
accepted and customary rule of right and duty between two human beings.
Conduct done
knowingly contrary to justice, honesty or good morals.’
Speaking about the
elements of the crime the Code says:
‘ a determination of whether a crime
involves moral turpitude will be determined based solely upon the elements of
the crime. The underlying facts or details of an individual criminal charge,
indictment or conviction are not relevant to the issue of moral turpitude’.
The parties’
arguments
Our plaintiffs argue
that the contempt did not involve moral turpitude because it did not gravely
violate the community’s
moral sentiments. They said examples of offences involving moral turpitude are
rape, defilement, procuring an abortion, unnatural offences, incest as well as
all offences under Chapter XV of the Penal Code Cap 7:01.
Maybe not
surprisingly the defendant says that criminal contempt is a crime involving
moral turpitude. They say that when the plaintiffs committed this offence they
flouted the duty they owed to the community to wit to observe the law of the
land. Further they say that the plaintiffs scorned justice itself which is the
very foundation of law and order. They, in other words, challenged the
fundamental supremacy of the law.
For our part we feel
that we have given various examples of how contempt is viewed by various courts
both in this jurisdiction and outside and also by legal commentators. How it
interferes and/or obstructs the due administration of justice; how it results
in the loss of respect for our courts; how it may lead to the destruction of
our society; how it shows the contemnor’s
contemptuousness towards the law, the judges and the courts; and how the law of
contempt is for the good not of, for instance Gwanda Chakuamba in this case, but for the public as a whole.
In
‘the
phrase contempt of court does not in the least describe the true nature of the
class of offence with which we are here concerned……..
the offence consists in interfering with the
administration of the law, in impeding and perverting the course of justice ………………..
it is not the dignity of the court which is offended –
a petty and misleading view of issues involved –
it is the fundamental supremacy of the law which is challenged’.
To answer the
question whether the criminal contempt with which the plaintiffs were convicted
is a crime involving moral turpitude we have to proceed in much the same way we
did with dishonesty. We have to look at the offence itself and not the
circumstances in which it was committed.
We must ask ourselves the questions whether the mention of criminal
contempt conjures, in one’s
mind, images of injustice, dishonesty and a lack of good morals; in the
alternative whether by disobeying the injunction the plaintiffs conducted
themselves in accordance with the accepted rules of morality and duties owed
between persons or to society in general.
We find it trite that
one of the duties that one owes to others and society in general is to obey the
law/court orders. For what the trial judge found were
selfish reasons the plaintiffs intentionally disobeyed a lawful order of the
court. This court finds such conduct per se morally reprehensible and
intrinsically wrong. We fail to see how such conduct cannot, once a person is
found guilty of criminal contempt on it, make such a crime one involving moral
turpitude. We find it as a fact that indeed criminal contempt conjures up
images of injustice, dishonesty, and a lack of morals; we also find as a fact
that the plaintiffs conducted themselves in breach of accepted rules of
morality and duties owed between persons or to society in general. The answer
to the second part of Paragraph 4 in the Originating Summons has to be in the
affirmative. In other words and using the words used therein the relevant contempt
was a crime involving moral turpitude.
Whether an expulsion of the plaintiffs from Parliament was
not an infringement of their political rights under section 40 of the
Constitution/ Whether section 51(2) is inconsistent
with sections 40 and 44(2) of the Constitution
We have decided to
consider the above issues together. They are about one and the same thing
really. In arguing this head the plaintiffs say that their expulsion from the
National Assembly was in fact a violation of their political rights in terms of
section 40 of the Constitution. The said section 40 provides inter
alia that subject to the Constitution every
person shall have the right:
‘to participate in peaceful political
activity intended to influence the composition and policies of the Government’.
Excluding them from
the National Assembly’s
activities is therefore a breach of section 40 abovementioned.
Such an argument can
only come about if one is reading section 40 in isolation. we
have seen above that such is not the correct way of interpreting a
Constitution. Section 40 is specifically subject to the Constitution itself.
