IN THE HIGH COURT OF MALAWI
PRINCIPAL REGISTRY
CIVIL CAUSE NO. 1861 OF 2003
BETWEEN:
THE
REGISTERED TRUSTEES OF THE
PUBLIC AFFAIRS
COMMITTEE.....................................PLAINTIFF
and
THE ATTORNEY
GENERAL...............................1ST DEFENDANT
and
THE SPEAKER
OF THE
NATIONAL
ASSEMBLY.........................................2ND DEFENDANT
THE
MALAWI HUMAN RIGHTS
COMMISSION....................................................AMICUS
CURIAE
CORAM: HON. JUSTICE
A.C. CHIPETA
Kasambala, of Counsel for the Plaintiff
Ngwira, of Counsel for the Plaintiff
Fachi, S.C., Attorney General, for Defendants
Matenje, Solicitor General, for the Defendants
Nyirenda, Assistant Chief Parliamentary Draftsman,
for the Defendants
Tembenu, of Counsel for the Amicus Curiae
Kapindu, of Counsel for the Amicus Curiae
Mankhanamba, Official Interpreter
RULING
This action has been commenced by the Registered Trustees
of the Public Affairs Committee. There are two defendants to it. These are the Attorney General and the
Speaker of the National Assembly. In
addition to these parties to the case there is also, however, one other
party. This is the Malawi Human Rights
Commission which only joined the case on 1st September, 2003 as a friend of the
Court, otherwise technically known as Amicus Curiae. All three parties
are legally represented in this Court.
Although the matter was, by virtue of the Consent Order
for Directions issued on 1st September, 2003, heard in open Court, with the
consequence now that its ruling is also being pronounced in open Court, in
reality it is an action that was begun by an Originating Summons. Now whereas ordinarily a study of Orders 7
and 28 of the Rules of Supreme Court will show that Originating Summonses are
heard and determined in Chambers, it has to be appreciated that under Order 28
rule
9(1),
when such type of case is ready for determination, the Court has power to “make
such order as to the hearing of the cause or matter as may be appropriate.”
Indeed as will be further noted, Order 28 rule 9(3) of the
same rules goes on to mandate the Court to by order “determine the place and mode
of the trial” (my emphasis) and even to then leave it open to the said Court to
vary any such order by a subsequent
order “made at or before the trial.” It
is therefore quite legitimate that this matter has proceeded in open Court, as
per the Order for Directions reached by consensus of the parties, just as it
would have been had it otherwise proceeded in Chambers had the parties not agreed
otherwise.
I should at this juncture, in passing, mention that
initially when filed the Originating Summons herein bore two points of concern
to the plaintiff on which the said plaintiff wished this Court to issue
declaratory orders. On 10th September,
2003, however, when the matter was called for hearing, the plaintiff duly
dropped one of these two points. It is a
point which related to the hitherto abolished Senate under the Constitution of
the Republic of Malawi and to the perceived impact of the absence of that body
in Parliament vis-a-vis legislation the plaintiff is now querrying in
this action. The prayer in question,
however, having been withdrawn, I propose to make no more reference to it in
the balance of this ruling.
An immediate display of the factual setting from which the
current case arises will, I believe, help depict the case in its correct
context. The current Constitution of the
Republic of Malawi, according to Section 212 thereof, provisionally came into
force on 18th May, 1994. Subject to the education and consultations, proposals
for amendment or repeal and replacement, and to the bills for amendment or
repeal and replacement that might have resulted from such proposals as were
sanctioned during the period of provisional application, by Sub-Sections (2) to
(9) of Section 212 aforesaid, this Constitution definitely came into force at
the expiry of exactly twelve months from the date of provisional commencement.
Among the provisions in the Constitution that survived
this one year “probation period” of relatively easy amendment and/or repeal and
replacement before becoming definite was Section 65 which is on the subject of
crossing the floor in the National Assembly.
In its Sub-Section (1) this provision allowed the Speaker of the
National Assembly to declare vacant the seat of any Member of that assembly,
if, on election, he was a member of a political party represented in that
Assembly upon his voluntarily ceasing to be a member of that party and joining
another political party also represented in the same Assembly.
In the year 2001 under the Constitution (Amendment) (No.
2) Act of that year, the same being Act No. 8 of 2001, herein exhibited as
“KKN4” to the first affidavit in opposition, Section 65 above-referred was amended. It now reads:-
“65(1)
The Speaker shall declare vacant the seat of any Member of the national
Assembly who was, at the time of his or her election, a member of political
party represented in the National Assembly, other than by that member alone but
who has voluntarily ceased to be a member of that party or has joined
another political party represented in the National Assembly or has joined any
other political party or association or organization whose objectives or
activities are political in nature.”(my emphasis)
As must be apparent the amendment loosens and alters the
concept of crossing the floor as originally provided in that apart from extending the floor that can be
crossed to outside the National Assembly, it also dispenses with the need to
understand crossing the floor as a combination of both voluntarily ceasing to
be a member of one political party and joining another political party, both
being represented in the National Assembly.
The present action has been instituted on basis of the
amendment just depicted above. On 11th July, 2003 the plaintiff took out an
Originating Summons complaining that Section 65, as amended, is
unconstitutional and invalid and calling on this Court to so declare the said
amendment unconstitutional and invalid.
By the affidavit filed in support, sworn by its Board Member Aloisio
Nthenda, the plaintiff laments that the provision as amended purports to
abridge the fundamental freedoms of association, of expression, of opinion, and
that it also abridges political rights as enshrined under Section 40 of the
Constitution and that it does so without there having been held a referendum as
required by Sections 196 and 197 of the Constitution. The deponent also alleges that the amendment
violates the Constitutional principles embodied in Section 12 of the
Constitution and that it was not effected in
the
interest of Malawians in that, on the whole, it fundamentally jeopardizes
constitutionalism by eroding the rights of the people and the constitutional
principles this Nation believes in.
Following service of the originating process, the
defendants on 13th August, 2003 filed a response to the Originating Summons
accompanied by an affidavit in opposition with four exhibits. They later, on 22nd August, 2003, followed
this up with a supplementary affidavit, itself carrying two more exhibits. Both the affidavits filed on behalf of the
defendants were sworn by Assistant Chief Parliamentary Draftsman Kenyatta
Nyirenda, of Counsel.
From what all these documents portray the defendants are
basically fighting the action of the plaintiff from two distinct angles. A point they initially wanted to raise as a
preliminary objection to the commencement of the hearing, but which they later decided
to incorporate in their general arguments during the substantial hearing of the
Originating Summons herein, is one concerning the locus standi of the
plaintiff in this matter.
They claim that the plaintiff does not have a sufficient
interest in the matter to entitle it to bring up this action. Through exhibits “KKN5” and “KKN6”, being
respectively the Constitution of the Public Affairs Committee and its
Certificate of Incorporation, the defendants argue, especially under their
supplementary affidavit, that the plaintiff, not being a political party within
or outside the National Assembly, also not being (so they allege) an
association or organization with objectives that are political in nature, and
that none (so it is alleged) of the registered trustees of the plaintiff being
a Member of Parliament or a party to this case, it therefore has no interest
over and above that of any other member of the public and that as such it does
not have sufficient interest to bring these proceedings.
Next, in case the Court finds that the plaintiff has locus
standi in the matter, the defendants have completely denied, through
their first affidavit in opposition and through their response to the
Originating Summons, the allegation that Section 65 as amended is
unconstitutional and invalid. They claim
that this amendment was properly passed in line with Section 196 of the
Constitution (although they probably meant S197) and that it therefore properly
became law. It was thus the prayer of
the two defendants herein that the plaintiff’s Originating Summons should just
be dismissed with costs.
It will be prudent in this matter, I think, to first
attend to the question of the plaintiff’s standing, alias locus standi,
in it. This is so because presence of
standing means that I can proceed to examine the merits and demerits of the
Originating Summons taken out by the plaintiff, while absence of standing means
the automatic end of this case upon my so holding. It would thus be futile to go into a debate
of all the merits and demerits of the action herein when it may well be that
the case does not even pass the first hurdle of standing. I will therefore proceed to examine the
parties’ arguments on this basic question and either terminate the case at this
point or proceed to determine it on the merits depending on what I find to be
the plaintiff’s position vis-a-vis locus standi.
The arguments of the defendants on the subject of locus
standi were in the main advanced by the learned Solicitor General, Mr
Matenje. He began by recognizing the
existence of two approaches to this question, to wit, what he called the
restrictive approach and the wider approach.
In the final analysis it was his submission on behalf of the defendants
that on either premise the plaintiff herein has no locus standi to bring
up the present proceedings.
Starting with arguments on the restrictive approach, it
was contended on behalf of the defendants that the Constitution of the Republic
of Malawi in this case, expressly provides the relevant tests for identifying
who can and who cannot institute proceedings for breaches of the Constitution
or proceedings to challenge any of the provisions in the Constitution. It was the Solicitor General’s argument that locus
standi being a jurisdictional issue as recognized in The Attorney
General vs Malawi Congress Party, L.J. Chimango, MP, and Dr.
H.M. Ntaba MP. (alias The
Press Trust Case)
M.S.C.A.
Civil Appeal No. 22 of 1996, this Court has no jurisdiction to hear a person
who does not have sufficient interest in an action he has brought to the Court.
The first point taken by the defendants was that in terms
of the Supreme Court’s observation regarding the value of pleadings and the
need for the parties to strictly adhere to them, per Fred Nseula vs Attorney
General and Malawi Congress Party MSCA Civil Appeal No. 32 of 1997, the way
the plaintiff has presented its complaint in the Originating Summons against
the amendment of Section 65 does not clearly indicate the unconstitutionality
of Act of No. 8 of 2001 is being pleaded.
It was thus argued that the plaintiff should on this point be confined
to its pleadings.
Next it was contended on behalf of the defendants that the
plaintiff has no interest in the Section whose amendment it is complaining
against. The Section, it was argued, has
no general application but specifically applies to Members of Parliament who
have crossed the floor. An aggrieved
Member of Parliament, it was said, is entitled to seek redress directly from
the Court. It was thus argued that the
plaintiff has no authority to institute any proceedings concerning Section
65(1) whether directly or in a representative capacity. Reference in this regard was
made t o the decision of the
High Court of
St
Vincent and the Grenadines in Richards and Walker vs Governor General and
Attorney General reported in The Commonwealth Law Bulletin, Vol. 16, No. 2,
April 1990 at pp 446-448, where relative to their Section 96(5) of the
Constitution the Court found that the plaintiffs who were registered voters and
tax payers did not have “relevant interest” to commence the case they
instituted.
The defendants hereafter made further reference to local
cases on the subject of locus standi.
The first authority cited in this line was the case of United
Democratic Front vs The Attorney General Civ. Cause No. 11 of 1994
(unreported). The late Hon. Justice
Chatsika (as he then was) in that case held that the plaintiff having failed to
show that it had a legal right or a substantive interest in the subject it was
suing on had no locus standi to bring up the suit. It was however conceded by the defendants
that the case in question, having been decided on 5th May, 1994, it was
accordingly decided before the current Constitution had come into force.This
notwithstanding, it was argued that since then, however, the authority has been
cited with approval in two unanimous Supreme Court decisions, to wit, in The
President of Malawi and Speaker of National Assembly vs R.B. Kachere and Others
M.S.C.A. Civil Appeal No. 20 of 1996 (alias The Concerned Citizens Case
decided on 20th November, 1995 and The Press Trust Case (earlier cited)
decided on 31st January, 1997. Indeed
these two decisions echoed what late Hon. Justice Chatsika held by interpreting
“ sufficient interest” to be a personal interest over and above that of
every other citizen.
These latter decisions, it was argued, being decisions of
the Malawian Supreme Court of Appeal, the highest Court in the land, have
binding effect on this Court. I was thus
urged to follow the above decisions of the Supreme Court on point of locus
standi unless I can distinguish the present case from them. Calling in aid at this point the case of St
Kitts and Nevis,
Attorney
General vs Lawrence, party relied on by the Supreme
Court in the Press Trust Case, the defendants argued that no one whose
rights are not directly affected by a law can raise the question of the
constitutionality of that law.
In this case the defendant’s contention was that there is
no evidence to show that the rights and freedoms of the plaintiff have at all
suffered as a result of the amendment of Section 65(1) of the Constitution and
that as such the plaintiff has not shown that its interest is over and above
that of every one else for it to qualify to sue. It was further contended that there is no
evidence to show that the plaintiff is acting on behalf of the people of Malawi
or in the public interest. It was
at
this point argued that a person cannot act on behalf of another unless he or
she has authority to do so, be it under the law or directly from that other
person.
