PRINCIPAL
REGISTRY
MISC. CAUSE NO. 35 OF 1999 (TITLE IN ACTION)
IN THE
MATTER OF ELECTIONS; and
IN THE MATTER OF ACCESS TO STATE
CONTROLLED
MEDIA FOR ELECTRAL COMPETATORS;
and
IN THE MATTER OF THE PRESIDENTIAL
PALIAMENTARY ELECTIONS ACT; and
IN THE MATTER OF THE ELECTORAL
COMMISSION
ACT; and
IN THE MATTER OF THE CONSTITUTION
OF MALAWI
BETWEEN:
DR CHARLES
KAFUMBA.......................
...
.........1ST PLAINTIFF
LUKA BANDA...........................................
..
.....
...2ND
PLAINTIFF
LAURENT
KAMULETE................................
......3RD PLAINTIFF
AND
THE ELECTORAL
COMMISSION............................
.......
................1ST
DEFENDANT
THE MALAWI BROADCASTING
COPORATION ..................................
......
......2ND
DEFENDANT
Misc. Cause No. 35/99 Dr Kafumba & Others vs The
Electoral Commission & MBC
CORUM: MKANDAWIRE, J
Kasambara, 0f Counsel for the Plaintiff
Mtawali, of Counsel for the Ist Defendant
Kamphale, of Counsel for the 2nd Defendant
Mrs. Tembo, Official Interpreter
The
plaintiff are requesting the Court to determine the following questions:
1. That
the Ist defendant has a duty in law to ensure that the electoral process is
free and fair;
2. That
equal access to the media for all competitors in the electoral process is an
integral part aspect of the holding of free and fair democratic elections;
3. That
equal coverage of the electoral activities and propaganda of all the
competitors in the electoral process is an integral part of the holding of free
and fair democratic elections;
4. That
the Iast defendant has failed to ensure for all competitors equal and fair
access to the state media;
5. That
the 2nd defendant is under an obligation to accord equal and or free and fair
access to its facilities to all competitors in the electoral process;
6. That
the 2nd defendant has accorded preferential treatment and access to its
facilities to the United Democratic Front and its president and other
candidates;
7. That
the 2nd defendant has in violation of its legal obligations to the nation and all other competitors in
the, electoral process failed to accord
such competitors equal and fair access to its
broadcast facilities.
The
court do give the following or such declarations and directions as may be just
and expedient in the circumstances:
(a) That
the 1st defendants be ordered to take steps to ensure that free and fair
elections are held in the country as required by law.
(b) That
the Ist defendant be directed to take concrete steps to ensure that all
competitors in the electoral process have equal and or and fair access to all
state controlled media and in particular the Malawi Broadcasting Corporation.
(C) That
the 1st defendant be directed to take concrete steps to ensure that all state controlled media and in particular
the Malawi Broadcasting Corporation take concrete steps to accord equal and or
fair access to their facilities to the all competitors in the electoral process
political compliance by all state organs and the Malawi Broadcasting
Corporation in particular with the provisions of the Presidential and
Parliamentary elections Act, the electoral
Commission Act and the Constitution of Malawi internationally recognized in democracies
and in regard to the process of managing the electoral process.
(d) That
the 2nd defendant be directed to comply with the Presidential and Parliamentary
Act, the Electoral Commission Act and the Constitution of Malawi and
internationally recognized practice in democracies and to or equal and or fair
access to its facilities to all competitors in Malawi Electoral process for the
1999 General Elections."
On 18th
May, 1999 I dismissed a similar application on the basis that this Court did
not have original jurisdiction to hear the matter. I stated that in terms of
section 76 (2) of the Constitution, the plaintiff, could not commence the
action in the High Court before complaining in writing to the Electoral
Commission. On that very day, the 18th May, 1999 the plaintiffs sent a written
complaint to the Electoral commission. The complaint is in the following terms:
-
"RE: COMPLAINANTS
OVER BIASED REPORTING AND LIVE VOVERAGE BY MALAWI BROADCASTING CORPORATION
we have been consulted by Dr Kafumba Mr Luka Banda and Mr
Laurent Kamulete (our clients) with instructions to apply to you to ensure that
the public broadcaster, Malawi Broadcasting Corporation (MBC) complies with the
electoral Iaw and Communications Act.
