IN
THE HIGH COURT OF MALAWI
PRINCIPAL
REGISTRY
-AND-
THE ATTORNEY GENERAL
…………………………………………….DEFENDANT
CORAM: CHIMASULA PHIRI, J.
J. M. Chirwa - of
counsel for the Attorney General
Mr Kaundama - Official
Interpreter
Mrs Chingota - Court
Reporter
---------------------------------------------------------------------------------
JUDGMENT
In this judgment I will set
out the pleadings in full then consider the facts, evidence, issues and law.
1. PLEADINGS
1.1 Statement of Claim
The plaintiff’s claim is for
an injunction restraining the Malawi Government by its servants or agents from
removing the perimeter fence on the plaintiff’s cattle ranch, from trespassing
on the said ranch and from in any way interfering
with the plaintiff’s property rights
on the said ranch and from evicting the plaintiff and his servants or agents
from the said ranch and for declarations that such eviction, removal of the
perimeter fence and interference with the plaintiff’s property rights would be
in violation of the plaintiff’s constitutional rights to own property, to
engage in economic activity and not to have his property expropriated in peace
time and further that even in a state of emergency it would be unlawful to
expropriate such property without compensation.
2. AMENDED STATEMENT OF CLAIM
a. The plaintiff is the administrator of the estate of Dr H.
Kamuzu Banda who died on 25th November 1997 hereinafter called the
deceased.
b. The deceased was at all material times
the owner of 4636 hectares of customary land known as Shire Valley Cattle Ranch
situated in the Chikwawa District near Paiva Village.
c. On
the said Ranch the deceased raises cattle for beef which is sold to members of
the public directly and through Cold Storage Company Limited.
d. The
ranch is well developed employing about 75 people and over K3,000,000.00 has
been invested on it.
e. The ranch originally covered 6,426
hectares and was divided into sections A, B, and C.
f. In or about 1995, the deceased was
requested by the then Minister of Lands and Valuation to surrender Section C of
the farm for the distribution to people in the area.
g. After consulting the local people and
upon being satisfied that the local people only required Section C, the
deceased agreed to surrender the said section and did so surrender after having
Section C resurveyed at his own cost.
h. The then Minister of Lands and
Valuation advised the deceased to apply for a lease for sections A & B
which the deceased did.
i. In or about January 1997, the Ministry
of Lands and Valuation informed the deceased that his application had been
rejected and demanded that he vacates the land.
j. The said Ministry of Lands did not
state the law under which the demand was being made and offered no
compensation.
k. By letter dated 7th August 1997 the
Ministry threatened to remove the perimeter fence surrounding the ranch which
threat was repeated in a letter dated 11th September 1997 and to distribute the
land to the deceased's neighbours thereby evicting the deceased, his servants
and agents from the said land and forcing the deceased to remove the cattle
from the land.
i.
The
plaintiff contends that the action contemplated by Government will violate
deceased estate’s constitutional rights to own property, to engage in economic
activity and not to have the property expropriated except when a state of
emergency has been declared and even when a state of emergency has been
declared, it would be unlawful to expropriate such property without
compensation.
ii.
The
plaintiff further contends that no state of emergency has been declared and any
entry on the land without his authority will constitute a trespass to his land.
iii.
Wherefore
the plaintiff prays for:-
i) A declaration that the removal of the perimeter fence and
eviction of the plaintiff and his employees would be an interference with the
plaintiff’s constitutional right to own property, to engage in economic
activity and not to have his property expropriated except when a state of
emergency has been declared and even then not without compensation.
ii) An injunction restraining the Malawi
Government by its servants or agents from removing the perimeter fence on the
plaintiff’s cattle ranch, from evicting the plaintiff and his servants or
agents from the said Ranch or from in any way
trespassing on to the ranch and from interfering with the plaintiff’s property
rights.
iii) In the alternative, an order that
the Malawi Government comply with the provisions of the Constitution relating
to expropriation of property.
i.
Costs
of the action.