With reference to Sections 15(2) and 46(2) of the
Constitution, which have a direct bearing on locus standi, it was
submitted that the plaintiff has not shown that any of its rights has been
infringed and that it can therefore not be held to have locus standi in
the case it has commenced.
As regards the wider approach to the question of locus
standi, it was argued that some jurisdictions e.g. South Africa, have
only adopted it for the effective enforcement of their Bills of Rights and nothing more. In this regard Section 38 of the South
African Constitution was quoted as clearly itemizing persons who have locus
standi before the Courts on those issues.
It was argued that in Malawi the Supreme Court of Appeal has adopted the
restrictive approach taken by the Common Law and that in contrast with the
South African scenario Sections 15(2) and 46(2) of our Constitution do not
expand the categories of persons who have locus standi on issues of
fundamental rights and freedoms, let alone on provisions like S65(1) which fall
out of that category of rights.
It
was thus submitted that for lack of locus standi, the Plaintiff’s Originating
Summons herein should be dismissed with costs.
On its part, and in complete contrast, the plaintiff was
clearly of the view that it definitely has the locus standi to bring up
the present proceedings in this Court.
Whether one takes the common law approach or the interpretation of the
Constitutional provisions approach, in
its arguments, the plaintiff in either case found itself arriving at the
conclusion that it is well qualified to bring up these proceedings in
Court.
Mr Kasambala, learned Counsel for the plaintiff, began his
argument by first pointing out that in Malawi there are two ways of looking at
the issue of locus standi. These
he pointed out to be (1) the Common Law way and (2) the constitutional
provisions way. Whereas in the past the traditional way of viewing locus
standi was strictly that only a party whose interests have been violated or
whose personal interests are at stake over and above those of the general
public could access the Courts, over the last 30 years, it was argued, Courts
in England, where Malawi borrowed its common law system from, have changed
their stand and adopted a very liberal way of dealing with questions of
standing, especially on matters involving complaints against public
authorities, as is the case here.
To demonstrate the point a quotation was sourced from Lord
Dennings’s 1979 book entitled “The Discipline of the Law” at pp 116-117
as quoted with approval in the Ghanaian Supreme Court case of New Patriotic
Party vs Attorney General (1999)2 LRC 283 at 305. Lord Denning’s words are as follows:-
“The
tendency in the past was to limit them to persons who had a particular
grievance of their own over and above the rest of the public. But in recent years there has been a
remarkable series of cases in which private persons have come
to the Court and have been heard. There
is now a much wider concept of locus standi when a complaint is made
against a public authority. It
extends to any one who is not a mere busy body but is coming to the Court on
behalf of the public at large.”
Mr Kasambala suggested that if Lord Denning was referring
to the above position as being current twenty-four years ago in 1979 then the
position of Malawian law on the subject cannot now really be any different from
that.
Building on the above Mr Kasambala cited a number of case
and text book authorities tending to support the existence of a definite shift
from the strict old common law position to a more liberal granting of
standing. Among these authorities were
the following: (1) R vs Inland Revenue Commissioners, ex parte National
Federation of Self-employed and Small Businesses Ltd (1982)A.C. 617, where
Lord Diplock said:-
“It
would, in my view, be a grave lacuna in our system of public law if a pressure
group, like the federation, or even a single public spirited tax payer, were
prevented by outdated technical rules of locus standi from bringing
the matter to the attention of the Court to vindicate the rule of law and
get the unlawful conduct stopped.” at p. 644
(2) Minister of Justice vs Borowsk 1 [1981]2 SCR
265 where in granting standing to a tax-payer to impugn pro-abortion
legislation the Court said:
...to
establish status as a plaintiff seeking a declaration that the legislation is
invalid, if there is serious issue of invalidity a person need only show that
he is affected by it directly or that he has genuine interest as a citizen in
the invalidity of the legislation and that there is not other and effective
manner in which the issue may be brought before the Court.”
(3) Blackburn vs Attorney General [1971]1 W.L.R.
1037 where in relation to locus standi of a party seeking to prevent
UK’s joining of the common market and her signing of the Treaty of Rome, Lord
Denning said:-
“A
point was raised as to whether Mr Blackburn has any standing to come before the
Court. That is not a matter which we
need rule upon today. He says that he
feels very strongly and that it is a matter in which many persons in this
country are concerned. I would not
myself rule him out on the ground that he has no standing. But I do rule him
out on the ground that these Courts will not impugn
the treaty-making power of Her Majesty...” at p. 1041
(4) Judicial Review of Administrative Action by De
Smith, Woolf and Jowell where at p 111 it is indicated that sufficient interest
is given a generous interpretation by the Courts so that they assess the extent
of the applicant’s interest against all the factual and legal circumstances of
his application.
(5) R vs Foreign Secretary, ex parte World Movement Ltd
(1995)1 WLR 386 where the Court, inter alia, took into account the importance
of vindicating the rule of law, the importance of the issue raised, the likely
absence of any other responsible challenger, the nature of the breach of duty
against which relief was sought, and the prominent role of the applicants
concerned in giving advice, guidance, and assistance with regard to aid, in
concluding that the applicants had a sufficient interest in the matter they had
sued upon. It was Mr Kasambala’s
submission from this litany of authorities, among others, that Courts are
taking an increasingly liberal approach to standing. He further submitted that standing varies
from case to case and that where exceptionally grave or widespread illegality
is alleged Courts may accord standing to a person who would not otherwise
qualify for it.
Besides this it was further argued on behalf of the
plaintiff that the merits of a matter are an important, if not dominant, factor
when considering locus standi.
Reference was made to Professor Wade’s words in his book Administrative
Law, 7th edition (1994) where that learned author says:-
“...the
real question is whether the applicant can show some substantial default or
abuse, and not whether his personal rights or interests are involved.” at
p. 712
After citing a number of other authorities from England Mr
Kasambala made reference to comparative foreign case law, inter alia, from
Australia, India, Canada, New Zealand and the Netherlands to drive home the
point that the approach adopted towards locus standi follows a similar
pattern in most of these jurisdictions, i.e. relaxing from the previously
strict position.
Tying up with the Solicitor General’s preliminary
remarks to the effect that the amendment
now in issue in this case has attracted wide interest among members of the
public Mr Kasambala argued that the plaintiff clearly falls within the category
of persons who could take up this action.
The plaintiff, as the Public Affairs Committee, he said, is a registered
body that was established to promote, protect, and enforce human rights,
democracy and the rule of law. As such,
he argued that the plaintiff has a duty under Section 12(vi) of the
Constitution to uphold the Constitution and the rule of law.
Any unconstitutional issue, it was contended, is a matter
of concern to the plaintiff both under its own Constitution and under the
Malawi Constitution. Placing reliance on
New Patriotic Party vs Attorney General (supra) it was submitted that
the plaintiff has an obligation under the Constitution to assert its rights or
to generally challenge acts that are inconsistent with or in contravention of
provisions affecting it or any of its members, or the public at large.
In summing up the plaintiff submitted that even at Common
Law it has locus standi in this matter.
Thus concerning the UDF vs Attorney General decision (supra) of
the late Hon. Justice Chatsika which was emphatic on locus standi being
connected to personal interest on the part of a plaintiff, it was argued that
had the learned Judge looked at all these decisions that show a new trend at
common law he would in all
probability
have come to a different decision from the one he reached. In addition the present plaintiff was
distinguished from the plaintiff in that authority in that whereas the Court
found the plaintiff in that case to be a pressure group bent on gaining
political mileage, the same cannot be said of the plaintiff on the present
case, the said plaintiff being a bona fide Non Governmental organization
established to deal with Human Rights issues and to support the Rule of Law.
Moving on to an examination of Constitutional provisions
on locus standi Mr Kasambala first pointed out that, as prescribed under
Section 10 thereof, the Constitution is the supreme arbiter and ultimate source
of authority in the interpretation of all laws.
He then read out Section 15(2) and claimed that it is so clear in what
it provides that one does not even need to have gone to Law School in order to
understand it. The said provision reads
as follows:-
“15(2)
Any person or group of persons with sufficient interest in the protection and
enforcement of rights under this chapter shall be entitled to the assistance of
the Courts, the Ombudsman, the Human Rights Commission and other organs of
Government to ensure the promotion, protection and redress of grievance in respect
of those rights.”
The provision, it was said, gives standing to “Any person
or group of persons.” It was then
contended that the plaintiff, the Registered Trustees of the Public Affairs
Committee, is certainly such a group of persons as is contemplated by the
Constitution. As regards the question
whether or not this group of persons does or does not have a sufficient
interest in the protection and enforcement of rights under Chapter IV of the
Constitution, it was submitted that the answer must be in the affirmative.
Referring to exhibit “KKN5" of the defendants and in
particular to paragraph 3(d) of that document, which is the Constitution of the
Public Affairs Committee, it was pointed out that one of the objects for which
the plaintiff exists is:-
“
to safeguard the rule of law and human rights in the Republic of Malawi.”
The
group therefore, it was argued, has a sufficient interest in the protection and
enforcement of human rights in Malawi and as such, under S15(2) of the
Constitution, it was submitted, it has locus standi to approach this
Court with this case.
Mr Kasambala, however asked a further question as to what
the rights in issue are in the case the plaintiff has so brought up. In answer to this he made reference to
Freedom of Association under Section 32 of the Constitution, to political
rights under Section 40 of the Constitution, and also to the right to access
the Courts under Section 46(2) of the Constitution.
Section 32 of the Constitution provides as follows:-
“32
- (1) Every person shall have the right to freedom of association, which shall
include the freedom to form associations.
(2)
No person may be compelled to belong to an association.”
As
for Section 40 of the Constitution the part mainly referred to, i.e. Sub-Section
(1), reads as follows:-
“40
- (1) Subject to this Constitution, every person shall have the right -
(a) to
form, to join, to participate in the activities of, and to recruit members for,
a political party;
(b) to
campaign for a political party or cause;
(c) to
participate in peaceful political activity intended to influence the
composition and policies of the Government, and
(d) freely
to make political choices.”
In
its turn Section 46(2) of the Constitution provides:-
“46(2)
Any person who claims that a fundamental right or freedom guaranteed by this
Constitution has been infringed or threatened shall be entitled -
(a) to
make application to a competent Court to enforce or protect such a right or
freedom; and
(b) to
make application to the Ombudsman or the Human Rights Commission in order to
secure such assistance or advice as he or she may reasonably require.”
Taking the argument that the plaintiff trustees of the
Public Affairs Committee squarely fall within the class of persons Section 15(2)
means to give standing to, Mr Kasambala cited the case of The Administrator
of the Estate of Dr. H. Kamuzu Banda vs Attorney General Civ. Cause No.
1839(A) of 1997 (Principal Registry, unreported) in which the Hon. Justice
Chimasula Phiri on point of locus standi under the Environmental
Management Act noted it to be a departure from the orthodox requirements for
standing in that it gives the right to sue to “any person” to bring
suits to enforce the right to a clean and healthy environment.
Quoting from p. 13 of that judgment Counsel argued that
“Any person” in that case was strictly understood to be “Any person” without
necessarily it being the person whose rights were infringed by the
defendant. The Constitution here, it was
argued, was equally deliberately drawn to grant standing to “Any person or
group of persons” as a way of giving locus standi to human rights
observers.
Directly on the wording used by Section 15(2) of the
Constitution, Mr Kasambala referred to the decision of the Hon. Justice Mwaungulu
in Thandiwe Okeke vs Minister of Home Affairs and The Controller of
Immigration Miscellaneous Civil Application No. 73 of 1897
(Principal Registry - unreported). In
that case the learned judge considered the wording of the material provision
along with the wording in Section 46(2) in considerable detail and came to the
conclusion that in granting
the
right to approach the Courts to “any person” and in establishing a
scheme for the protection and enforcement of “rights” as opposed to the
protection and enforcement of the
violated rights of a particular complainant, suggesting that only
persons whose rights have been violated have sufficient interest
in
the protection and enforcement of rights amounts to a restrictive and
unjustified interpretation of Section 15(2) of the Constitution.
After suggesting a survey of similarly decided
Constitutional cases in Ghana, South Africa, India, and Bangladesh, among other
countries, Mr Kasambala asked this Court to take heed of the caution raised by
the Constitutional Court of South Africa in the case of The State vs T.
Makwanyane and M. Mchunu, Case No. CCT/3/94 to the effect that it pays to
read and understand your own document first before seeking guidance from
interpretation of provisions in other countries. To this end Mr Kasambala submitted that if
the Malawi Supreme Court of Appeal had really looked at Sections 15 and 46 of
the Constitution they would have understood “Any person” to mean “Any Person.”