Our instructions are that the MBC is carrying out live
coverage and rebroadcast of President Bakili Muluzi's campaign messages. The
other presidential and parliamentary ycandidates are denied similar
opportunities; and indeed a right of reply to whatever he says concerning them.
A case in point was the President's campaign message in
Mulanje on May 16th, 1999 in which he attacked the MCP and Independent
Candidates. The same applies to live air coverage of the first campaign rally
by UDF and the unveiling of UDF manifesto.
The concept of free and fair elections entails that all
contestants be given equal time by a public broadcaster. What the MBC is doing
is perpetuation of violation of electoral law.
We request the electoral Commission to redress this
irregularity by granting the other contestants air time on the MBC.
Should you fail to take steps to regularise the above
within 5 days of the date hereof we shall proceed to apply for relief in the
High Court."
On 20th
May, 1999 the Electoral Commission sent a reply in the following terms: -
RE:
COMPLAINTS OVER BIASED REPORTING AND LIVE
COVERAGE BY MALAWI BROADCASTING CORPORATION
I am most grateful for your letter dated May 18th, 1999 in
which you submitted to the Commission the above mentioned complaints on behalf
of your clients.
Your concerns will be tabled before the next Commission's
meeting which will be held within a week and you will be informed of the out
come in due course."
Eleven
days later, on 31st May, 1999 to be precise, the plaintiffs commenced these
proceedings. Although the proceedings have been commenced by summons, I take it
that the matter is coming to this Court "by way of appeal in terms of
section 76 (3) of the Constitutions. Mr Kasambara explained that he decided to
take the matter to this court because the 5 days specified in the summons and
the one week given in the Electoral Commission's reply had expired. He cited
the case of Rolf Patel v Electoral
Commission Misc. Civil Cause No. 84 of 1996. I believe that the
plaintiffs rushed to this court considering that campaign period will be over
within a few days.
Although
a number of issues are raised in the summons, I shall restrict myself to the
complaint that was sent on the Electoral Commission. As I see it the complaint
is about live coverage and re-broadcast of president
Bakili Muluzi's campaign messages. As to this it is said that the Electoral
Commission and the Malawi Broadcasting Corporation are in breach of section
45(l) (b) (c) and (f) of the Communications Act in that political parties and
election candidates are not given equitable treatment. It is argued and this
cannot be denied that the radio is a very powerful media. It is only the radio
that can reach the remotest part of Malawi. Section 45 spells out the
Broadcasting policy. It provides as follows: -
45 (1) The Authority shall regulate the
provision of
broadcasting
in Malawi in the manner which it
considers is
best suited
(b) to
ensure the provision of regular news services and programmes on matters of
public interest in Malawi;
(c) to
provide for the broadcast of programmes to support the democratic process
through civic education;
(a)
to ensure equitable treatment
of political parties and election candidates by all broadcasting licensees
during any election period.
In so
far as these proceedings are concerned it is section 45 (1) (f) which is more
pertinent. In my understanding this means that no political party is to be
discriminated against. During election period, and, we are now in election
period, all political parties and election candidates must be given equitable
treatment. In my view what it means is
that if campaign messages of one politica
party or of election candidates of one political party are broadcast live on MBC, then that must apply
to all political parties and all
election candidates. Failure to do that would mean giving preferential treatment to one political party or some election candidates. However it is clear
from this section, that is section 45
of the Communications Act, that it is the Malawi Communications Regulatory Authority that is to regulate the conduct of broadcasting licensees.
Closely
related to section 45 (1) (f) of the Communications Act is section 58 of the
Parliamentary and Presidential Elections Act which provides as follows:-
"Every public officer and public entity or authority
shall give and be seen to give equal treatment to all political parties to
enable each political party to conduct its campaign freely."
It is
abundantly clear that giving live coverage of campaign message of one political
party to the exclusion of others violates this provision. Apart from receiving
equal treatment every political party must enjoy equal rights as provided in
section 59 of the Parliamentary and Presidential Elections Act.