3. AMENDED
DEFENCE
a The defendant denies that the
plaintiff did at any time have title to the 4636 hectares of customary land
known as the Shire Valley Cattle ranch situate in the Chikwawa District near
Paiva Village as alleged in paragraph 2 of the Amended Statement of Claim.
b. Further, and in the alternative, the
Defendant contends that in accordance with Section 25 of the Land Act (Cap.
57:01 of the Laws of Malawi) the said land is and was at all material times the
lawful and undoubted property of the people of Malawi and is and was vested in
perpetuity in the President of the Republic of Malawi.
c. The Defendant has no knowledge of the
matters averred in paragraphs 3,4 and 5 of the Amended Statement of Claim but
will at the trial contend that any dealing with the land by the Plaintiff is
and was in the premises unlawful and tantamount to a trespass.
d. The Defendant denies the matters
averred in paragraph 6 of the Amended Statement of Claim and will at the trial
contend that the then Minister of Lands and Valuation (hereinafter referred to
as “the Minister”) only made a suggestion to the plaintiff that if the
plaintiff wanted to acquire any title to the land the plaintiff had to apply
for a lease in the prescribed manner after the land had been re-surveyed in
accordance with Section 26 of the said Land Act.
e. The Defendant repeats paragraph 4
hereof and contends that the said suggestion did not in any way constitute a
commitment on the part of the Minister to grant a lease of the land to the
Plaintiff as would estop him from re-possessing the land from the plaintiff.
f. Further or in the alternative, the
Defendant contends that the suggestion made to the Plaintiff as aforesaid was
and is not a grant of the lease of the land or any part thereof to the
plaintiff by the Malawi Government.
g. The Defendant has no knowledge of the
consultations alleged to have been made by the plaintiff in paragraph 7 of the
Amended Statement of Claim but will at the trial contend that if any
consultations were made by the plaintiff as alleged, the plaintiff did not
thereby acquire a lease of the land or any part thereof.
h. The defendant admits paragraph 9 of the
Amended Statement of Claim and contends that the Minister was in the premises
not obliged to state the law under which it required the plaintiff to vacate
the said land nor offer any compensation for its requirement.
The defendant will at the
trial refer to the provisions of Sections 27 and 28 of the said Land Act for
the true intention of the legislature.
i. The defendant contends that having
unlawful occupied or forcibly acquired the land, the plaintiff is not entitled
to any compensation or notice to quit as averred or implied in paragraph 10 of
the Amendment Statement of Claim.
j. The defendant admits that the Minister
indicated his intention to distribute the land to the landless people living
around the Ranch as alleged in paragraph 11 of the Amended Statement of Claim
and will at the trial contend that the Minister intended to act as aforesaid in
accordance with Section 26 of the said Land Act.
k. The defendant denies that by requiring
the plaintiff to vacate and surrender the land the plaintiff’s constitutional
rights as alleged in paragraph 12 of the Amended Statement of Claim would in
any way be violated and puts the plaintiff to strict proof thereof.
l. The defendant refers to paragraph 13 of the Amended
Statement of Claim and will at the trial contend that the defendant is entitled
to enter upon the land and evict the plaintiff therefrom without offering him
any compensation therefor.
m. SAVE
as hereinbefore expressly admitted the defendant denies each and every
allegation in the Amended Statement of Claim contained as if the same were
herein set out and traversed seriatim.
n. IN
the premises the defendant denies that the plaintiff is entitled to the grant
of the declaration, injunction and alternative relief sought by him in
paragraphs 13(a), 13(b) and 13(c) respectively, of the Amended Statement of Claim and prays that the action be dismissed
with costs to the defendant.
4. FACTS
The subject of the claim is 4636 hectares of land
known as the Shire Valley Cattle Ranch situate at Paiva Village in Chikwawa
District. The land was given to the
Late President Dr. H. Kamuzu Banda by the traditional Chiefs in the area.