As regards the two American cases the Supreme Court used
to justify its views on locus standi in the Press Trust Case,
which same cases Hon. Justice Tembo (as he then was) also relied on in The
State vs Registrar General and Minister of Justice, ex parte
Civil Liberties Committee Civ. Cause No. 55 of 1998 (Principal
Registry - unreported) his comment was that those cases ought to have been
viewed in the light of the particular wording in the United States Constitution
and in the Federal Practice Rules that influenced them. The implication was that they ought not just
to have been transposed on the Malawian situation which should be governed by
the wording as peculiarly employed in our Constitution.
On this same point of locus standi it is my
observation that what the Amicus Curiae said on it is not going to be
very useful in the determination of the issue now under consideration. I say so because the address from that
quarter rather concentrated on the standing the Malawi Human Rights Commission
itself ought to have in this case as opposed to the standing of the
plaintiff. The locus standi the
defendants have, in this case challenged, however, is the locus standi
of the plaintiff. If the challenge
launched is successful the case will come to an end as the issues raised by the
plaintiff in its Originating Summons will then not fall for determination. At that point the standing the Amicus
Curiae may be having will not be useful as their arguments on the main
issue can then not be entertained if the convener, so to speak, of the case is
ruled unfit to bring up this case. Amicus
Curiae arguments on locus standi would therefore have been more
helpful if they had been geared towards throwing light on the question whether
or not the plaintiff in the matter has a right to present this case to the
Court.
I should, however, mention here that the friends of the
Court having already been admitted to this case on 1st September, 2003 as
earlier disclosed, by virtue of that order they did not have to justify their
right to participate in the present case afresh. This notwithstanding I have all the same
looked at both Section 129 of the Constitution and Section 12 of the Human
Rights Commission Act cited by them along with the brilliant Ruling in favour
of their standing in this Court in these types of matters as pronounced by Hon.
Justice Nyirenda in Malawi Human Rights Commission vs Attorney General
Miscellaneous Civil Cause No. 1119 of 2000 (Lilongwe District Registry -
unreported). All I can say in the end is
that I think there was ample legal justification for my brother Judge letting
them into this case. I accordingly
certainly stand to benefit from their wise Counsel as friends of the Court on
the substantive issues of this case, should I end up finding that the
plaintiff
has locus standi in the matter and consequently proceed to a
meritorious determination of the Originating Summons.
I have in this case heard very lengthy, very lucid, and
very learned arguments on the question of locus standi. I really must commend all learned Counsel
from both sides of the case for not sparing any efforts in researching very
deeply on the subject and presenting me with very able, exhaustive and
comprehensive arguments on the issue. Although I was initially inclined to
think that they had done a bit of overloading on the subject of authorities, it
was after applying myself to the various authorities they so generously
supplied me that I found myself sincerely appreciative of the efforts
they have expended in this regard. In so
making available this wide library of authorities they have enabled me to
comfortably digest the considerations truly at state when locus standi
is in issue and to finally emerge confident about how I now view this issue.
As will have been clearly discerned from my recount above
of the parties’ arguments on this subject of standing, the plaintiff and the
defendants are at ad idem about the existence of two approaches to the
issue. They both acknowledge one of
these approaches to be a Common Law one, which incidentally the defendants have
also referred to as the restrictive approach.
The parties are, however, diametrically opposed on the consequence that approach entails for the
plaintiff as regards the case it has commenced in this Court.
From what I understand the defendants to be saying the common
law position on standing is as rigid as it has always been , ever since the
development of the rule that a person whose rights have not been infringed or
threatened, i.e. one who does not have any interest in an action over and above
that of any other member of the public, will not be allowed to
commence
an action in Court in the absence of such a personal interest. As happened to be the case in the entire
lengthy arguments presented on behalf of the defendants on locus standi
I saw no acknowledgment or admission, even to a remote degree, of any shift in
this original common law position.
Further than this the defendants carried forward this
rigid common law position, and on authorities including local cases,
fused it in with the second approach to the question of locus standi. In net effect, without conceding even one
inch, the stand of the defendants was and has in this case remained that the
plaintiff in this case, has no interest over and above any other member of the
public, and that it thus has no right of its own which it can point to as
having been infringed or threatened so as to give it the springboard on which
to launch this action. In short the
defendant very rigidly stood by their point in this case that the plaintiff has
no locus standi in this action.
In fact in all earnest they pray, in the circumstances, that the action
taken out by the plaintiff be dismissed with costs.
In contrast to the position taken by the defendants the
plaintiff, while coincidentally agreeing with the defendants that originally at
common law locus standi was determined in the rigid terms just discussed
above, the uncompromising stance as then taken has since undergone remarkable
softening, especially in cases such as the present where the complaint touches
on the enjoyment of constitutional rights as against the conduct of a public
authority in relation to such. Arguing
that the plaintiff is not merely a busy body, but a responsible NGO directly
working on human rights and rule of law issues and that it therefore in various
respects qualifies for standing on the modern common law approach to issues of locus
standi,
the
plaintiff herein was equally adamant that even under the common law as it has
stood since the past 30 years or so it would easily qualify for standing.
Having sufficiently pondered over the arguments I have
heard on this subject, and having read and scrutinized the various authorities
both parties cited to me on the subject, I must say that it is quite evident
now that the common law position on standing, at least as regards
constitutional rights cases as opposed to ordinary cases, has not remained as
rigid and static as it originally was, as the defendants would have me
believe. It is very clear from
authoritative text books such as Lord Denning’s “The Discipline of the Law”
and from the various weighty and highly persuasive case authorities, such as
Lord Dennings’s Blackburn, Lord Diplock’s and Lord Wilberforce’s Inland
Revenue Commissioners case, among others, that there is definitely a
visible and distinct shift in Court attitudes on standing, which cannot just be
wished away, from the originally very strict common law position that locus
standi only goes hand in hand with possession, on a complainant’s part, of
a personal grievance over and above that of the general public to a more
liberal grant of standing.
Now, if there is, currently in existence, as vividly shown
by the authorities cited on behalf of the plaintiff, a whole new trend of how
Courts currently assess locus standi, even within the common law itself,
and this has been on for many years now, and if in past local case authorities,
such as the Kachere (supra) and Press Trust Cases (supra), this
new trend has not, if at all, been as ardently marketed to the Supreme Court of
Appeal, is there a way of telling with any certainty what result that Superior
Court would have come up with upon a thorough consideration of this new trend
on standing? I think not. This shift in legal position, in my
observation, even by Courts in the jurisdiction from which we borrowed the
Common Law, marks
a
jurisprudential development which appears to be by-passing us, but which we
cannot just neglect when we come to know of it.
It is certainly not just a creature of Mr Kasambala’s lips because he is
quoting from existing authority. As demonstrated by the authorities in issue,
legal heavyweight minds such as that of the ever amazing late lamented Lord
Denning both in his 1979 book and, inter alia, in his 1971 Blackburn vs
Attorney General (supra) judicial pronouncement, and of Professor Wade’s
ever authoritative and illuminating legal texts, and of Lord Diplock’s incisive
and eloquent judgments such as he pronounced in the R vs Inland
Revenue Commissioners case (supra), among others, cannot, in my
view, be taken lightly and relegated to the dustbin just like that.
In the light of these highly persuasive authorities I for
one would not dare to hazard that our Supreme Court would not wish to lend an
ear to the observations, not casually made, by such learned minds in their
legal writings and in their judgments.
I, in the circumstances, will however definitely dare to think that if
this new regime of case authorities had been put to the Supreme Court, or that if
it had been so well presented to that Court, as it has been to me in this case,
that Court might not in the famous Kachere and Press Trust cases
have pronounced and maintained the inflexible and uncompromising views they
issued on locus standi in regard to
Sections 15(2) and 46(2) as they did.
In short, on the strength of the chain of the persuasive authorities I
have been exposed to about the current Court attitudes, even in the very
country the old and rigid common law rule was initially developed, I find
myself led into the entertainment of genuine reasonable doubts about whether
our Supreme Court would still stick to its current position on the issue and
remain unshaken in its stand when fully exposed to the impact of these
authorities.
Be this as it may my position is not necessarily that the
common law, old or new, is the solution to the question whether or not the
plaintiff in this case has the locus standi to pursue the present
matter. With a written Constitution in
place, bearing as it does, direct provisions on standing, I do not think that
one necessarily needs to, as an initial step, call in aid the common law in
order to comprehend what the Constitution says, unless the assumption is that
it does not speak clearly enough.
In England, where to date there is no written Constitution,
I can understand why one must rush to discover what the current common law
position is on questions of standing when faced with such a querry. As seen, however, Courts out there
nothwithstanding absence of a written Constitution, have not had much difficulty
in adjusting to the changing times and in thus keeping pace with their
accommodation of a new wave of cases concerning people’s rights as against
public authorities.
In Malawi, it is my view after hearing all the arguments
in this matter and after looking up the relevant provisions in the
Constitution, that the Constitution is far from ambiguous in its prescriptions
on matters of standing in relation to presentation of complaints of violations
of fundamental rights under it. It
speaks so directly, and I believe without equivocation, that I tend to think
that it is the style in which our Courts have approached it that have
complicated things. It strikes me that
instead of being patient and sincerely listening to its direct message, Courts
have rushed to put on old common law spectacles, and to dig up ancient foreign
case law, before getting convinced that they can even begin to understand the
document before them. This, with due
respect, is what has tended to cloud the otherwise clear document and I think it is a fallacy.
The answer on locus standi on the issues raised in
the current Originating Summons will not come from how Judges in America, in
England, in South Africa or elsewhere in the World construe it depending on
their peculiar traditions and/or special wording in their Constitutions or
Statutes, although that might still provide us a guide on the trend generally
applicable. I do believe that the answer we need on this issue and in this case
will come directly from our own Constitution, which after all is the document
that contains the wishes and aspirations of our people. The more genuinely we give it attention and
the more sincerely we evaluate its enabling provisions without rushing to disable
them by trying to force them to fit in some ancient and expiring doctrinaire
concepts, the nearer we will get to the justice regime the framers of the
Constitution contemplated for the people of Malawi.
This now brings me to a consideration of the arguments the
parties in the case presented me with on what they jointly recognized as a
second legal approach to the question of locus standi. Again here, just as was the case during
arguments on the common law approach, the defendants see no locus standi
emerging for the plaintiff under this head while on its part the plaintiff
clearly sees itself mandated to bring up these proceedings.
I have just advocated for a chance to be given to the
Constitution to speak with an uninterrupted voice and to first try and
understand what it means before rushing to borrow the influence of decisions in
other jurisdictions for the construction of our Constitution. I should think that it is only when a
direct understanding of the Constitution proves difficult to capture that
resort can be meaningfully had to such other guiding material and precedent.
The excise thus involves the employment of appropriate and effective ways of
interpreting the Constitution.
It will be a worthwhile reminder at this point to bear in
mind that under its Section 4 the Constitution unreservedly proclaims that it
binds all executive, legislative and judicial organs of the State and that it
guarantees equal protection to all the people of Malawi. By its Section 9 the
same Constitution accords to the Judiciary the responsibility of interpreting,
protecting, and enforcing the Constitution and all laws in line with it, in an
independent and impartial manner, with regard only to legally relevant facts
and to the prescriptions of law. It then
by its Section 10 claims the status of supreme arbiter and ultimate source of
authority in the interpretation of all laws.
It has then urged Courts, under its Section 11, to develop and employ
appropriate principles of interpretation when they are faced with the interpretation
of the Constitution in order to reflect its unique character and
supremacy.
In so doing Courts have particularly been enjoined to
promote the values that underlie an open and democratic society, to take full
account of the fundamental principles on which the Constitution is founded and
the Human Rights it has enshrined, respectively covered in Chapters III and IV
of the Constitution, and where applicable to have regard to norms of public
international law and comparative foreign case law. It therefore is, I think, vitally important
that a Court faced with an interpretation assignment keeps all these valuable
prescriptions at the back of its mind as it embarks on such assignment.
There is, I believe, sufficient guidance both from local
and foreign decisions that have been cited in this case to the effect that the
interpretation of a country’s Constitution is an exercise quite different from
the interpretation of ordinary pieces of legislation. As Sowah, J. S.C. said in the Supreme Court
of Ghana in Tuffour vs Attorney General [1980] G.L.R. 637:-
“A
written Constitution...is not an ordinary Act of Parliament. It embodies the will of the people. It also mirrors their history. Account, therefore, needs to be taken of it
as a landmark in a people’s search for a better and fuller life. The
Constitution has its letter of the law.
