IN THE MALAWI SUPREME COURT OF APPEAL
AT BLANTYRE
MSCA CIVIL APPEAL NO. 14 OF 2004
(Being High Court Constitutional Case No. 5 of
2004)
BETWEEN
THE MALAWI ELECTORAL COMMISSION . 1ST APPELLANT
- and -
THE UNITED DEMOCRATIC FRONT . ..2ND APPELLANT
- and -
THE ATTORNEY GENERAL ...3RD APPELLANT
- and -
THE REPUBLICAN PARTY ..RESPONDENT
BEFORE:
THE HONOURABLE THE CHIEF JUSTICE
THE HONOURABLE MR JUSTICE TAMBALA, JA
THE HONOURABLE JUSTICE MSOSA, JA
THE HONOURABLE MR JUSTICE MTAMBO, JA
THE HONOURABLE MR JUSTICE TEMBO, JA
Kaphale, Counsel for the
Appellants
Matenje, Solicitor General, for the Attorney
General
Pacharo Kayira, Principal
State Advocate, for the Attorney General
Charles
Mhango/Chibambo/Nkhono, Counsel for the Respondent
Chingota (Mrs)/Chiume (Mrs),
Court Reporters
Mchacha, Official
Interpreter
Kunje (Mrs), Recording Officer
J U D G M E N T
Unyolo,
CJ
As we indicated yesterday at the conclusion of hearing submissions made by learned Counsel on both sides, it was not possible for us to write and come up with a full and carefully reasoned judgment overnight. We said that we would today simply give a brief outline of the judgment. We took the view that this approach was in the interests of the parties and may be several other concerned persons as well that must be anxiously awaiting the outcome in this case. We will therefore write our formal judgment later.
The material facts of the case are as follows. By an expedited Originating Summons returnable on 12th May 2004, the Respondent, namely, the Republican Party, a political party representing its members and all members of what is known as the Mgwirizano Coalition Grouping, sought the determination of the Court below on divers questions pertaining to the forthcoming General Elections, namely:
1)
Whether the 1st Defendant was correct in referring the issue
of deployment by UDF of Government resources to the Office of the President,
instead of the 1st Defendant taking steps to stop such deployment of
public resources for campaigning purposes.
2)
Whether or not the figure of 6,671,816 registered voters is probable and
attainable for 2004 General Election, regard being had to Malawis population
projection figures reported by the NSO.
3)
Whether the period of verification from 26th to
30th April 2004 satisfied the requirement for the purpose of
verifying Voters Roll for all the polling centres throughout the
country.
4)
Whether the period after verification has not abridged the requirement
that there should be 21 days from closure of the verification process to the
first polling date, and if so whether the abridgement process of the 21 days is
not unlawful.
5)
Whether MECs decision in effecting such abridgement has not affected the
rights of the Plaintiffs and other stakeholders in view of the order of the
Court in Miscellaneous Civil Application No. 28 of 1999 between Gwanda Chakuamba
vs The 1st Defendant.
6)
Whether the decision by the MEC to designate monitors for independent
candidates does not justify designation of additional monitors for every
presidential candidate, on each Polling Centre.
7)
Whether the election would be free and fair without first addressing and
correcting the irregularities complained of before going to the
poll.
8) Whether recent admission by the Chief Executive Officer (Roosevelt Gondwe) that the Voters Roll figure appears to be on the high side, and is likely to be reduced after a clean-up process, does not demonstrate inefficiency and serious flaws in the electoral process.
The Respondent went on to ask the Court, by way of reliefs, to give such orders, declarations and directions as the Court would consider just and expedient in the circumstances of the case, including:
(i) an order
that the 1st Defendants decision to fix time for inspection and
verification for the period from 26th to 30th April 2004
has adversely affected the rights of the Plaintiff and other stakeholders to
inspect the voters register within 21 days from the date before the polling
day;
(ii) the
abridgement of the 21 days from the end of the verification to the polling day
occasioned by the 1st Defendant in consideration of S21 PPEA is
unlawful;
(iii)
that
the 1st Defendant has failed to discharge its constitutional duty
imposed by section 76(2)(d) of the Malawi Constitution, in that, it has failed
to comply with statutory provision of section 29 and section 31 of PPEA as read
with Section 8(i)(m) of the enabling Act;
(iv)
an
order that adequate time for verifying the Voters Roll be accorded to enable the
Plaintiffs exercise their rights to fully and completely verify the Voters
Rolls;
(v)
an
order requiring the 1st Defendant to justify the figure of 6,671,816
for Registered Voters;
(vi)
an
order that time for presenting names and particulars of monitors to man the
presidential candidates voting at each polling centre be
designated;
(vii)
a
declaration that the MEC has failed to take measures and to do such other things
as are necessary for conducting free and fair elections.