In 1974 President Banda held a public meeting in
Chikwawa district which was attended by Chiefs from Nsanje as well as that
district. The people of the area gave
him a number of gifts including heads of cattle. At the end of the meeting he informed the Chiefs that in order to
assist them improve their cattle he had decided not to move the cattle out of
the area. Instead he would import a
better breed of cattle which could cross breed with the local cattle. He therefore asked them to find land where
the cattle could be accommodated. After
an extensive search for suitable land in both districts the Chiefs identified
the customary land at Paiva Village and gave it to him. The land was not suitable for cultivation
because it was stony and was not fertile.
It had not been used for cultivation since time immemorial. The cattle were moved into the area and
President Banda honoured his promise by introducing Brahman cattle into the
ranch. The people in the surrounding
villages were and are allowed to have their cattle cross breed with the
Brahman. President Banda was in cattle
ranching business until he died. This
means he was in business for about twenty-five years. His personal representative still runs the farm.
In or about 1996, President Banda applied for a
lease of the subject land; and in or about January 1997, the Department of Lands
and Valuation rejected the application.
In August 1997, President Banda was asked to vacate the land and
relocate the herds of cattle from the ranch, as the Government was desirous of
allocating the land to landless people living near or around the ranch.
5. EVIDENCE
This witness testified that
he was the Ranch Manager at the plaintiff's ranch. He was initially employed as veterinary assistant and was posted
to Nchalo in 1984. Both Lisandwa and
Shire Valley Cattle Ranch belonged to President Banda.
He described the cattle
ranch as comprising three sections:
namely A, B, and C. Section A is
a 2020 hectare piece of land on which there are houses, a garage, shed, a block
of three offices, water reservoirs, and a pump house. Water is pumped from Shire River. The vegetation consists of natural and artificial trees such as
blue gums. The soils are poor,
waterlogged, salty and generally dambo sand and therefore not suitable for
cultivation. Food grown on this type of
soil would not taste good. The section
is fenced with barbed wire. Animals are
not allowed to roam. The grass is cut
and carried for them to feed. Apart
from the cattle there are also wild animals such as buffaloes, bushbucks,
warthogs, reedbucks and kudus. These
mingle with cattle freely. There are
also guinea fowls.
Section B is divided into
two. There is thus Section B1 and
B2. The vegetation on B1 consists of
natural trees. Just like on Section A
are houses and water reservoirs. Water
is pumped from boreholes. It is fenced
with barbed wire. The soils are rocky
or gravel like and not suitable for farming.
Section B2 is also endowed
with natural trees and has similar facilities as those on B1. Nearest to Section B1 is Paiva Village which
is under the control of village headman Paiva who is answerable to Group
Village Headman Mphedza. Section B2 is
bounded by Chamanga Village. Section B1
covers 1,340 hectares whilst B2 is a 1,152-hectare piece of land.
Section C is near Chief Jasi
and is west of Section B. It is
comprised of 18,000 hectares. The
witness showed the court sketch maps for the three sections.
He further testified that in
1996, the then Minister of Lands and Valuation, Hon. Shaibu Itimu visited the
farm. This was after he had been to the
headquarters of the ranch where he learnt that the farm had no title deed. He requested through management that Section
C be surrendered so that it could be given to the landless people. He further advised that a lease be applied
for. President Banda agreed and
surrendered Section C. Surveyors from
the Ministry carried out a survey of Sections A, B1 and B2. The cost was met by President Banda.
The witness then took the
court on a tour of all the sections including Sections C where the court was
able to see for itself the vegetation and some of the cattle and
facilities. At Section C, the witness
informed the court that although the land was taken in the name of the people
it had not been distributed to them.
Instead the trees had been wantonly cut down with the result that there
are fewer trees than in the other sections.
He was of the view that the people did not need the land because they
were in fact unable to fully utilize the land in their respective
villages. He showed the court some of
the idle land in Paiva, Chamanga and Jasi villages. The case was adjourned before the witness could complete his
testimony. He has since died.