Equally, the Constitution has its spirit... The language... must be
considered as if it were a living organism capable of growth and
development... A broad and liberal spirit is required for its interpretation. It does not admit of a narrow
interpretation. A doctrinaire approach
to interpretation would not do. We must
take account of its principles and bring that consideration to bear, in bringing it into conformity with the needs of
the time.” at
pp 647-648
From the same jurisdiction in interpreting a particular
provision of the Ghanaian Constitution Ampiah, J. S.C. of the
Supreme
Court of Ghana said in New Patriotic Party vs Attorney General
(1999)2 L.R.C. 283:-
“It
is true that the plaintiff in this case has not alleged a violation of its
personal rights, but under article 2(1)(a) the Constitution gives a right to
any person who alleges that “an enactment or anything contained in or done
under the authority of that or any other enactment...is inconsistent with, or
is in contravention of a provision of the Constitution” to bring an action for
a declaration to that effect... The plaintiff has an obligation under the
Constitution to assert its right or generally to challenge acts which are
inconsistent with or are in contravention of the provisions affecting it or any
of its members, or of the public at large.” at p 305
This trend on wide and liberal interpretation of
Constitutions, from the authorities, is world wide. Honourable Justice Nyirenda remarkably
depicted that trend in his detailed consideration of case authorities from
numerous jurisdictions in the case of the Malawi Human Rights Commission
vs Attorney General (supra).
Happily our own Supreme Court has authoritatively embraced
this liberal approach to constitutional interpretation. As boldly and eloquently put by then
Honourable Chief Justice Banda when on 23rd October, 2000 delivering the
decision of that Court in the Gwanda Chakuamba, Kamlepo Kalua, Bishop
Kamfosi Mnkhumbwe vs The Attorney General, The Malawi Electoral Commission and
the United Democratic Front, MSCA Civil
Appeal No. 20 of 2000
(unreported) (alias The Elections
case, there is no longer any doubt how Courts in Malawi ought
to interpret the Constitution His Lordship said:-
“Section
11 of the Constitution expressly empowers this Court to develop principles of
interpretation to be applied in interpreting the Constitution. The principles that we develop must promote
the values which underlie an open and democratic society, we must take full
account of the provisions of the fundamental constitutional principles and the
provision on human rights. We are also
expressly enjoined by the Constitution that where applicable we must have
regard to current norms of public international law and comparable foreign case
law. We are aware that the principles of interpretation that we develop must be
appropriate to the unique and supreme character of the Constitution. The Malawi
Constitution is the supreme law of the country.
We believe that the principles of interpretation that we develop must
reinforce this fundamental character of the Constitution and promote the values
of an open and democratic society which underpin the whole constitutional
framework of Malawi. It is clear to us
therefore that it is to the whole Constitution that we must look for guidance
to discover how the framers of the Constitution intended to effectuate the
general purpose of the Constitution.
There is no doubt that the general purpose of the Constitution was to
create a democratic framework where people would freely participate in the
election of their government. It creates
an open and democratic society.”
at pp 5-6
It is encouraging to note that this was not the first time
the Supreme Court was so plain in its position on this matter. The following passage from the Fred Nseula
vs Attorney General and Malawi Congress Party Case (supra) decided on 15th
March, 1999 is equally instructive.
Again the then Chief Justice Banda pronounced the decision of the
Court. Said he:-
“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 intention 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.”
at p. 9
Taking these forceful dicta on their face value I
find all the encouragement from my Superior Court to be as liberal and as
broad-minded as possible in this case when trying to comprehend what message
Sections 15(2) and 46(2) of the Constitution have for the people of Malawi and
for the Courts in particular. Honestly,
it seems to me that if it be the case that the Supreme Court has always held
the above-quoted views on constitutional interpretation, then I find it
difficult to understand how in the Kachere and in the Press Trust
cases it could have ended up with a narrow and legalistic, if not also
pedantic, version of locus standi in its interpretation of Sections
15(2), 41(3), and 46(2), the said Sections having been coached in very open and
liberal terms. To begin with, as earlier
seen, the Court in its interpretation appears not to have relaxed even one
bit. Instead it clung so unduly hard to
the strict old common law position and did not have chance to note that even
that position has somewhat changed.
Secondly, it appears to me that no real effort was employed
by the Supreme Court to first try and understand the plain wording of the
provisions for what they truly stood for.
Thirdly, it also appears to me that undue attention was given to foreign
precedents, which were not after all directly interpreting this Constitution,
to impose on the provisions under interpretation values it was deemed this
Constitution ought to propound. It thus
appears to me that warm as the embrace of the Supreme Court has appeared to be
for the manner in which the Constitution ought to be interpreted so as to give
full meaning to the intention of its framers and to reflect its unique
character and Supreme Status, from the interpretations that emerged from the Kachere
and the Press Trust cases it would not be far from the truth to say that
the Supreme Court did not then practice what it has since then been preaching
about avoiding narrow legalistic and pedantic ways of interpreting
constitutional provisions.
Going to Section 15(2) first I tend to think that “Any
Person or group of persons” cannot mean anything other than what it says and
that narrowing it to a special species of “any person or group of persons”
violates the liberal and wide style of interpreting a Constitution. As regards the wording “with sufficient
interest”, from the way the provision is coached, in my view, it amounts to
deliberately choosing to walk down the narrow path rather than through the
recommended highway of interpretation if we choose to interpret that phrase
only to mean persons possessing personal interest and to leave out all
others. I do not doubt that a person
with a clearly identifiable personal grievance on a matter he wants to bring to
the Court will certainly have a sufficient interest. Can we, however, confidently say that that is
the only person the provision had in mind when it was coached so broadly and
loosely? I sincerely think not.
It will be observed that the provision encompasses not
only enforcement but also protection of rights with a view to achieving their
promotion, protection as well as the redress of grievances. In my considered view, it cannot be, that
what passes as “sufficient interest” for a person or group of persons trying to
enforce a right should necessarily also be the only qualification to pass as a
“sufficient interest” for a person or group of persons merely trying to protect
a right or rights as opposed to enforcing the same.
The short Oxford English Dictionary, among other meanings,
defines protection as “defence from harm, damage, or evil”, while it, among other
meanings, defines enforcement as “the compelling of the fulfilment of (a law, a
sanction e.t.c.)” Certainly as the definitions above serve to demonstrate,
protection and enforcement are two distinct things.
Section 15(2) of the Constitution entitles both those that
want to protect rights and those that want to enforce them, inter alia, to the
assistance of the Courts. The two
assignments being so different, I think it would be very presumptious to
prescribe one uniform test of “sufficient interest” for both of them. I thus do believe, and sincerely so for that
matter, that if the generous guidance from the Supreme Court on constitutional
interpretation emanating from the dicta quoted above is to be given the meaning
it deserves, “sufficient interest” for a party that merely wishes to protect
rights cannot be the same as “Sufficient interest” for purposes of a party
wishing to enforce them.
In the circumstances I find myself in agreement with the
broad manner in which Hon. Justice Chimasula Phiri understood the words “Any
Person” in the Environmental Management Act case and I would not hesitate to
extend the same latitude to an interpretation of like words in S15(2) of the
Constitution. I thus also find myself
quite in agreement with Hon. Justice Mwaungulu when he so broadly and
purposively understood the same words as used in this Section in the Thandiwe
Okeke case (supra). I further see
merit in Hon. Justice Mwaungulu’s further observation in the same case to the
effect that it is significant in Section 15(2) that the provision is focused on
“protection and enforcement of rights” and not necessarily on the protection
and enforcement of the particular rights of the person or the group of persons
bringing an action. Indeed if that had
been the intention of the framers they would have prefixed the adjective “his”,
“her”, or “their” to the word “rights” they so wanted to be protected or
enforced.
I find, accordingly, that limiting “sufficient interest”
under Section 15(2) of the Constitution to only a person or only a group of
persons that have a personal grievance does not take full account of the full
breadth of the provision in question, in that it omits the fact that the
provision also gives this right of access to the Courts to persons merely interested
in protecting the rights (not necessarily their personal rights) and that apart
from seeking remedies for grievance, the provision is open enough to allow
promotion of rights well apart from protection of those rights.
Turning to Section 46(2) of the Constitution my views are
not really different from those I have expressed in respect of Section
15(2). As can be seen this provision
also gives the right of making an application to a competent Court to “any person”
Going by the rules of interpretation of the Constitution as above-discussed I
apprehend “any person” should be understood as widely as the term itself
suggests. Further, just like S15(2) does
it, this provision classifies the intended applicant as a person who claims
that “ a fundamental right or freedom guaranteed by this Constitution
has been infringed or threatened” (my emphasis). I would again here opine that “a fundamental
right or freedom” is different from “his or her fundamental right or freedom.”
With such plain wording I cannot comprehend why “a” should
here be restrictively construed to mean the fundamental right or freedom of the
particular applicant and not of anybody else.
Of course if the applicant’s right or freedom is indeed infringed or
affected that will be the clearest example of the type of applicant the
provision envisaged, but that does not mean that we have to stop there and cut
out all others whom the article “a” was meant to accommodate. Further still as the provision clearly shows
the aim of such application would be “to enforce or protect such right or
freedom.”
Again here I would maintain that enforcing and protecting
are two different activities. In my
view, therefore, this Section was meant to give the right to apply to Court,
not only to those seeking to enforce rights (not necessarily their rights), but
also to those who see fundamental rights or freedoms being infringed or
threatened and feel compelled to jump in to protect those rights or freedoms,
as is openly allowed by the Constitution.
I would therefore find it unduly restrictive and pedantic to say that
S46(2) of the Constitution only caters for applicants that have a personal
interest over and above anyone else due to infringement of or threat to their
personal rights or
freedoms.
To so hold, in my view, would be to directly go against the recommended way of
interpreting this Constitution and to paying lip service to the dicta of the
Supreme Court on the point.
I have made my reasons plain for entertaining reservations
against the Supreme Court’s definition of locus standi under Sections
15(2) and 46(2) of the Constitution as per their 1995 Kachere and their
1997 Press Trust cases judgments.
I have thus not deliberately avoided the binding effect of those
authorities. It is for reasons I have
taken pains to explain above in some detail and it is also with the greatest
respect to my Superior Court that I have opted to differ from those two
authorities as I believe them to harbour some serious faults. It must therefore be quite plain now that the
argument of the defendants in this matter to the effect that the plaintiff does
not have the locus standi to bring this action does not, in my view,
tally with the way I understand the law.
On a plain, liberal and purposive interpretation of the
constitutional provisions touching on this subject and also on an
acknowledgment of the fact that even the common law has shifted from its
original rigid stance on the subject towards a more liberal way of viewing
standing, I am convinced on balance that the plaintiff herein is, by direct
authority of the Malawi Constitution itself mandated to come to the Courts as
it has done to protect and enforce rights generally, even if its own may not be
currently infringed or threatened. I
hold therefore that the Registered Trustees of the Public Affairs Committee
have the locus standi they need to pursue the proceedings they have
commenced in this Court via Originating Summons and I will therefore proceed to
adjudicate on the same on the merits.
Before I go far there is an issue that was raised by the
learned Solicitor General on behalf of the defendants, first under the
arguments on locus standi, and later under the substantive arguments on
the Originating Summons which I need to resolve. I must say that I really was not quite sure
what pigeonhole of the case the Solicitor General wanted that argument slotted
into. The argument having cropped up
twice in two different segments of the case I now think it best to deal with it
now as I cross no man’s land from the locus standi side of the case to
the substantive Originating Summons argument side of the case.
The point raised was in relation to the manner the
plaintiff his coached its prayer in paragraph (a) of the Originating
Summons. That paragraph reads:
“(a)
A declaration that the amendment of Section 65 of the Constitution as amended
is unconstitutional and invalid.”
It
was pointed out, if I understood the argument correctly, that the plaintiff not
having specifically mentioned the Constitution (Amendment) (No. 2) Act, 2001 or
referred to it as Act No. 8 of 2001, by the rules which bind parties to argue
their cases according to their pleadings, the said plaintiff should not be
allowed to argue for a declaration to the effect that that Act is
unconstitutional and invalid, but that it be strictly confined to arguing the
matter in the manner it had pleaded its case at paragraph (a) as earlier shown.
To my mind the problem highlighted here is relatively
simple. It is true that the amendment
Act in question is nowhere mentioned in the Originating Summons of the
plaintiff. I must also say that there is
some tautology reflected in the manner the plaintiff has used the words
“amendment” and “amended” in that short paragraph. All the same, however, I
think that despite this the meaning of the paragraph is far from clouded, if at
all it is. It appears to me that it is
very clear that the attack the plaintiff has launched is directed at the
amendment of Section 65. In other words
it is directed at the amended version of Section 65 of the Constitution.