The
functions and powers of the Electoral Commission are provided in section 8 of
the Electoral Commission Act as follows:
8(1) In
addition to the broad functions and powers conferred on the Commission by the
Constitution and subject to the Constitution, the Commission shall exercise
general direction and supervision over the conduct of every election and
without prejudice to the
generality of such functions and powers it shall have the
following further functions:
(j) to
promote public awareness of electoral matters through the media and other
appropriate and effective means and to conduct civic and voter education on
such matters;
(m) to
take measures and to do such other things as are necessary for conducting free
and fair elections.
In one
of their prayers the plaintiffs are requesting the court to order the Electoral
Commission where the 1st defendants:
"to take
steps to ensure that free and fair elections are held in the country as
required by law."
I
cannot make such an order because there is no basis for it. I am fully
satisfied from the affidavits of Roosevelt Gondwe, the Chief Elections Officer
and Flora Chetu Chirwa that the Electoral Commission is aware that its primary
function is to ensure that the country holds free and fair elections. In his
affidavit Mr Gondwe has said that under section 63 of the Parliamentary and
Presidential Elections Act the Commission has a duty to ensure that every
substance of the campaign propaganda of every party is reported to the 2nd
defendant. On their radio news broadcasts and this it has one. He also said
that in compliance with section 63 (2) of the Parliamentary and Presidential
Elections Act the Commission has arranged with the 2nd defendant that every
political party contesting in the General Elections be given equal time of 5
minutes to air their campaign messages. Finally Mr Gondwe said that the
Commission is enforcing its mandate as far as coverage of the electoral issues
on Malawi Broadcasting Corporation are concerne. This is only in compliance of
section 63 of Par iamentary and Presidential Elections as there is no code of
conduct governing the relationship between the two defendants. In other words
there is no enforcement mechanism.
In her
affidavit Mrs Chirwa says that the Electoral Commission convened a meeting with
MBC at which the latter was instructed to accord equal access to all competitors in the forthcoming general
elections. In this respect she exhibited a letter addressed to all political
parties advising hem of arrangements that had been with the 2nd defendant. She
has said further that the commission has ensured that all competitors in the
General Elections have equal an air access to Malawi Broadcasting Corporation.
She has supported this by a number of exhibits. In this judgment I can only
refer to a Press Re ease ate 22nd March 1999 which reads.
"The
Electoral Commission wishes to invite all registered political parties whose
candidates intend to contest in the May 25, 1999 Parliamentary and Presidential
Elections to identify their spokesman who could be in position to explain their
party's manifesto in both English and Chichewa for a recording at Malawi
Broadcasting Corporation tomorrow Tuesday, March 23 at 5.00 pm.
The subject to be
dealt with tomorrow is food security. The following will also be, subjects to
be dealt with in the forthcoming weeks. Security and Human rights, Health care,
Education, Economy, Land Distribution, Employment and Industrialisation,
Foreign Policy and Regional Integration, Infrastructure and Environment.
Every party is free to come with enough
information for a number of programmes as it wishes."
All
these programmes are funded by the Electoral Commission. In order to facilitate
a smooth running of the programmes the two defendants have formed a task force.
There is even put in place a media committee for the promotion of free and fair
elections. Mr Mtawali told the court in his submissions that to ensure that all
goes well the Election Commission supplied Malawi Broadcasting Corporation with
three vehicles and tape recorders to assist the latter in covering the
contesters. It is Mr Mtawali's submission that the 1st defendant has done all
that is there to be done for it to comply with the relevant laws. He said that
to go beyond what they have done would taking over the management of Malawi Broadcasting
Corporation. I am inclined to agree with Mr Mtawali. It appears to me that the
Commission has done everything under their mandate. Certainly the Commission
cannot take over running of Malawi Broadcasting Corporation. Mr Kasambara made
several references to the Communications Act. He also referred to the third
schedule to the Act. This schedule provides a code of conduct for broadcasting
services. Let me observe that Section 3 establishes the Malawi Communications
Regulatory Authority, which is charged with overseeing compliance with this
Act. The Code of Conduct I have referred to can only be enforced by the
Authority. Section 55 (2) of the Communications Act for example provides that
complaints regarding the code of
conduct
be lodged with the Authority.