He testified that he is the
traditional authority of the area in which the ranch is located. He further testified that in 1974/75 the
Chief's of Chikwawa and Nsanje donated gifts (including cattle) to the late
President D. H. K. Banda.
President Banda felt that
the people of the area could benefit if he left the cattle either in Chikwawa
or Nsanje and brought in better breeds from abroad so that the new breed could
cross breed with the local cattle. He
therefore asked the chiefs of the two districts to find him a piece of land
where the donated cattle could be kept.
The Chiefs searched for land in the two districts and eventually settled
for the land at Paiva Village. In
opting for this land they considered the fact that the land is generally not
arable and that it was not being used by the villagers. They further considered the fact that the
people of the area have adequate land.
In 1994 the late Minister
Itimu visited Chikwawa. He met the
witness as well as PW 1 and the Group Village Headman. The Minister said the land was too big and
proposed that Section C be excised and given to the people to cultivate. He further proposed that President Banda
apply for a lease of Sections A, B1 and B2.
Since the procedure for leasing land was that the village headman and
traditional authority should consent to the lease of customary land, he did so
in writing by signing the forms which were then forwarded to the District
Commissioner. Village headman Paiva
also consented and signed accordingly.
Section C was not included in the application for lease. Surveyors, one of whom was Jofilisi, went to
the area and carried out an aerial survey using a helicopter.
As Chief, he has not taken
away the land from President Banda. In
fact, according to the custom of the area land once given to a person cannot be
taken away. It is for the use of that
person and his family and can be inherited.
Section C is not being
cultivated. Inspite of Minister Itimu's
statement that it would be given to the people to cultivate, that has not
happened. Instead there has been serious deforestation. The trees have been cut down uncontrollably.
As traditional authority, he
does not wish to see what happened to Section C happen to Section A and B. The forest is useful to the people of the
area in that they are allowed to collect firewood and they are also able to
obtain poles for building houses. The
cutting of trees is controlled by the manager of the farm. Further, rain is not a problem in the area. This is because of the trees. Those who own cattle are also benefiting in
that their cattle cross breed with the cattle on the ranch.
As Group Village Headman,
several villages fall under his jurisdiction and these are Paiva, Gonyo,
Chamanga, Therere and Utumbe. His
testimony confirmed that of T/A Ngabu especially with regard to the meeting
President Banda held in the area in 1974/75 and his request for land to
accommodate the cattle given to him by the chiefs of Chiwawa and Nsanje. He further stated that the chiefs went to
Makhuwira on the East Bank but failed to find a suitable place. They then approached him with regard to the
land at Paiva village and he agreed because the soil was rocky and unsuitable
for farming. It was not used by
anyone. He further confirmed that the
people of the area benefit a lot from the ranch and do not wish to lose
it. The people of the surrounding
villages do not need extra land as they are failing to utilize what they have
to the fullest extent. He said Government encourages people to reforest the
land. It does not therefore make sense
for Government to take away the land from President Banda's estate when it is
clear that the result will be deforestation as is the case with Section C.
He is village headman
Paiva. His evidence collaborated that
of the other witness on how President Band set up the ranch in his
village. He confirmed that he consented
to a lease being issued to President Banda.
He had discussed the issue with T/A Ngabu and he knows that the
traditional authority also consented to the lease being issued. He was not consulted on the taking of
Sections A, B1 and B2. He would not in
any event have agreed because the land had already been given to President Banda. He has no objection to the lease being
granted to President Banda. He is aware
that Section C is not being cultivated and that the trees have been cut
wantonly.
He further confirmed that
people in his village are happy with the forest and the cattle. His subjects benefit from the ranch. He outlined the benefits. He further testified that Government
encourages them to plant more trees.
His village is lucky in that it has natural trees. He described the assertion that his subjects
need land as incorrect. There is plenty
of land in his area.
He is a brother to village
headman Chamanga. He is also a pastor
in the African Kingdom of God and Peoples Church of God. His village bounds the ranch. He is fully aware of the benefits that the
people in the surrounding areas derive from the ranch. When he heard that Government intended to
take over the ranch, he wrote to President Muluzi, the Ranch Manager and MCP
President calling on them not to close the ranch because people benefit from
it. He produced one of the letters he
wrote.