Indeed I am convinced that this meaning was not lost to
the defendants in this case because right from the beginning of the case, as
demonstrated by their very initial response to the Originating Summonses, at
paragraph 2 thereof and through the affidavit in opposition and its exhibits,
they answered the plaintiff’s concern at the paragraph (a) herein by making
direct reference to the amendment Act in question and also to the Act number in
question apart from exhibiting it. I am
sure if the plaintiff’s style of pleading had prejudiced or confused them in
any way they would not have been so direct and sure in their response. As it turns out, however, it has emerged very
clearly throughout these proceedings that since the advent of the current
Constitution there has not been more amendments than one to its Section
65. Reference to the amendment of
Section 65 or to Section 65 as amended in paragraph (a) of the Originating
Summons, therefore, is as good as referring to that same amendment by its short
title or by its Act number, since it is not capable of being understood to mean
and to refer to any other amendment, none other on the same provision having
taken place.
Thus while I fully subscribe to what the Supreme court of
Appeal said about the value of pleadings in Fred Nseula vs The Attorney
General and Malawi Congress Party (supra) I think in this case confining
the plaintiff to arguing its case strictly as pleaded as the Defendants have
urged me to is exactly the same thing as confining it to argue the case as per
Act No. 8 of 2001 or as per the Constitution (Amendment) (No. 2) Act,
2001. This argument, therefore, does not
in any way advance the stand of the defendants in this case, be it on the limb
of locus standi or on the limb of the substantive matter. I accordingly reject it.
In the light of my finding locus standi for the
plaintiff above, I will now move on to consider the substantive arguments of
all the parties, including the Amicus Curiae. Before I do so, however, let me disclose
that, both on the issue of locus standi and on these substantive
arguments, all three parties filed long written submissions with the
Court. Since, per consent order for
directions, they each only had limited time within which to make their oral
presentations on the case, I was trusted to read their written submissions as a
supplement to their said oral presentations and I have duly done so. Thus as I
try to recount the sides each party took in the case, I will as best I can be putting
forward a hybrid of their oral and written submissions.
I should here assure the parties that I have done my best
to as fully understand their arguments as possible so as to end up determining
the matter in the light of the requisite full understanding of the case. Countless authorities, in the form of foreign and local cases, foreign and local
legislation, and text books and articles, were in this branch of arguments also
cited by all the parties, and again here I sincerely appreciate that almost all
of the authorities were made available to me.
Much as it will not be possible for me to cite each such authority as
part of this ruling the parties should be rest assured that I have made full
use of these authorities in the formulation of my decision on it.
Beginning with the plaintiff, as indicated at the outset,
its stand is and has throughout remained that it is seeking a declaratory order
from this Court to the effect that the amendment to Section 65 to the
Constitution, which it is complaining about in this Originating Summons, is
unconstitutional and invalid. I have
already earlier on in this ruling indicated the form that amendment took by
highlighting it. The plaintiff has, in
the course of presenting its case, made
extensive
reference to a number of provisions in the Republican Constitution, which it
believes to have a direct bearing on its
arguments
in the case. Among these is Section 5 which provides that any act of Government
or any law that is inconsistent with the Constitution shall, to the
extent of such inconsistency, be invalid (my emphasis).
Section 8 has also been singularly mentioned. Applying directly as it does to the
legislature, it enjoins that institution when enacting laws to, in its
deliberations, reflect the interests of all the people of Malawi, and to
further both the explicit and the implicit values of this Constitution. I in fact need not here recite each and every
constitutional provision that has been touched upon as a prelude to the
Plaintiff’s or indeed to any other parties’ arguments on the Originating
Summons. Suffice to say that I have already highlighted some of these
provisions when discussing the arguments advanced on the subject of locus
standi and that the others will more prominently feature in due course as I
proceed with this ruling.
I should, however,
probably all the same separately here mention Section 15(1), as opposed to the
Section 15(2) I have already extensively discussed. This provision requires, inter alia, the
executive, the legislative, and the Judiciary, to respect and to uphold all the
human rights and freedoms the Constitution has enshrined in its Chapter IV and
it makes them enforceable in the manner prescribed under the same chapter.
With all relevant Constitutional provisions lurking in the
background the plaintiff began its arguments by making it plain that its attack
in this Originating Summons has nothing to do with Section 65 as it originally
stood when the Constitution came into force.
In this regard the plaintiff indicated that it accepts the principle
enunciated by the Supreme Court I n the Fred Nseula case (supra) to the
effect
that
you cannot use one Constitutional provision to destroy another constitutional
provision. The plaintiff’s attack, it
was made vividly clear, is specifically targeted at the Act that amended
Section 65 by changing it from its original form and it is this Act in
particular the plaintiff would like to have declared unconstitutional and
invalid.
The plaintiff hereafter proceeded to express the view that
the amendment so carried out did not auger well with the general spirit of the
Republican Constitution in that it unconstitutionally curtailed the freedom of
association as provided under Section 32 of the Constitution. The plaintiff further indicated that it
viewed the amendment herein as also curtailing the political rights granted to
every person as provided for under Section 40 of the Constitution. It was
argued in this regard that in extending the concept of crossing the floor from
its original position where loss of a seat in the National Assembly could only
be incurred if one moved from one
political party represented in that House to another political party
also represented therein, to its new position where loss of a seat can even be
incurred by joining associations or organizations outside the said Assembly
amounts to a clear curtailment of the freedoms and rights earlier referred to.
It was thus contended that since in net effect the
amendment of Section 65 was indirectly limiting the rights of Members of
Parliament from freely exercising their freedom of association with any
association or organization, be it a political party or not, and as it was
also, inter alia, limiting their rights as guaranteed by Section 40 to e.g
campaign for any particular political policies, apart from limiting their
political choices, it ought therefore to have been effected in compliance with
Section 196 of the Constitution, the rights so affected by it being in the
Schedule to the Constitution, by first exposing the said amendment to a
referendum before it could
be
effected. No referendum having been so
conducted before this amendment was effected, the plaintiff argued that it
followed that the amendment was therefore unconstitutional and invalid.
As can be seen the Plaintiff has challenged the
constitutionality of the amended Section 65(1) at two levels. The first level has been that of an attack on
the procedure Parliament followed when passing the amendment. The second level has been that attacking the
content of the new Section 65(1), which content is said to directly abridge the
freedom of association under Section 32 and the exercise of political rights
under Section 40 of the Constitution. In
regard to the impact the amended S65(1) has on the enjoyment of these
fundamental rights, it has been contended on behalf of the plaintiff that the
original S65(1) was much more in keeping with the functioning of a multi-party
democracy than the present one is.
Under the original Section 65(1) Members of Parliament, it
was argued could freely go about their duties and exercise their right to the
freedoms and rights earlier referred to by joining hands with organizations or
associations such as the plaintiff’s Public Affairs Committee and the like without
fearing for any reprisals for working with such institutions. Presently, it was contended, with the amended
S65(1) in place, Members of Parliament face the prospect of losing their seat
on joining any such association or organization even if it is not a political
party, simply on the basis it might be construed to have objectives or
activities that are political in nature.
The extensions in regard to the novel forms of crossing
the floor which the amended S65(1) has brought on the scene, it was argued, are
seriously at the expense of constitutionalism in this country. The effect of the same, it was lamented, is
to reduce Members of Parliament liable to be caught up by this
amendment
to the level of merely being the singing puppets of the leaders in the parties
they belong to.
Mr Kasambala, in continuing with the submissions of the
plaintiff, made reference to the marginal note for Section 65 as being
“Crossing the floor.” He pointed out
that this is a concept borrowed from the English constitutional system. In a literal sense the floor in question, he
said, is that between the side of the National Assembly that accommodates the
ruling party and the side that accommodates the opposition parties. The original S65(1) was only concerned with
the willy nilly crossing of this floor between members of the political parties
represented in the House. It was only
this conduct that met with the sanction of loss of one’s seat and this
preserved constitutionalism.
It was then
contended that the amended S65(1), in even covering the joining of associations
or organizations outside the National Assembly as a form of crossing the floor,
not only makes this term a misnormer, but it also actually promotes party
dictatorship over the Member of Parliament. It was submitted that Members of
Parliament more than anyone else need fuller protection against any attempts to
deprive them of their basic right to associate.
Parliament, it was further alleged in the arguments,
failed in its duty to promote the democratic values implicit in the
Constitution. It also failed, it was
argued, to take into consideration the fundamental rights and freedoms
enshrined in the Constitution, especially those under Sections 32 and 40. It was thus submitted that the amendment to
Section 65(1) went overboard. Reference was then made to the judgment of
Farewell, L.J. in Amalgamated Society of Railway Servants vs Osborne
[1909]1 Ch. 163, among other cases, to demonstrate the point that all stable
democracies tend to be more tolerant
of floor
crossing. The amended S65(1) was accused of weakening good governance and
accountability and it was suggested that it inevitably encourages subservience
of Parliamentarians to the party bosses.
Reference was also made to Section 44(2) of the Constitution
which permits the imposition of some measure of limitations or restrictions on
the derogable rights of Chapter IV of the Constitution. It was contended, however, that the amended
S65(1) cannot be argued to be a justifiable limitation or restriction on the
freedoms and rights under discussion. It
was then argued that the onus is on the defendants to show whether the
limitations or restrictions occasioned by the amendment do fall within Section
44(2) by being reasonable, recognized by international human rights standards,
and being necessary in an open and democratic society. In support of this proposition the plaintiff
had recourse to the recent decision of Hon. Justice Chikopa in Civil Cause 50
of 2003 Hon. J.Z.U. Tembo and Hon. Kate Kainja vs The Attorney General
(Mzuzu District Registry - unreported).
All in all it was the contention of the plaintiff that, tested against
Section 44(2), the amended Section 65(1) would not pass the prescribed tests.
Moving on from here it so happens that the substantive
arguments of the Malawi Human Rights Commission, as friends of the Court,
coincided with those of the plaintiff on the prayer for a declaration from this
Court vis-a-vis the amendment to Section 65(1) of the Constitution in
issue herein. As such it will be best
for me to discuss them now before proceeding to a consideration of the
arguments offered by the defendants.
Human rights, it was the view of Amicus Curiae, are indivisible
and inter-dependent. The Human Rights
Commission thus feels that the enjoyment of one right necessarily affects the
enjoyment of other rights, just as it also
feels
that a denial of the enjoyment of one right has a ripple effect on the
enjoyment of other rights.
In the light of the case before the Court Amicus Curiae,
through the learned Mr Tembenu, called upon this Court to decide for
clarity’s sake whether the amendment to Section 65(1) of the Constitution is
inconsistent with and in violation of the freedom of association provided for
under Section 32 of the Constitution and of the rights especially at Section 40
(b) and (c) of the Constitution to respectively campaign for a political party
or cause or to participate in peaceful political activity intended to influence
the composition and policies of the Government. Like the plaintiff, Amicus
Curiae, also then referred to the Supreme Status of the Constitution, the
mandate of the Court to strike out executive action and legislation that are
not consistent with the Constitution, appropriate principles of interpreting
the Constitution, and they then asked the Court to test the amendment in issue
against the Constitution for consistency.
Amicus Curiae, as
a National Human Rights Commission under the Constitution and under the Human
Rights Commission Act, and being engaged in observing the enjoyment of rights,
submitted that the amendment of Section 65 herein severely restricts the
enjoyment of the freedom of association.
This freedom, it was argued, entails the ability of people to come
together by way of groupings to achieve set objectives without unnecessary
restraint from the State and that it is one of the core and fundamental rights
for the existence of democracy. Taking
away this freedom, it was submitted, undermines the basis of an open and
democratic society. The amendment to
Section 65, it was argued, takes away what S32 gave and does not therefore
create an open society. Reference was at
this point made to the decisions of
the
European Court of Human Rights in Chassagnou and Others vs France 7 BHRC
151 and in Sidiropoulos and Others vs Greece 57/1997/841/1047 to
demonstrate the value of the freedom of association and how its curtailment
also affects the enjoyment of other related freedoms such as the freedoms of
opinion, conscience and of expression.