(viii)
The
2nd and 3rd Defendants be ordered not to deploy Government
financial, material or human resources for promoting its interest or undermining
the Plaintiff during this campaign period.
After hearing Counsel in argument, the Court below
found, as regards the 1st Appellant, the Malawi Electoral Commission
that is, that it, the said Malawi Electoral Commission, had erred and abdicated
its constitutional and statutory duty in referring the complaint made to it by
the Respondent relating to alleged abuse of public resources by the President
and the United Democratic Front (UDF) to the Office of the President and
Cabinet.
The lower Court further found that the verification process put in place
by the 1st Appellant fell short of the statutory period prescribed
for the purpose. The lower Court
also found that the forthcoming General Elections would not be free and
fair.
The lower Court then ordered a re-commencement of the verification
process and that the date for conducting the polls be shifted forward by not
more than seven days.
Further, the lower Court ordered that
all excess ballot papers in the possession and custody of the 1st
Appellant should be counted manually and deposited in a warehouse which should
be under the control of the High Court.
The keys of such warehouse were to be kept by the Registrar of the High
Court, who was directed to procure an additional locking mechanism for the
warehouse and to have it sealed.
The 2nd Defendant, the United Democratic Front (UDF) did not
contest the proceedings and a judgment on admission was entered against it, with
costs.
Finally, the lower Court found that the 2nd Appellant, namely,
the Attorney General, was properly joined as a party to this case, in that he
wrongly accepted the referral made by the 1st Appellant on an issue
he had no jurisdiction or mandate to handle.
The Appellants appealed to this Court against these findings and
orders. The 1st
Appellant filed eight grounds of appeal.
The 2nd Appellant filed four.
In the course of hearing the appeal yesterday, learned Counsel for the
1st Appellant withdrew six of the grounds of appeal and only argued
two. The six grounds of appeal
withdrawn related to the order the lower Court made concerning the shifting of
polling date and the orders ancillary thereto. Observably, it was considered not
necessary to pursue the appeal on those matters since the 1st
Appellant had already acted on the order and shifted the polling date from the
original date of 18th May 2004 to 20th May
2004.
For his part, the Solicitor General, representing the 2nd
Appellant, withdrew the appeal by the 2nd Appellant wholly. The learned Solicitor General said he
had instructions from the 2nd Appellant to withdraw the appeal
because none of the orders made by the lower Court materially affected it
negatively.
We have considered fully and carefully the submissions learned Counsel
made and the various affidavits and documents they referred to in their
arguments.
The first issue is a procedural one. Mr Kaphale, learned Counsel for the
1st Appellant, pointed out that nowhere in the Originating Summons
did the Respondent raise the issue of extra ballot papers, or the relief given
by the lower Court that the 1st Appellant should surrender or
transfer the excess ballot papers to a third party. Learned Counsel pointed out that these
matters were raised for the first time only during submissions and that he duly
objected to these coming in without the Originating Summons being first
amended. Mr Kaphale drew the
attention of the Court that Mr Mhango, learned Counsel for the Respondent, in
his submissions did not dispute this fact.
It is trite, and there is a wealth of authorities, that the issues for
the determination of the court should be stated clearly and expressly in the
originating summons, so too the reliefs sought. The reason for this is to inform the
other side in advance of the nature of the case it has to meet and to prevent
the other side being taken by surprise at the hearing. Cases are decided on issues on
record.
In making its decision on this point, the lower Court appears to have
relied on sections 103(2) and 108(1) of the Constitution, which set out the
jurisdiction of the Courts. Section
103(2) provides that the Judiciary shall have jurisdiction over all issues of a
judicial nature and shall have exclusive authority to decide whether an issue is
within its competence. Section
108(1) provides that the High Court shall have unlimited original jurisdiction
to hear and determine any civil or criminal proceedings under any
law.
With the greatest respect, these two
sections, in our considered view, do not detract from the requirement that a
party must state expressly the issues it seeks to raise and the specific reliefs
sought.
We wish to go further and say on this aspect that the Court must confine Counsels arguments and submissions to those issues and reliefs as are particularised in the Originating Summons. The Court itself is as much bound by the issues on record as the parties are.