She has been village headman
for 10 years. She knows the ranch. It is near her village also. Her children eat from it. With the permission of the Ranch Manager,
they cut grass, collect and sell firewood.
Her subjects' cattle cross breed with the ranch's cattle. Consequently, they have better cattle. She said she had been sent by her people to
tell the court that the forest and the ranch should stay. She confirmed the state of Section C which
was surrendered by President Banda and said she is not happy with the way the
trees have been cut.
According the Mang'anja,
custom land once given cannot be taken away.
It should therefore not be taken away from President Banda.
6. ISSUES
Three issues stand to be
resolved in this case and these are:
a. Whether the late President Banda had
any constitutionally recognized right in the land called the Shire Valley
Cattle
Ranch.
b. Whether
Government, by demanding that late President Banda vacate the land was and
would be infringing any of the President Banda' rights guaranteed by the
constitution.
c. Whether late President Banda had or his
personal representative has a constitutional right or locus standi to challenge
Government action on matter relating to the environment and also whether his
personal representative can challenge Government's intended action under the
Environment Management Act.
. Issue Number 1
Whether President Banda had
constitutionally recognized right in the land called the Shire Valley Cattle
Ranch.
That the land is customary
land is not in dispute; neither is that
fact that it was given to President Banda.
Being customary land, no registration of title or grant of any interest
in land is required. (Ibik, Restatement
of African Law, Vol 4, p. 83).
It was the testimony of the
village headmen and the traditional authority of the area that land once given
is never taken back. Their evidence is
consistent with research and findings of one Ibik as recorded in his book
Restatement of African Law, Vol 4, p 82.
He observed that under Sena and Mang'anja customary land law, the power
to allocate lands rests and is exercisable by the chief. The village headman also has the power of
allocation unless expressly withheld from him by the Chief and it is lawful to
allocate to any person of whom the chief approved (Ibik p.82).
The nature and extent of the
interest conferred under an allocation depends on the express or implied
intention of the chief or village headman allocating the land in question and
for purposes of ascertaining the nature, duration and limitation of the interest
conferred, regard is had inter alia to:-
i The evidence of the witness present,
ii The
original request by the applicant,
iii Other relevant facts and surrounding
circumstances. (see Ibik, p 83).
The largest possible right
which a guarantee may possess and enjoy over the land is the right of
indefinite occupation and utilization.
It is capable of assignment and it is also heritable (Ibik, p 77). In the absence of evidence to the contrary
it will be assumed that this was the type of interest granted to Dr H. Kamuzu
Banda.
Anyone who occupies or uses
any piece of land is liable to forfeit his or her own interest in the land if
he or she is guilty of the following:-
i.
Witchcraft,
ii.
Purported
sale of land,
iii.
Habitual
theft, murder or quarrelsomeness,
iv.
Willful
waste and inexcusable neglect of the land for an unreasonable period,
v. Occupying and utilizing allocated land
without prior consent of permission the owner thereof,
vi Occupying and utilizing unallocated
land without prior approval of the Chief or Village Headman.
vii Alienating the land to a
non-assimilated stranger without the knowledge or approval of the Chief (Ibik,
pp 87-88).
President did not do
anything that as would have made him liable to forfeit his land. As his interest in the said land is
heritable, it can be passed on to heirs.
Under Sena customary land law, no land previously allocated, or in
actual use or occupation, is capable of re-allocation, unless such land has
been either forfeited or surrendered to the Chief (Ibik, p 79). As the land is in actual use and occupation,
and it has not been surrendered (except Section C); it cannot be taken away from the plaintiff.
On May 18, 1994 the current
constitution came into force. As of
that, President Banda was the lawful owner of the ranch. His right to the property was saved by Section 209 of the Constitution which
provides as follows;
"All persons who have rights in
property at the date of the commencement of this Constitution shall continue to
have such rights under this Constitution and any other law".