Amicus Curiae also
observed that Section 65 as amended severely limits the right of Members of
Parliament to associate with other groupings with objectives of a political
nature. The right to freedom of
association will be elusive, it was feared, if as amended Section 65 remains in
its present from. Referring to the United
Communist Party of Turkey and Others vs Turkey 133/1996/752/951, yet
another European Court of Human Rights case, where the Court observed that
political parties, as forms of associations, are essential to the proper
functioning of democracy, Amicus Curiae argued that association by
Members of Parliament with organizations of whatever objectives is a necessary
part of the development of a vibrant democratic society in this country and that
unfortunately that cannot be achieved in the face of Section 65 as amended.
Amicus Curiae made
it clear, however, that they were in no way advocating that the freedom of
association as given by Section 32 of the Constitution cannot be amended. They duly acknowledged that this can
certainly be done, but insisted that such can only be achieved in strict
compliance with the prescriptions of the Constitution. Per Section 44(2) of the Constitution and the
lucid decision of Hon. Justice Chikopa in The Republic vs Maggie Kaunda
Criminal Appeal No. 89 of 2001 (Mzuzu District Registry - unreported) the
limitations that can be placed on this right need to be prescribed by law, be
reasonable, be recognized by international human rights standards, and also be
necessary in an open and democratic society.
It was at this point the submission of Amicus Curiae
that as amended Section 65(1) does not meet the above prescriptions and that it
has simply swept away the rights of the people of Malawi under Section 32 and
that Members of Parliament are affected by that. The amendment in question was said to be too
wide and to be making it impossible for Members of Parliament to exercise their
rights under the said Section 32.
A Member of Parliament, as viewed by Amicus Curiae,
is a career politician and he is said to be at his best when he associates with
others and advances his cause. He should
thus be allowed to campaign freely, to change his ideas at will, and to lobby
for changes in policy and in the law. To
effectively do that he should have the liberty to join associations and
organizations, even with political objectives, in order to freely enjoy his
rights. Each time he
so joins an a ssociation or
organization
with objectives that are political in nature, however, Section 65(1) as amended
catches up with him and he is thereby denied his rights under Sections 32 and
40.
Amicus Curiae thus
believe that this is not in tandem with the values expected in a society that
is open and where democracy flourishes.
They submit that the amendment is not consistent with Section 32 of the
Constitution in that it has become a dangerous weapon against the full
enjoyment by a segment of the Malawian society of the rights accorded to them
by the Constitution. To the extent the
Court might indeed find the amendment herein inconsistent with Sections 32 and
40 of the Constitution, as urged by them, Amicus Curiae prayed for a
declaration of invalidity of that amendment.
Taking up the substantive arguments on the Originating
Summons on behalf of the defendants the Hon. Attorney General, Mr Fachi S.C,
first urged this Court to look at both the original and the amended versions of
Section 65. He pointed
out
that the concept of crossing the floor has always been there and he querried
why the Plaintiff and Amicus Curiae did not challenge it in its original
form. He submitted that they did not do so because they knew that it was proper
in a democratic State to control the behaviour and conduct of Members of
Parliament in this fashion.
It was further argued that the principle of crossing the
floor is not peculiar to Malawi. It is
recognized in many other countries including Tanzania, Ghana, Uganda, Zambia
Namibia, and India. Portions of the Constitutions of the countries cited bearing
on the subject of crossing the floor have all been made available to the Court.
Beyond this Mr Fachi SC, pointed out that the amendment
now challenged does not change the principle of crossing the floor, but merely
expands its application. Whereas originally
the principle was satisfied when a Member of Parliament voluntarily moved from
one political party represented in National Assembly to another political party
also represented there by voluntarily resigning from the one and then joining
the other, he/she now, however, equally crosses the floor by mere act of
resignation from the party under which he entered the National Assembly or by
simply joining another political party organization, or association whose
objectives or activities are political in nature.
Section 65, it was argued, does not affect the rights of
Malawians in general. It only affects
the rights of Members of Parliament who are elected on a party ticket. The Speaker, it was argued, only declares the
seat of such a Member of Parliament vacant, if he is satisfied that the
concerned member has taken the voluntary step of either resigning from his
political party, which has representation in the National Assembly or joining
another political party or an association or
an
organization with objectives or activities that are political in nature.
The Attorney General then made reference to a report of
the Law Commission at p. 268 of the Malawi Government Gazette of 16th November,
1998. The report in question emanated from the Law Commission on the Technical
Review of the Constitution and it touched on the issue of crossing the floor
and expressed concern that once Members of Parliament resigned from the party
under which they entered the National Assembly, propriety would demand that they
return to their Constituency to seek fresh mandate from the electorate. Agreeing with these observations and with the
recommendation to make resignation from or the joining of a political party
represented in the National Assembly operate as alternative modes of crossing
the floor, Section 65(1) was then amended to its present form.
All in all, in continued justification of the amendment,
the Attorney General contended that it is simply aimed at stopping Members of
Parliament from engaging in political prostitution by requiring them to seek
the fresh mandate of the electorate once they leave the party under which they
got elected or once they join other political parties or organizations or
associations covered by the amendment.
Turning to Section 32 on the freedom of association and to
Section 40 on political rights it was argued that although these freedoms are
guaranteed there are limits within which a Member of Parliament elected on a
party ticket can enjoy them. The Court
was here invited to in particular have regard to the fact that Section 40(1)
opens with the words “Subject to this Constitution.” The meaning of this, it was argued, is that
Section 65 being part of the Constitution, the enjoyment of rights under
Section 40 is subject to it too.
Per the holding is the Fred Nseula case (supra)
that the Constitution should not be so read as to allow for one part of it to
destroy another part of it, the enjoyment of rights under Section 40 by a
concerned Member of Parliament are subject to the provisions on crossing the
floor. It was thus submitted that there
is no conflict between Section 65(1), even as amended, with the freedoms
guaranteed by Sections 32 and 40 of the Constitution. On the contrary, it was argued that Section
65(1) rather enhances freedom of association and the right to make political
choices.
In case, however, the Court be of the view that S65(1) as
amended does limit or restrict the said freedoms, it was further submitted that
the said limitations or restrictions are justified and that they fall within
the test laid down by Section 44(2) of the Constitution. The argument offered here was that since
provisions similar to Section 65(1) exist in Constitutions of the different
countries earlier referred to, and these Constitutions also have Bills of
Rights enshrined in them, then our Section 65(1) in issue here should also be
seen to place on Sections 32 and 40 aforesaid restrictions or limitations that
are prescribed by law, that are reasonable, that are recognized by international
human rights standards and that they are necessary in an open and democratic
society. It was accordingly the stand of
the defendants that Section 65(1) as amended cannot be unconstitutional as the
plaintiff alleges.
The above substantive arguments of the defendants were
supplemented upon by both the Solicitor General, after he had concluded his
arguments on locus standi, and by the Assistant Chief Parliamentary
Draftsman, Mr Nyirenda, who mainly cited case authorities to back up the points
raised in the arguments of the Attorney General.
For the most part these supplementary arguments were meant
to add greater emphasis on the points the Attorney General covered, but did
also add a few other new points. One
such
point was the question whether the amendment of Section 65(1) really ought to
have been referred to a referendum before being effected. On this point Mr Matenje stood by the view of
the defendants that the amendment does not curtail the rights under Sections 32
and 40 of the Constitution and that as such
since S65 does not appear in the schedule of provisions to be amended
after reference to a referendum, it was accordingly amended in line with
Section 197 of the Constitution.
The other point Mr Matenje added was that even if this
Court ends up being satisfied that the amended S65(1) is unconstitutional, it
does not follow that the whole Sub-section should be rendered invalid. With reference to Section 5 of the
Constitution he argued that only such portion of the amended provision as the Court
would find to be inconsistent with the Constitution is what the Court can
declare to be invalid. He also made
reference to Section 11(3) of the Constitution which provides that where a
Court of law declares a piece of legislation to be invalid the Court may apply
such interpretation of that law as is consistent with the Constitution.
Beyond adding these two new points Mr Matenje otherwise
merely emphasized his belief that the amended S65(1) is mild when compared,
say, with the Indian constitutional provision on crossing the floor where even
voting contrary to his party’s line can cost a Member of Parliament his
seat. He thus felt that crossing the
floor here as covered by the amended S65(1) does not infringe the freedoms and
rights of Members of Parliament as complained about in this case.
As I earlier indicated when Mr Nyirenda took his turn to
address the Court it was mainly to link up the various points already
raised in the defendant’s substantive arguments with case authorities. I have carefully gone
through the presentation Mr Nyirenda made and matched it against the
authorities cited, copies of which were kindly supplied to the Court.
Mr Nyirenda’s arguments covered a wide area and, inter
alia, covered a contention for mutual sustainance of Sections 32, 40, and
65(1), citing Attorney General of the Gambia vs Momodou Jobe [1984] H.L.
689 as authority, a contention that the burden of proof lies on the plaintiff
to prove the unconstitutionality they allege in the amended S65(1), citing Attorney
General vs Morgan [1985] L.R.C. 770, a further contention that the argument
that the alleged indirect effect of S65(1)’s amendment on Sections 32
and 40 ought to have triggered a referendum does not hold water, citing Attorney
General of Trindad and Tobago and Another vs McLeod (1985) L.R.C.
(Const)81, among others.
Without necessarily wishing to repeat Mr Nyirenda’s every
argument, which as already indicated, was only building on what the Attorney
General and the Solicitor General had already presented, I should mention that
I have fully taken on board my consideration the sum total of the arguments
advanced on behalf of the defendants just as I have done likewise in respect of
the arguments concerning the other parties to the case.
As my above attempt to restate the three parties’
positions on the main issue in the case has served to demonstrate, with the
plaintiff and the Amicus Curiae standing on one side of it and the
defendants, standing on the other, it is clear that the parties herein do not see
eye to eye on the question whether the amendment to Section 65(1) herein is
indeed unconstitutional and invalid as alleged by the plaintiff. While the plaintiff and Amicus Curiae
insist that the amendment is not compatible with the principles held by the
Constitution before the amendment came on the scene, the defendants are as
adamant that no fault can be attached to the said amendment for it to deserve
the declaration of unconstitutionality and invalidity the
plaintiff
has sought against it from this Court. I
have thus spent ample time reading and considering the parties’ arguments and
the authorities they called in aid, apart from analysing the various
constitutional provisions that can help me to resolve the issue at hand.
I should begin by mentioning that I have noticed, in the
course of the arguments of the parties in this case the emergence of a number
of points requiring determination before I can come to the resolution of the
main issue. I should
therefore
try to resolve those points now one after the other as I advance towards the
final determination of the case.
It will be recalled that the case of Fred Nseula
(supra) has already featured highly in this case on different aspects of the
case. One such aspect is where it has
been quoted by all the parties to the case as authority for the proposition
that the Constitution must be read as a whole “without one provision destroying
the other but sustaining the other.” If I have followed the arguments of the
defendants clearly, especially as put forward by Mr Nyirenda, on this aspect
and in reliance on this authority, among others, it has been contended that the
amendment to Section 65(1) herein having passed and thus become part of the
Constitution, it is now too late for this Court to test it for
constitutionality. Being part of the
Constitution itself now, as I understood the argument, we cannot use other
parts of the Constitution to destroy it, but only to sustain it.
I would like to think that the argument I have just tried
to capture goes a bit too far in trying to protect the amendment now under
consideration. Carried to extremity the above argument is in effect suggesting
that amendments to the Constitution, once complete, cannot be touched by the
Courts because they immediately inherit or acquire the protection of the
doctrine not to be destroyed by sister parts of the Constitution they have just
become part of.
I must say that the way I understand the authority in the Fred
Nseula case in relation to this style of Constitutional construction
markedly differs from the way the defendants have, by their argument, suggested
that it be understood. In my view the
meaning of the dictum referred to in that case is that our Constitution having
come into provisional operation as I pointed out initially, the period of
twelve months allowed for wide-scale consultation, panel beating, and balancing
having successfully passed, and the provisions in the Constitution that
remained intact and those that were altered during the provisional period both
having definitely come into force at the end of that grace period, it is not
acceptable and not open that one day five years or so down the line Party A
wakes up and comes to Court to challenge the validity of one such surviving
part of the Constitution on basis that it is in conflict with another surviving
part of the same Constitution.
Thus if in this case on basis of the said authority, as I
understand it, it would not have been permissible for the plaintiff or anyone
else to come to Court any time after the Constitution had definitely come into
force to wage war between S65(1) in its original form as against Sections 32
and 40 or any other human rights provision in Chapter IV of the
Constitution. To however understand this
authority and to interpret it to mean that any or all other constitutional
amendments would escape challenge immediately they pass and become part of the
Constitution on basis that they must then be deemed to be in harmony with the
rest of the body of the Constitution they have just been attached to would be
to overstretch the limits of the authority.