Thus if you go to section 44(2) of the Constitution one finds that the rights
bestowed under section 40 are capable of being limited as long as such
limitations are ‘prescribed by law; are reasonable, are
recognized by international human rights standards and are necessary in an open
and democratic society’. The proper way of putting across the
plaintiffs’ concerns was not just to say that the
expulsion flouted their section 40 rights but to say that being a limitation it did not
comply with section 44(2) of the Constitution in that it is not prescribed by law; it is
unreasonable; it is not recognized by international human rights standards and
finally that it is not necessary in an open and democratic society. The
question being is that the case?
We discussed at
length the issue of limitation to rights in the case of Maggie Kaunda v Rep Crim Appeal No
8/2001. We said in that case about limitations that first you have to establish
that the plaintiffs' right/freedom has been infringed, denied or breached. This
is for the plaintiffs to establish on a balance of probabilities. If the answer
be in the affirmative then the court goes on to determine whether the limitations
provisions(in our case section 44(2) of the
Constitution) will save the limitation. That is for the alleged infringer, in
this case the defendant, to establish. None of the parties addressed us in the
above fashion regarding limitations. The defendant was content to cite the Maggie Kaunda case but make no comment
on how the limitations herein should be dealt with. Our plaintiffs on the other
hand were content to say only that their expulsion from the National Assembly
was a breach of their rights under section 40 abovementioned.
By the obvious fact
that the plaintiffs will not until the situation of their seats is retrieved
participate in the activities of the National Assembly as members one may
conclude that their political rights under section 40 have thereby been
infringed. The next question is whether such infringements can be saved by
section 44(2) of the Constitution. The answer has to be yes. In the Maggie Kaunda
case we said that for a limitation to pass muster it has to pursue a legitimate
aim and secondly there has to be a reasonable relationship of proportionality
between the means employed to limit the right and the aim sought to be
achieved. It is clear that the aim of section 51 of the Constitution is to make
sure that undesirables did not make it into the National Assembly. It is
equally clear that section 61(1)(e)’s
aim was to enable the removal from the
National Assembly of any member thereof who became whilst still a member an undesirable in terms of section 52 of the
Constitution. The limitation therefore has a legitimate aim unless the
plaintiffs want to get into the House so much they are willing to open the
membership to even rapists, defilers, armed robbers.
On the other hand it
must be noted that section 61 does not impose a blanket ban. The plaintiffs are
free to vote, attend political meetings, demonstrate, stand for office in their
political groupings and participate in a host of other political activities. It
means there is a reasonable proportionality between the means used and the aim
sought to be achieved which is to keep undesirables out of the National
Assembly. If the plaintiffs feel their ‘expulsion’ from the National Assembly infringed
their section 40 rights our conclusion has to be that such a feeling is
misplaced. The ‘expulsion’ quite apart from everything else is
compliant with section 44(2) of the Constitution.
The above applies
with equal force to the plaintiffs’
complaints regarding section 51(2)(c). But more than
that the plaintiffs (like many people actually) seem to us to be laboring under
the belief that one section of the Constitution can be used to abrogate
another. This is not possible. See the Press
Trust Case decisions both in the High Court and in the Malawi Supreme Court
of Appeal. The latter court did also express similar sentiments in the Fred Nseula’s case. In so far as
the plaintiffs’ attack on section
51(2) is based on the foregoing belief it must fail. If on the other hand it is
based on the fact that it is a limitation then we say that it is a limitation
that complies with section 44(2)(c) for the reasons given above and is therefore
perfectly constitutional.
Whether the expulsion of the plaintiffs from parliament was
not in breach of the human rights enshrined in the Constitution as well as the
Universal Declaration of Human rights to which
Firstly we are not
sure we are comfortable with the word expulsion. We said at the beginning that
that does not seem to us to reflect what happened in the National Assembly on
December 12th and 13th 2002. Secondly we again do not
feel comfortable with the interchanging use of parliament and the National
Assembly. Thirdly we would have felt happier if the plaintiffs had specified
which rights in our Constitution have been engaged. Be that as it may we think
we have answered the concerns raised in that paragraph above. The plaintiffs
can still exercise most of their section 40 rights. Even in the National
Assembly it is only their membership of that august House that has been lost.