The
constitutional provision applies to all rights in property including rights of
property in customary land.
. Issue Number 2
Whether
Government, by demanding that President Banda vacate the land was and would be
infringing any of President Banda's rights guaranteed by the Constitution.
Expropriation of Property and Customary Land
The reason given for
rejecting the application for lease is that the traditional leaders who live in
the surrounding villages had informed Government that they required for their
own use. As pointed out the evidence
does not support this assertion. Even
if that were the case, it should have been the traditional leaders themselves making
the demand from the late President Banda.
Again the evidence given is that land once given cannot be taken back.
Assuming that Government
being aware of the fact that the traditional leaders could not take back the
land had decided to assist them, the Government should have complied with the
supreme law of the land.
Section 44(4) of the
constitution provides that expropriation of property shall be permissible only
when done for public utility and only when there has been adequate
notification and appropriate compensation, provided that there shall always be a
right to appeal to a court of law.
In law, property is that
which is peculiar or proper to any person; that which belongs exclusively to
one. The word denotes everything which
is the subject of ownership. Property
is classified into either real or immovable; or personal or movable (see Black's
Law Dictionary 5th edition).
This means that even those holding beneficial or equitable rights or
property in customary land are, under the constitution, equally entitled to adequate
notice and appropriate compensation in terms of Section 44 of the
Constitution.
The expulsion of the
plaintiff from the land without due compensation would be tantamount to a
breach of Section 44(4) of the Constitution and a violation of his right not to
arbitrarily deprived of property as enshrined in Section 28(2) of the Constitution.
The Land Act also provides
for situations when the Government may expropriate property. Section 27(1) of the Land Act provides as
follows:-
i.
"Wherever
it appears to the Minister that any customary land is needed for a public
purpose, that is to say a purpose which is for the benefit direct or
indirect, of the community as a whole, or part of the community, he may declare
by
notice published in the Gazette, that such land is public land, and
thereupon such land become public land".
In this case, the Minister
neither made a declaration nor did he publish a notice in the Gazette even
though the land is said to be required for a purpose beneficial to part of the
community. One can only surmise that
the reason for not wanting to comply with the legal requirements was to evade
payment of compensation for Section 28(b) of the Land Act it is
provided that:-
ii "any persons who by reason
of…………any declaration made under Section 27(1) that and such land is public
land ……….suffers any disturbance of or loss of damage to any interest which he
may have or, immediately prior to the [declaration] may have had in such land,
shall be paid such compensation for such disturbance, loss or damage as shall be reasonable".
Similarly,
under the Land Acquisition Act (Cap
58:04) of the Laws of Malawi, the Minister is empowered to acquire any land
whenever he is of the opinion that it is desirable in the interests of Malawi so to
do, paying such compensation therefore as may be or determined under the
Act (Section 3 of the Act).
The Land
Acquisition Act applies to "any land" including customary land. This means that it is desirable or expedient
compulsorily to acquire any land under the Act, he shall serve notice upon the
persons who are possessed of an interest in the land or upon such of those
persons as are after reasonable inquiry known to him.
It is clear
that the Minister did not comply with any of the three statutes. If President Banda's land is to be taken
away he is entitled to adequate notice and appropriate compensation, he is
entitled to no less. This is his
constitutionally and statutorily guaranteed right. To proceed in a manner other than the law demands and insists
would be tantamount to an infringement of his rights which are expressly
guaranteed under the constitution.
The
Constitution and Customary Land
Section 28 of the Constitution provides that every person
shall be able to acquire property alone or in association with others and
further that not person shall be arbitrarily deprived of property.
It is clear that the provision does not aim
to protect only those who hold legal and equitable titles to property. It is therefore equally protective of any
kind of title to property be it legal or equitable. Consequently, any person holding any of the incidents of property
discussed above is equally protected by the constitution. It should be noted further that the
provision does not dictate where the property should be acquired and so a
holder of customary land is within the ambit of its application and protection.