Indeed in Minerva Mills Ltd and Others vs Union of India and
Others AIR 1980 SC 1789 the Courts did not out of hand dismiss a challenge
raised against the validity of the 42nd Amendment to the Constitution of
India. It was recognized in that case
that to the extent a Constitutional amendment itself damages or destroys the
basic
structure
of the Constitution, Courts would have power to declare it invalid.
In this case, as already made very clear by the plaintiff,
both orally and through the Originating Summons the relationship between the
original Section 65(1) and the human rights provisions in Chapter IV of the
Constitution, including sections 32 and 40, is no part of this case. That relationship would clearly enjoy the
protection the Fred Nseula case spoke of. The amendment carried out to S65(1) in 2001,
however, cannot escape scrutiny by merely being smuggled into the protection of
that authority when in fact it is not covered by the same.
Constitutional (Amendment) (No. 2) Act 2001 is, as far as
I am concerned, a piece of law that was passed separately and after the
original integral Constitution had already definitely come into force. Section 108(2) of the Constitution gives the
Court power to test any law, including this Amendment Act, for consistency with
the Constitution. I thus do not see any
legitimate obstacle to this Court so testing the amendment to this Section and
either rating it as constitutional and valid or as unconstitutional and invalid
to the extent of whatever inconsistency might be found. In short, therefore, I hold that Section 65(1) of the
Constitution, as amended, is not exempt from the scrutiny of this Court vis-a-vis
whether it fits in with the Constitution it was made to join.
One other issue that has arisen for determination in this
case as a component of the main issue is the question whether the amendment
carried out to Section 65(1) herein ought or ought not to have first been
submitted to a referendum before being undertaken. As already indicated at the outset the
Originating Summons seeks a declaration to the effect that the amendment in
question is unconstitutional and invalid.
As one
of
the means of showing that the amendment is indeed unconstitutional the
plaintiff has alleged that even the procedure adopted in passing it was
wrong. Having already recounted the
arguments the parties have made on this point it now is only really necessary
for me to refer to Sections 196 and 197 of the Constitution and to the schedule
to the Constitution, all of which are directly material in the resolution of
this contest.
As will be recalled, the argument the plaintiff has
offered in this regard comes to its conclusion rather circuitously. It claims the right to a referendum on the
amendment, not by direct assertion from the manner the Constitution has been
drawn, but by indirectly arguing that if the Court finds that the amendment in
question abridges the freedoms and rights provided by Section 32 and 40, then
it must be taken to be in effect also an amendment of those provisions, and
that since those provisions ought only
to be amended after consultation through a referendum, then by virtue of that
the amendment to Section 65(1) too ought to have been effected after a
referendum.
Granted that constitutional interpretation, as per the
authorities, including local ones, ought to be broad, liberal, and purposive,
it still strikes me that the style of catching the amendment to Section 65(1)
of the Constitution within the requirements for a prior referendum is very long
winded and opportunistic. Section 196,
as read with the schedule to the Constitution, is very clear on the provisions
it directs to be amended after first referring the proposed amendment to a
referendum. It very clearly covers
amendments to Sections 32 and 40, among others, but it also very clearly does
not cover Section 65 of the Constitution.
I thus understand this provision to mean
that where Parliament
wants to amend
Section
32 or Section 40 directly, it has no option but to comply with the requirement
of a prior referendum, unless it is otherwise proceeding by virtue of Section
196(3).
There is, it is to be noted, nothing in this provision
extending the referendum requirement to amendments that indirectly affect
rights arising from the provisions listed in the schedule. On this point I find the argument advanced on
behalf of the defendants based on the maxim expressio unius est exclusio
alterius i.e. the specific mention of one thing is the exclusion of the
other, quite compelling and appropriate.
Section 65(1) of the Constitution, I am convinced, was never intended by
the framers of the Constitution to be one of those provisions that would
require a referendum before they could be amended. Whatever effect the amendment of that
provision may or may not have on the rights and freedoms covered by the
Sections listed in the schedule, let that be judged on a plain test of whether or
not it is consistent with the spirit of the constitution as a whole. Section 65 of the Constitution the way I see
it cannot just find itself among provisions within the definite and fixed list
that has been set apart to be amended after a referendum, as appears in the
schedule, by sheer genius of deductive reasoning when it was never in the first
place intended to be there. I hold
accordingly, on this point, that the plaintiff’s argument which attributed
procedural impropriety to the amendment of Section 65(1), by claiming that the
major step of referendum consultation had been
skipped, is not valid and I dismiss it as lacking in merit.
The way the law stands, that provision could be amended
under Section 197 of the Constitution without need of any referendum.
Being so procedurally amended in line with that Section, however, is not
the end of the story. It certainly does
not mean that the amendment then becomes exempt from such testing of laws as
Sections 5, 46(1) and 108(2) of the Constitution permit vis-a-vis
consistency with the Constitution and so even if the amendment was done
procedurally the main question would still be pending in this matter.
I think I should next move to an interesting tug of war
which I witnessed between the parties for and the parties against the declaration
sought in this matter. Those for, i.e.
the plaintiff and Amicus Curiae argued that as amended S65(1) has eroded
or abridged the rights of Malawians, and in particular, the rights of Members
of Parliament vis-a-vis their enjoyment of the freedom of association
under Section 32 and of political rights as guaranteed under Section 40 of the
Constitution. The defendants, in their
turn, completely excluded Malawians in general from the effect of the amendment
and forcefully argued that the amendment in question only affects Members of
Parliament. In fact on the premise that,
if anything, this amendment only affects this smaller category of persons, and
the argument going along with this was that it is justifiable to put the
behaviour and conduct of these Members of Parliament under control, the
suggestion was that the plaintiff, in the circumstances, has no business poking
its nose into the amendment’s restriction of those minority rights, so to
speak.
As my ruling on locus standi clearly indicates the
Constitutional provisions on the subject of protection and enforcement of
fundamental rights and freedoms does not limit the right of access to the
Courts only to those whose rights have been infringed or threatened. A person who approaches a Court with a view
to merely protecting rights that are infringed or threatened need not
necessarily himself be the direct victim of that infringement or threat. My interpretation of the law on this point,
as will be recalled, was guided by the clear principles of constitutional
interpretation enunciated by the Supreme Court of Malawi in the Fred Nseula
case (supra) and in the Elections case (supra) and assisted by the High
Court decisions in the Thandiwe Okeke and Dr. Kamuzu Banda’s Environmental
Management Act cases.
Thus even if it were true that the amendment to Section
65(1) herein only affects Members of Parliament, if I did find in this case
that its effect is to unconstitutionally abridge those rights, it would not
matter that the rights infringed or under threat are only those of Members of
Parliament. On my finding of wide
constitutional locus standi for those seeking to enforce as well
as those seeking merely to protect infringements or threats to rights as
generally guaranteed by the Constitution, the plaintiff herein would not be
barred from prosecuting an action aimed at protecting the rights of Members of
Parliament.
This notwithstanding, I think it is dangerous, as the
defendants have seriously attempted to do, to exclusively limit the effect of
the amendment of Section 65(1) to Members of Parliament only. As I understand it a Member of Parliament is
a representative of the people in his constituency. He is elected into that office for a
purpose. He carries with him in his
discharge of the functions of that office the aspirations and interests of his
constituents. To empower him to do that
job most effectively must therefore have a direct positive bearing on the
expectations of his constituents. In the
same way, I take it, that to unduly restrain him in the performance of his
duties as a man of the people, assuming S65(1) does that, would also have a
direct negative bearing on the expectations of those same constituents. I accordingly do not agree with the argument
advanced by the defendants that Section 65(1) only affects Members of
Parliament who have secured their positions through a party ticket and not
Malawians in general.
On the contrary I think, while the first receptient of the
amendment’s effect is the Member of Parliament himself, it cannot be denied
that the interests of the people the said Representative stands for are also
clearly affected thereby. In any event I
have already found that even if it were true that the effect of the amendment
ends at the Members of Parliament, that would not affect the right of the
plaintiff to pursue its case.
Thus
the way I see this case the tug of war about who is and who is not affected by
the amended provision will have no effect if I should find that the amendment
went so far as not to be compatible with the Constitution.
One other point I need to address before I entertain the
main question in the case is the point raised in the arguments, concerning the
relationship between the amendment carried out to Section 65(1) of the
Constitution and the report carrying observations and recommendations of the
Law Commission on the Technical Review of the Constitution on the subject of
crossing the floor. I have studied the
material portions of the report in question alongside the amendment effected
and I have accordingly done some comparing and contrasting.
I do recall the Hon. Attorney General advising this Court
that the amendment to Section 65(1) was done after acceptance of the report of
the Law Commission. After carrying out the comparison I have just referred to
between the report cited and the resultant amendment, I must say that whereas
it is true that to some extent the amendment reflects the recommendations of
the Law Commission, in truth the amendment went much further than the said
recommendation. To make it look, as the
defendants tried to do, as if the amendment was largely the result of the
recommendation of the Law Commission is certainly not true. So also, in my view, to make it appear as if
the amendment was a mere expansion of the principle of crossing the floor and
that it was minor in degree, is equally not to give a correct impression of the
amendment in question.
Recalling to mind the observations and recommendations of
the Law Commission on the Technical Review of the Constitution, the idea they
suggested to the National Assembly was that it create two alternative modes of
crossing the floor in the National Assembly from the previously single mode
available. The building blocks for the
proposed two alternative
modes
were picked right from the then existing single mode and not from anywhere
else. The principle that legitimate
crossing of the floor which would entail loss of a seat in the Assembly and
which was initially selected to live side by side with the freedoms and rights
guaranteed in Chapter IV of the Constitution, as featured in the original
S65(1), was that involving a Member of Parliament who belonged to a political
party represented in the National Assembly at the time his election, switching
allegiance midway, to another political party also represented in the same
National Assembly.
The recommendation was that it should not make any
difference whether the Member of Parliament voluntarily resigns from his party
without joining another political party represented in the Assembly or he
simply joins such other political party represented in the Assembly without
formally resigning from his first party.
In either case the consideration was that the proper thing to do would
be for such individual to go back to the electorate to seek fresh mandate. Hence it was recommendend that on the
occurrence of either event he should be deemed to have crossed the floor and
qualified for the loss of his seat.
True the amendment that was carried out did accommodate
this recommendation, but it not only went further than the recommendation made,
but much further. As can be seen from
the amendment actually effected, having so taken care of the possible crossing
by Members of political parties represented in Parliament, the amendment stretched
the floor to outside the National Assembly.
It thus created a new form of crossing from a political party
represented in the National Assembly to any other political party if such a
member joined such party. Thus even if
the political party joined is not represented in Parliament and is, so to
speak, out in the cold, going out to join it caused the floor to follow you and
you crossed it on joining.
As if this was not enough the floor was additionally
stretched to organizations or associations that are not political parties and
which therefore have no prospect of being represented in the National
Assembly. As long as they are
organizations or associations with objectives or activities that are political in
nature, if a Member of Parliament belonging to
a
political party represented in Parliament joined one such organization or
association, he is equally deemed to have crossed the floor.
As can be seen the amendment effected is so wide. Whereas in its original form the proverbial
floor capable of being crossed by a Member of Parliament was only
available in the National Assembly and then only between members belonging to
political parties represented in that Assembly, the amended Section 65(1)
almost makes that floor magically available for crossing whenever and wherever
a Member of Parliament belonging to one of the political parties represented in
Parliament joins, inter alia, some organization or association with objectives
or activities that are political in nature.
During the hearing of the Originating Summons I was rather curious and I
thought after saying the National Assembly had accepted and acted on the
recommendation of the Law Commission that the Hon. Attorney General was going
to explain how the floor that was previously only available in the Assembly
ended up being made so readily available for crossing literally everywhere
outside the National Assembly. He did
not do so.
In fact the impression the Defence side throughout
projected in their arguments was that this amendment is a minor expansion of
the principle of crossing the floor and that it basically proceeded on a
recommendation of the Law Commission which recommendation this Court ought
certainly to show respect for. After
evaluating the amendment for what it truly is I completely reject the false
impression so persisted
in by
the defendants. It is my finding
therefore that whereas a link no doubt exists between the recommendation in the
report of the Law Commission on the Technical Review of the Constitution and the
amendment carried out to Section 65(1), this link is so remote and
insignificant that the defendants cannot fairly lay the responsibility of the
new S65(1) at the door of the Law Commission.
I find that they departed from that recommendation as much as they could
and this I have just demonstrated above.
The defendants, from the look of things, simply used the Law Commission
recommendation as a scape goat. They
otherwise went ahead to load the amendment with
species
of floor crossing from origins other than the Law Commission.