The finding of this Court, on the record of the lower Court, is that the
Originating Summons does not contain, as an issue or question, what must be done
with the excess ballot papers. The
Originating Summons also does not contain, as a relief prayed for, that the
ballot papers must be manually counted and the excess lodged in the custody of
the Registrar or any other third party.
It is also to be noted, and this is a worrisome point, that at the time
the lower Court made the order regarding the excess ballot papers, it did not
address itself to the practicability of the order being capable of
enforcement. There were issues that
had to be considered seriously, such as -
(a) the locality of the ballot papers at the material time;
(b)
whether
it was safe to open the boxes containing the ballot papers and remove the excess
ballot papers and ensure the safety and security of the
rest;
(c)
the
expense of moving the excess ballot papers from wherever they were, all over the
country, to sone particular place or places;
(d)
the
capacity of the Registrar of the High Court to handle the assignment given and
to ensure the security of the excess ballot papers;
(e)
the
difficulty of conducting a manual count at various places in the whole
country; and
(f)
The cost
involved in the whole exercise, just to mention some.
Indeed, regard had also to be had to
the closeness of time between the time the order was made, namely, on
14th May 2004, to the polling date on 18th May
2004.
We would also wish to mention that we are unable to join in the view taken by the lower Court that the storage of the ballot papers is a judicial issue for the Court. In our view, the Court has no legal mandate to keep the ballot papers. Further, we doubt the propriety of such an order without considering the interests of the other many stakeholders and interested persons or bodies involved in the electoral process.
We are also constrained to mention that in view of the ballot auditing
system that the 1st Appellant has put in place, we do not think that
there should be any genuine fear that the excess ballot papers, if left in the
custody of the 1st Appellant, would be abused or misused. The involvement of monitors and
observers, both local and external, in the electoral process would minimise the
risk of abuse or fraud.
For the foregoing reasons, we are unable to uphold the order made by the
Court below on this aspect relating, that is, to the transfer of the excess
ballot papers to the Registrar of the High Court. The Court below erred in making the
order herein. The appeal on this
aspect therefore succeeds and the order herein is quashed.
We now turn to the remaining second ground of appeal. The thrust of the arguments on this
aspect was that the 1st Appellant abdicated its responsibility when
it referred the complaint it had received from the Respondent to the Office of
the President and Cabinet (OPC).
Observably, it is not disputed that this was what the 1st
Appellant did upon receipt of the complaint made by the Respondent in this
respect.
It is noted that the mandate of the 1st Appellant, both under
section 76 of the Constitution and section 113 of the Parliamentary and
Presidential Elections Act, is very clear. Under section 76(1) of the
Constitution, the 1st Appellant is charged with the responsibility
to determine the electoral petitions and complaints related to the conduct of
any elections. And under
section 113 of the Act, the Commission is required to examine and decide on
complaints alleging irregularity if not resolved at a lower level of
authority and that where the irregularity is confirmed, the 1st
Appellant must take appropriate action.
Referring to the present case, when the 1st Appellant received
the complaint that was made by the Respondent concerning the alleged use of
public resources, the 1st Appellant had both a constitutional and
statutory duty and obligation to itself examine and determine the
complaint. This was a serious
complaint. Indeed, Mr Kaphale,
learned Counsel for the 1st Appellant, conceded that use of public
resources for campaign purposes is wrong.
The 1st Appellant was clearly under a duty to deal with the
complaint. The complaint had
nothing to do with the Office of the President and Cabinet. It is also to be observed that the
parties were well-known. The
1st Appellant could have easily called the parties and heard
them. If any further or better
particulars regarding the complaint were necessary, such a hearing would have
provided an opportunity for such further and better particulars to be
given. Indeed, we think that
reasonably sufficient particulars had been furnished to enable the
1st Appellant to deal with the complaint.
To cut a long story short, we find that the 1st Appellant
erred in referring the complaint on this aspect to the Office of the President
and Cabinet, instead of dealing with it itself as required both under the
Constitution and statutory law.
For the foregoing reasons, we uphold the decision of the lower Court that
the 1st Appellant abdicated its duty both under the Constitution and
statute. The appeal on this aspect
is accordingly disallowed.
The question of costs is reserved.
We will deal with it in the formal judgment.
PRONOUNCED in Open Court
this 18th day of May 2004, at Blantyre.
Sgd
L E UNYOLO, CJ
Sgd
D G TAMBALA, JA
Sgd
A S E MSOSA, JA
Sgd
I J MTAMBO, JA
Sgd
A K TEMBO, JA