In the case at hand, the plaintiff's rights
over the piece of land called Shire Valley Ranch are protected by the
constitution and he cannot be arbitrarily deprived of them by the Minister's
exercise of his duty under Section 26 of the Land Act.
Further, under Section 29 of the Constitution every
person is guaranteed the right to freely engage in economic activity, to work
and pursue a livelihood anywhere in Malawi. It goes without saying that anywhere means
any place within the boundaries of Malawi including customary land and more
specifically at Paiva village. The
right of Dr Banda guaranteed and protected by the constitution, should not be
limited by the Minister's exercise of his powers of control and administration
under Section 26 of the Land Act.
7. CONCLUSION
The defendant's defence erroneously assumes
that Dr H. Kamuzu Banda is not Malawian by pleading that he did not any time
have title to the subject land but that property was at all material times the
lawful and undoubted property of the people of Malawi. See paragraphs 1 and 2 of the Amended
Defence). It does not take much wit to see that
the argument is fallacious. Dr H.
Kamuzu Banda was Malawian and is the lawful and undoubted owner of the Shire
Valley Ranch and therefore cannot trespass on his own land as paragraph
of the Amended Defence suggests.
Section 25 of the Land Act clearly provides that customary land
is vested in the President for the purposes of that Act alone. The land does not belong to the
President. It is assumed to be vested
in him for the purposes of the Land Act only.
Dr H. Kamuzu Banda definitely has rights in
the subject land that are constitutionally guaranteed and protected. It would therefore, be an infringement of
those rights if Government was to evict Dr H. Kamuzu Banda from the land
without giving him due compensation on the pretext that the Minister merely was
doing his duty under the Land Act. As
the Constitution is supreme law, all other laws are subject to it. Therefore, the provisions relating to
expropriation of property as detailed under the Constitution should be strictly
adhered to.
As Dr H. Kamuzu's rights and title to the
land have been established, the kind of relief prayed for in paragraph
14 of the Amended Statement of Claim is only right and proper. To proceed in any other manner other than
that prayed for would constitute derogation from rights guaranteed by our
constitution; Section 45 of the
constitution clearly provided that there will be no derogation from these
rights unless there has been a declaration of a state of emergency. No such declaration has been made and
therefore, it is hereby declared that provisions relating to expropriation of
land as detailed in the constitution should be followed.
In these premises, Government should cease
and desist from interfering with Dr H. Kamuzu Banda's constitutionally
protected rights.
. Issue Number 3
Whether late President Banda had or his personal representative has
locus standi to challenge Government's action of the Constitution as well as
under the Environment Management Act.
i.
Background
The ranch is a haven for
natural trees and grasses and is also a habitat for several species of wild
animals. Its uniqueness lies in the
fact that it has maintained its natural beauty when all land surrounding it has
become bare due to deforestation.
A visit to the ranch
revealed that there was another aspect of the case, which had not been
explored: the issue of environmental
degradation. This facet of the case
became apparent due to the obvious destruction of trees and natural grasses in
Section C of the ranch which had been given away by the plaintiff in 1996 and
which Government had not bothered to distribute despite its insistence that
there were landless people around the ranch.
It is a the well-founded
fear amongst the people of the area and the plaintiff that the whole ranch is
going to go the same way that Section C has gone. A fear that its striking natural beauty would be lost if the action
of executive arm of Government went unchecked.
ii The
Law
Research by scientists
reveals the potential for changes so dramatic in the next century that life, as
we know it may no longer exist.
Fortunately, as a result of growing awareness and on going scientific
research, public policy makers and legislators are enacting laws and working
cooperatively to alter human behaviour in ways that could stem the tide of
environmental degradation and consequently achieve a sustainable society. Malawi has not lagged behind in this regard.