When the time comes I will duly assess whether these
expansive extensions and these stretches of the floor to anywhere literally
outside the National Assembly are in keeping with the intention of the framers
of the Constitution whose wisdom, per the original S65(1), only accepted and
incorporated a very limited form of crossing the floor. It is only then that I will be in a position
to determine the constitutionality of the amendment complained of. For now I simply want to make it quite plain
that the Law commission report cannot be used by the defendants as a shield and
a justification for this wholesale amendment that was effected herein, when
that recommendation, on comparison, was very narrow and very focused. I certainly therefore reject that contention.
I now finally come to the main issue in this Originating
Summons. The all encompassing question
to be answered following my hearing of all the lucid arguments of learned
Counsel as presented on behalf of the three parties in this case is whether as
alleged by the plaintiff, and as coincidentally supported by Amicus Curiae,
the amendment of Section 65(1)
of
the Constitution can really be said to be unconstitutional and invalid.
The first limb on which the plaintiff sought to rely for
this allegation, which sought to show that by not having first put the
amendment at the time of its proposal to a referendum Parliament procedurally
effected an invalid amendment, has failed as it will no doubt be recalled. There now therefore only remains the second
limb on which the plaintiff also proceeded to support its allegation. This was the point that, as amended, S65(1)
abridges the freedom of association in Section 32 and the political rights in
Section 40 and that it therefore offends the Constitution.
Considering the contents of Section 8 of the Constitution,
it follows that when enacting this constitutional (Amendment) (No. 2) Act of
2001, the legislature was supposed to reflect in its deliberations the
interests of all the people of Malawi and to further both the explicit and the
implicit values of the Constitution.
Further, as captured by paragraph (vi) of Section 12 of the Constitution
one, amongst the available constitutional principles in Malawi for general
guidance is that all institutions and persons are obliged to observe and uphold
the Constitution and the rule of law and that none of them is above the
law.
Section 15(1), also as earlier already seen, does not
mince words when it compels all organs of the government, including the
legislative, to respect and uphold the human rights and freedoms enshrined in
Chapter IV of the Constitution. Further,
as also already observed, Section 46(1) of the Constitution provides that unless
the Constitution itself so authorizes, inter alia, the National Assembly shall
not make any law which abolishes or abridges the fundamental rights and
freedoms conferred in Chapter IV on pain of any such law being invalid to the
extent it contravenes this prescription.
A question that readily comes to mind after this review of
constitutional provisions is whether in effecting the amendment of Section
65(1) now under consideration Parliament did bear in mind all the prescriptions
referred to above and emerge compliant with the Constitution. Admittedly crossing the floor is almost a
universal concept. It of course differs to some extent from country to country.
While it is true as claimed by the defendants that Tanzania, Ghana, Uganda,
Zambia, and India, among other countries have provisions covering this concept
in their Constitutions, and this I have verified from the portions of their
Constitutions which the defendants supplied to the Court, and while I accept
that these countries so have these provisions alongside bills of rights in the
same Constitutions encompassing freedom of association and political rights,
among others, upon doing another comparative analysis of these Constitutions
and our own I do find that while it would be true that our original S65(1) was
either just like these other provisions or milder than them I honestly cannot
say the same about our amended S65(1). Much as the Indian Constitution on the
whole sounds a bit more harsh in extending the concept of crossing the floor to
a member failing to vote according to the party line, at least the little merit
in that is that it touches on and refers to the conduct of a Member of
Parliament within the house where I
apprehend crossing the floor primarily applies to.
In general, from amongst the constitutional provisions
proffered for comparison, a uniform thread that transcends all of them is that
at least crossing the floor has been confined to movement of elected Members of
Parliament between political parties, especially those with representation in
Parliament. Our Constitution with S65(1)
in its original form was indeed comparable with these other Constitutions and
one can say it indeed stood on the mild side. The amendment to Section 65(1),
however, has been so radical and revolutionally that in effect it
has completely
uprooted our Constitution from the mild position it occupied to where it now
stands quite alone on the new concept it now holds on crossing the floor.
Definitely none of the other cited and supplied
Constitutions has dared to so stretch their floor to so far outside their
National Assemblies or Parliaments. By the amended S65(1) we have made
ourselves unique and lonesome by making it possible, out of the Assembly, to
have a floor awaiting to be crossed wherever a Member of Parliament belonging to
a Party represented in Parliament attempts to join an organization or
association believed to have objectives or activities that are political in
nature. It incidentally strikes me that
so stretching the floor anywhere and everywhere outside the House does not just
amount to an expansion of the principle of crossing the floor. It almost amounts to a complete abandonment
of the original principle and to an adoption of a completely new concept. Now whereas
it might possibly make some sense that when one joins another political
party it can be understood as some form of crossing, but where one has not
resigned form his party, has not joined another political party, has merely
joined an organization or an association, even one with objectives or activities
that are political in nature, how that should amount to a crossing of the floor
I sincerely fail to understand.
Much as the defendants would have me believe that the aim
of the amendment is merely to control the behaviour and conduct of Members of
Parliament, inclined towards what the Attorney General called political
prostitution, I do not see what prostitution would be involved in joining an
organization or an association which is not even a competing political
party. Comparing with these other countries,
whose Constitutions have been examined, Malawi must certainly be standing on a
lonely island now in conceiving this strange and ingenious kind of crossing the
floor. I see a heavy measure of
oppression or at
least
a heavy threat of oppression in a law that so changes the constitutional
atmosphere that was prevailing before it came into being, that it tends to
shadow a Member of Parliament wherever he goes and whatever he does, to
threaten him with possible loss of his seat should he dare join an organization
or association with objectives or activities that can be taken to be political
in nature.
Now certain organizations or associations may well be
development - oriented despite having objectives or activities that are
political in nature. Much as such
organizations or associations might be of help to the constituents of a Member
of Parliament belonging to a party represented in Parliament, with S65(1) as
amended in place, he will not join such an organization or association for fear
of losing his seat in the National Assembly.
In such a case his constituents, who are Malawians at large, are as much
disadvantaged by this amendment as he himself also is.
In fact the very phrase “objectives or activities that are
political in nature” appears to be such a wide and all - catching phrase, in my
view, that it will scare away the Member of Parliament even from organizations
and associations that are “pure” by any standards. Among the meanings applicable to the word
“Political” according to the Shorter Oxford English Dictionary one runs as
follows:-
“Of
belonging or pertaining to the State, its government and policy; public, civil;
of or pertaining to the science or art of politics.”
With
a definition as wide as this, it appears to me that most of what people do
everyday is political and that it would be very difficult to draw the line
between objectives or activities in life that are from those that are not
political. At this rate almost every
organization or association will somewhow or other have
a
political objective or activity and a Member of Parliament would lose his seat
if he joined it.
One can therefore see how wide, and I dare say wild, the
phrase “having objectives or activities that are political in nature” can
be. Indeed by adding the rider “in
nature” tends to even worsen the situation in that it seems to suggest that the
objectives or activities need not even be strictly political, as long as in
nature they appear to be such.
When the floor is so stretched beyond the usual limits of
the National Assembly, and when it extends so far out of the House that one can
cross it even if he is in the most remote part of the country, unlike the
defendants, I do not see this rather maverick dramma concerning the crossing of
the floor as a matter of genuine maintenance of discipline. Discipline of the sort of detail being chased
here, really should be mainly left to the Constitutions of the various
political parties concerned. To so make
that discipline the business of a National Constitution, in my humble view, is
about as good as degrading the number one law of the land to a mere party
document.
Stretching the floor so much out of the National Assembly
especially as regards Members of Parliament joining organizations and/or
associations, in my view, amounts to a gross interference with the enjoyment of
the freedom of association and of the exercise of political rights guaranteed
under Sections 32 and 40. The argument
from the defendants that in fact S65(1)
as amended actually promotes the enjoyment of such rights is almost perverse.
You do not promote enjoyment of constitutionally guaranteed rights by
threatening negative action unless you are sadistic.
There was argument that the limitation, if any, achieved
by the amended S65(1) as regards the freedoms and rights under Sections 32 and
40 passes the standards set for such limitations as provided for under Section
44(2) of the Constitution. To begin with
I apprehend that what Parliament set out to do when it embarked on the exercise
of amending Section 65(1) was to address whatever mischief it perceived needed
rectification under the original Section 65(1). Now assuming the mischief aimed
at was the one reflected in the report of the Law Commission, then most likely
upon accommodating that recommendation Parliament had achieved that
objective. When it hereafter went on a
floric to create the other rather puzzling categories of crossing the floor, it
certainly had gone beyond the concerns the Law Commission had professionally
pointed out to it in its report.
As they stand, the extended aspects of the amendment in
question are menacing and clearly oppressive.
I thus quite agree with the plaintiff that they severely restrict or at
the very minimum threaten restriction of the enjoyment of the freedom of
association and political rights generally to a far greater degree than the
framers of the Constitution had bargained for through their original
S65(1). This threat, as I earlier
observed, is not only held out by the amended Section against the Members of
Parliament likely to be affected, but also against the constituents they
represent.
In a free country like this I cannot call such a piece of
law reasonable. Also looking at the other comparable constitutional provisions
on crossing the floor from the various jurisdictions covered in the arguments
and seeing what a misfit our new provision has become in this comparison, I
certainly cannot say that our current provision on crossing the floor is
recognized by international human rights standards. If it was I believe it would have resembled
some of those other provisions. I
equally therefore cannot say that policing the movements and activities of a
Member of Parliament, who is a representative of the people, to this extreme
degree, through keeping him under constant threat of losing his seat if he
becomes daring and active, is a necessary species of surveillance in an open
and democratic society.
Whether or not when passing this amendment the legislature
had Sections 32 and 40 in contemplation, by virtue of Section 46(1) of the
Constitution, it was duty-bound to avoid either abrogating or abridging them or
any of the other fundamental rights and freedoms as conferred by Chapter IV of
the Constitution. In so creating an amendment that amounts to a monster by
holding a Member of Parliament to perpetual ransom of losing his seat if he
dares join organizations or associations which are not part of the National
Assembly but which might well turn out being found to have objectives or activities
that are political in nature, it severely abridges the freedoms and the rights
complained about, which are clearly in Chapter IV of the Constitution. As such, even if the legislature correctly
employed Section 197 of the Constitution to effect the amendment of Section
65(1), what it did is still contrary to Sections 8 and 46(1) of the
Constitution.
Despite my above finding, however, I am enjoined both by
the Constitution under Section 5 and Section 11(3) not to throw out the baby,
or at any rate the entire baby, with the bath water. These provisions, especially the latter,
basically in the spirit of the maxim ut res magis valeat quam
pereat urges me to salvage innocent parts from the offending amendment i.e.
to save those parts that do not impinge on or
threaten the rights that have
since been abridged by the totality of the amendment.
As I see it the amendment as proposed by the Law
Commission and as backed by the observations that accompanied the
recommendation, geared as it was at respecting the voice of the electorate in
the defined circumstances the recommendation was applicable to, was quite sound
and democratic for the Malawian society.
The extensions, however, which were apparently added just to ride on the
back of this professional recommendation, as seen above, are the ones that have
abridged the fundamental rights
and
freedoms now standing affected at Sections 32 and 40 of the Constitution. Accordingly it is only these extra
extensions, that stretch the floor to outside the National Assembly, by
extending the concept of crossing the floor to the joining of political parties
not represented in the National Assembly or to the joining of organizations or
Associations with objectives or
activities
that are political in nature, that I ought to strike out of the amendment.
On authority of Sections 5 and 11(3) of the Constitution
therefore the amendment capturing the voluntary resignation by a Member of
Parliament from a party represented in the National Assembly and/or the joining
of a political party represented in the National Assembly by a Member of
Parliament who belonged to another political party also so represented in the
said Assembly at the time of his election must be saved and it will therefore
survive. Accordingly therefore, having
in terms of the jurisdiction of this Court under Section 108(2) of the
Constitution reviewed and found the amendment to Section 65(1) of the
Constitution, as embodied in Act No. 8 of 2001, being constitutional
(Amendment) (No. 2) Act of 2001, in terms of S5 of the Consititution
inconsistent with the Constitution, only to the extent where it deems the
joining of any other political party, or the joining of any association or
organization whose objectives or activities are political in nature to amount
to a crossing of the floor, I now duly declare the same unconstitutional and
invalid, as prayed. The Originating Summons herein thus succeeds with costs.
Pronounced in
open Court this 6th day of October, 2003 at Blantyre.
A.C.
Chipeta
JUDGE