After reading all the affidavits and
exhibits thereto and after listening to learned counsel I am satisfied that the
Commission has done all that it can do to ensure that all political parties
have free and equal access to Malawi Broadcasting Corporation. The Commission
is not in breach of any of the provisions listed by the plaintiffs. As for the
holding of Free and Fair elections I find that the Electoral Commission is on
the right track towards achieving that goal in so far as arrangements for free
and equal access to Malawi Broadcasting Corporation are concerned. I have added
this because I am fully aware that free and equal access to the radio is not
the only component of free and fair elections. Indeed there are several others.
In the
result I find that no case has made out a against the 1st defendant and I
dismiss the action and I grant them with costs.
I now
turn to the 2nd defendant the Malawi Broadcasting Corporation. It was submitted
by Mr Kamphale learned Counsel for the 2nd defendant that it is an age old
practice in this country to broadcast live all presidential functions. He said
that Malawi Broadcasting Corporation is under an obligatory to give live
coverage of all presidential functions. The plaintiffs are not questioning the live
coverage of presidential functions. What they are questioning is the breach of
any of the provisions listed by the plaintiffs. As for the holding of Free and
Fair elections, I find that the Electoral Commission is on the right track
towards the right to achieve that goal in so far as arrangements for free and
equal access to Malawi Broadcasting Corporation are concerned.
In the result I find that no case has made out against the
Ist defendant with costs.
I now
turn to the 2nd defendant the Malawi Broadcasting corporation. It was submitted
by Mr Kamphale learned Counsel for the 2nd defendant that it is an age old
practice in this country to broacast live all presidential functions. He said
that Malawi Broadcasting Corporation is under an obligation to give live
coverage of all presidential functions. The plaintiffs are not questioning the
live coverage of presidential functions. What they are questioning the live
coverage of campaign messages. During those functions Mr Kamphambe pose a
question. In the course of a presidential function, campaign messages are made
what should Malawi Broadcasting Corporation do shut down the microphone and
stop live coverage? No, that would not be the proper thing to do and that is
not the plaintiffs case. The plaintiff wants all political parties and
election candidates to be treated equally. If in the process of presidential
functions campaign messages are covered live then the same should be accorded
to all political parties and election candidates. I have already referred to
Section 45(l) (f) of the Communications Act and Section 58 of the Parliamentary
and Presidential Elections Act. These Sections provide that all political
parties and election candidates be given equitable or equal treatment during
election or campaign period. To give live coverage to only one party and its
candidates is not only in breach of the above Sections but is also
discriminatory. Discrimination is prohibited under Section 20 of the
Constitution. Put simply it boils down to this: If campaign messages are
broadcast live at a presidential function, then equal treatment means that
campaign rallies of other political parties or at least Campaign rallies of
other presidential candidates be broadcast live. That would give other
political parties or other presidential candidates an opportunity to reply to
some of the matters raised. That is what equitable treatment of political
parties and elections candidates would entail. I agree with the plaintiffs that
equal treatment of all competitors is a component of free and fair elections.
I would also urge the second defendant to co-operate with
the Electoral Commission. Under Section 19 of the Electoral Commission Act,
Malawi Broadcasting Corporation is under a duty to cooperate with the
Commission. I have noted that the Electoral Commission has put up good
programmes for free and equal access by all political parties but the MBC chose
to go outside that programme. I think it is important that the two institutions
co-operate.
Perhaps
let me mention one thing before I conclude. In his submissions Mr Kasambara
cited a number of international guidelines. I have not referred to any of them
in my judgement because I find the points raised by the plaintiffs are well
covered by our own laws.
In conclusion I find the second defendant the
Malawi Broadcasting Corporation to be in breach of sections 58 and 59 of the
Parliamentary and Presidential elections Acts, section 19 of the Electoral
Commission Act and section 20 of the Constitution and I direct that the second defendant
do comply with those provisions.
The action against the defendant therefore succeeds. Costs
to the plaintiffs.
Pronounced in Chambers this 1oth day of June, 1999
at Blantyre.
M P MKANDAWIRE
Mr
Kamphale : I seek leave to appeal.
Court Leave is granted.
M P
MKANDAWIRE
Misc. Cause No. 35/99 Dr Kafumba & Othfrs vs The
Electoral Commission & MBC