One of the primary goals of
environment laws is to preserve some of our nation's remaining wilderness and
waters in their natural state. To this
end our constitution recognizes the protection of the environment as a
significant issue and hence includes environmental protection and the promotion
of sustainable use of natural resources as some of the principles of national
policy (see Section 13(d) of the Constitution). The constitution also empowers courts to have regard to such
principles of national policy in determining the validity of decisions of the
executive (Section 14 of the Constitution).
The Environment Management
Act has taken a step further from the directory provisions of the constitution
by offering substantive Environment Law.
It makes it a the duty of every person to take all necessary
and appropriate measures to protect and manage the environment and to conserve
natural resources to promote sustainable utilization of natural resources in
accordance with the Act and any other written law {Section 3(1) of the
Environmental Management Act}. It also
gives every person the right to a clean and healthy environment {Section
5(1)}. For purposes of
enforcing that right it gives the right to any person to bring an action in the
High Court to prevent or stop any act or omission which is deleterious or
injurious to any segment of the environment or likely to accelerate
unsustainable depletion of resources or to require that an ongoing project or
other activity be subject to an environmental audit in accordance with the Act
{Section
5(2)}.
In recognition of the
pressing need to preserve the environment, the Environmental Management Act has
given locus standi to 'any person' to bring suits to enforce
the right to a clean and healthy environment, which right is, of course, also
not localized. In a nutshell, the Environmental
Management Act departs from orthodox requirements for locus standi and
gives any person the right to involve himself or herself in environmental
litigation. Needless to say, then, that
President Banda or his personal representative has a right to bring an action
in the High Court, as he has done, to enforce the right to a clean healthy
environment.
It cannot be disputed that
the intended Government action is deleterious and injurious to the environment
and that it is likely to accelerate unsustainable depletion of natural
resources. The wanton destruction of trees
and other vegetation is Section C of the ranch bears this truth. When the late President was in occupation of
Section C, the trees and wildlife there were used at sustainable level and in
an environmentally friendly manner. The
moment he moved out, people started cutting down the trees and grass
wantonly. It is obvious that if the
plaintiff is evicted from the rest of the ranch, a similar scenario will happen
in the other sections of the ranch.
The Act makes clear that it
is the duty of every person (including Government) and their servants and
agents to make all necessary and appropriate measures to protect and manage the
environment {Section 3(1)}. In the
words of judge Skelly Wright in Calvert Cliffs Coordinating Committee v.
U.S. Atomic Energy Commission 449 F. 2d 1109 (1971)
"Several recently enacted Statutes attest to the commitment of
Government to control, at long last, the destructive engine of material
"progress". But it remains to
be seen whether its promise of this legislation will become a reality. Therein lies the judicial role………… Our duty, in short, is to see that important
legislative purpose heralded in the hallways of the federal bureaucracy".
I hold the
view that the action contemplated by Government to evict Dr H. Kamuzu Banda
from the ranch will open up the ranch to environmental degradation and
unsustainable utilization of the resources therein. Such action will constitute an undisguised dereliction from the
important duty imposed by the Constitution and underlined by the Environment
Management Act.
It is the duty of the court
to see to it that important legislative purposes heralded in Parliament are not
lost or misdirected by executive action.
8. CONCLUSION
The Government and its agents are
constitutionally bound to protect environment from deleterious action. This obligation is given substantive weight
by the Environmental Management Act. By
allowing the Shire Valley Cattle Ranch to fall prey to deforesters, Government
would be unashamedly derogating from its duty under both the Constitution and
the Environmental Management Act. The
plaintiff is therefore entitled to an injunction as pleaded in the Amended Statement
of Claim in paragraphs 14(a) and (b).
OBITER
The refusal by the Minster to process the
lease application of Dr Banda is denying the people of Malawi the much needed
revenue which would have been generated from annual ground rent. It is an axiomatic fact that if a lease were
granted to Dr Banda the status of the land could have changed from customary
land tenure to private land, hence attract ground rentals.
The defendant
is also condemned to pay costs of and incidental to these proceedings.
PRONOUNCED in open court at Blantyre this 11th day of January
2004.
Chimasula Phiri
JUDGE