Otherwise we should imagine they could go sit at whatever appropriate place
within the Chamber and listen to the goings on therein like most people do.
Whether the plaintiffs had a real opportunity of hearing
considering the way the proceedings of their removal from Parliament were
conducted (sic)
This issue gave us
anxious moments. On the one hand there is the realization that to decide
whether or not the plaintiffs were given a hearing we have to go behind the
National Assembly’s decision and review
the actual proceedings of the House. The question being
whether this court has the power to do so.
On the other hand are
the views of the Malawi Supreme Court of Appeal in Fred Nseula v The Attorney General and Malawi
Congress Party MSCA CIVIL APPEAL NO 32/97(unreported) at page 10 where it
said:
‘The
loss of a seat by operation of law is, in our judgment, contained in section
63(1) of the Constitution and it provides as follows:
63(1)(e) if any
circumstances arise that, if he or she were not a member of the National
Assembly, would cause that member to be disqualified for election under this
Constitution or any Act of Parliament’.
As we understand the
Supreme Court a member loses his position by operation of law if she if is
found guilty of a crime involving dishonesty or moral turpitude. If we go back
to our earlier findings herein that is exactly what we have found. If we go
further back that is exactly what the National Assembly found. In our opinion
therefore the plaintiffs kind of automatically lost their seats once they were
found guilty. The National Assembly only served to confirm the matter since
there was doubt as to whether the relevant criminal contempt was a crime
involving dishonesty or moral turpitude.
In this scheme of
things the plaintiffs allege that they were not heard and that certain Standing
Orders were not followed. As we understand them they want the decision of the
National Assembly annulled on those bases.
We do not think that
we should go into the business of determining whether or not the plaintiffs
were heard or whether or not certain Standing Orders were breached. It will be an exercise in futility. Like we
have said already the plaintiffs’
seats fell vacant by operation of law because they were found guilty of an
offence involving dishonesty or moral turpitude. Even if the plaintiffs succeeded in showing
that they were not heard or that some procedures were not followed that is not
going to take away the said conviction. They will still be people who have been
convicted of an offence involving dishonesty or moral turpitude. They will not
be eligible to go back into the House. They will still be barred by section
63(1)(e) abovementioned. The proper course of action
for the plaintiffs is not to talk about whether they were heard or not. Or whether Standing Orders were followed or not. It is to
challenge the finding that the relevant contempt is a crime involving
dishonesty or moral turpitude. We are afraid that in this case at least
paragraph 11 of the Originating Summons raises an irrelevant question.
CONCLUSION
As a matter of
summing up and just so that we do not leave anybody by the wayside we have
answered the plaintiffs’
questions as put in the Originating Summons as follows:
1
The provisions of section 51 of the
Constitution apply to a serving member in so far as vacancies are concerned;
2
The relevant contempt was criminal;
3
The relevant contempt was a crime
involving dishonesty or moral turpitude;
4
The expulsion of the plaintiffs from
the House was not an infringement of their section 40 rights;
5
Section 51(2)(c) is not inconsistent
with sections 40 and 44(2) of the Constitution in so far as this case is
concerned;
6
The expulsion of the plaintiffs was not
in breach of Article 21(1) of the Universal Declaration of Human Rights or any
human rights enshrined in our Constitution; and
7
It is irrelevant in the circumstances
of this case to decide whether the plaintiffs were afforded a proper hearing or
whether the correct procedures were followed before their exclusion from the
House.
COSTS
These are in the
discretion of the court. The plaintiffs have lost the case. Ordinarily the
costs should have followed the event. It appears to us however that the matters
they brought to Court are such that even the defendant and many others have
benefited. It would be inequitable in those circumstances to award costs to the
defendant. Accordingly we order that each party shall pay its own costs.
Delivered in open
court at Mzuzu this 27th day of August
2003.
L P Chikopa
JUDGE