IN THE MALAWI SUPREME COURT OF APPEAL
AT BLANTYRE
M.S.C.A CIVIL APPEAL NO. 12 OF 1999
(Being High Court Civil Cause No. 55 of
1998)
BETWEEN:
CIVIL LIBERTIES
COMMITTEE.....................................…APPELLANT
-vs-
THE MINISTER OF JUSTICE...................................1st
RESPONDENT
- and -
REGISTRAR GENERAL
..........................................2nd RESPONDENT
BEFORE: THE HONOURABLE THE CHIEF JUSTICE
THE HONOURABLE JUSTICE TAMBALA, JA
THE HONOURABLE JUSTICE MSOSA, JA
Kasambala, of Counsel for the Appellant
Nyirenda, of Counsel for the
Respondents
Ntaba (Miss), of Counsel for the
Respondents
Beni, Official Court Interpreter
J U D G M E N
T
Tambala,
JA
The appellant is Civil
Liberties Committee. It is a human
rights non-governmental organization, duly registered according to the relevant
laws of this country. The respondents
are the Registrar General and the Minister of Justice. The appellant commenced proceedings in the
High Court for judicial review of the decision of the Registrar General which -
1. Cancelled the registration certificate of
an organization called Chikonzero Communications;
2. Banned the publication, printing and
distribution of a newspaper know as The National Agenda, and;
3. Ordered that the printing, publication or
distribution of The National Agenda would be a criminal offence.
Leave to apply for judicial
review was granted ex-parte by Mwaungulu, J.
During the hearing of the substantive application, the learned Solicitor
General representing the respondents raised three preliminary issues one of
which was that the appellant lacked sufficient interest in the matter and was
therefore unable to establish locus standi. Tembo, J., who heard the application in the court below, isolated
and considered separately the issue of locus standi. Ultimately, the learned Judge came to the
conclusion that the appellant lacked locus standi and dismissed the
application. The present appeal is
against that decision.
The appellant submitted
three grounds of appeal as follows -
“3.1
The trial judge erred in law in construing sections 15 and 46 of the
Constitution holding the said section prescribes locus standi for
application of violation of fundamental human rights contained in Chapter IV of
the Constitution.
3.2
The trial judge erred in law in holding that CILIC had no locus standi
in the matter as it had failed to prove that any of its rights or freedoms had
been violated.
3.3
The trial judge erred in holding that sections 15 and 46 of the Constitution do
not confer on the courts the power to exercise the room for public interest
litigation at the instance of human rights NGOs in respect of violation of human rights enshrined in Chapter IV of
the Constitution.”
The respondents vigorously
resist the appeal.
Counsel representing the
parties in the present appeal submitted lengthy written as well as oral
arguments before this court. In
reaching our decision in the present appeal we considered fully counsel’s
arguments as they related to issues of both fact and law. However we do not intend to consider the
appellant’s grounds of appeal in the order in
which they were presented before this court. We shall consider them together and in the manner in which we
consider to be suitable.
As a general rule, a person
who commences an action in a court of
law is required to have locus standi in the subject matter of the
action. This requirement is so basic
that we sometimes take it for granted that a person who has no legal right or
interest to protect would not commence an action in a court of law. Courts exist to conduct serious
business. They deal with real live
issues affecting parties to an action.
A person comes to court to commence an action because he believes that
the defendant, through negligent driving, has caused personal injury to him
or has damaged his vehicle. A person may bring an action alleging that
the defendant has failed to deliver to him goods the subject of a contract of
sale or that the defendant has trespassed on his land; or that effluent from
the defendant’s premises has invaded
his house. Clearly, in the field of
private law a plaintiff is required to establish locus standi which is
usually defined by the defendant’s conduct which affects adversely the
plaintiff’s legal right or interest.
In the field of public law
the right to commence an action may similarly depend upon unlawful conduct or
abuse of power on the part of a public authority which adversely affects the
plaintiff’s right, interest or legitimate expectation. Thus a plaintiff may allege that his house
was pulled down or his farm was taken away to give way for the construction of
a modern highway or airport. The
plaintiff may, therefore, seek fair and adequate compensation. However, a breach of public duty or a
failure to properly exercise statutory powers may adversely affect the general
public. In that situation a plaintiff
would have locus standing if he can show that he has suffered damage of a
special kind or greater degree than that suffered by the rest of the members of
the public. In public nuisance, for
instance, a private plaintiff would successfully apply to the court for an
injunction to stop the nuisance if he can prove special damage or greater
damage than that suffered by the other members of the public. See Boyce v.
Paddington Borough Council [1903] 1 Ch. 109.
Again in the field of public
law, the statute which lays down the duties and powers of public officials and
statutory authorities usually defines how such duties and powers may be
exercised. The same statute would
indicate who would be entitled to bring an action to enforce the proper
carrying out and exercise of such
duties and powers. The issue of locus
standi may be resolved by the examination and interpretation of the
relevant statute.
Judicial review proceedings
are governed by Order 53 of the Rules of the Supreme Court. Rules 3-(1) and 3-(7) are relevant and they
provide -
3-(1) No application for
judicial review shall be made unless the leave of the Court has been obtained
in accordance with this rule
3-(7) The Court shall not
grant leave unless it considers that the applicant has a sufficient interest
in the matter to which the application relates.
There have been calls for
the relaxation of the rule requiring that only those persons who can establish
a personal stake in the outcome of an action are entitled to commence legal proceedings in a court of law. The calls have become loud with the
appearance on the local community of non governmental organizations which focus
their attention on human rights issues.
Persons and institutions who advocate public interest litigation, actio
popularis, have added their voice to calls for reformation of the law on locus
standi to allow persons who cannot establish a legal right or interest in
the subject matter of the legal proceedings to have a right to commence an
action. Curiously it is the usually
conservative English common law judges who have responded positively to such
calls. In this judgment, we shall briefly
examine how far the common law has gone in reforming the law relating to locus
standi.
The most radical statement
relating to the relaxation of the strict rule of locus standi was made
by Lord Diplock in the case of R.V. Inland Revenue Commissioners, ex-parte:
National Federation of Self - Employed and Small Businesses Limited
[1982] A.C. 617. At page 654 the
eminent Lord Justice 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.”
The Inland Revenue
Commissioners’ case also established the proposition that except in a simple
and straightforward case, locus standi should not be considered
separately as a preliminary issue, but it must be considered in the factual and
legal context of the whole case. The suggestion here is that the merits of the plaintiff’s case must
have a strong bearing on the question whether or not the plaintiff possesses locus
standi.
How far the English Courts
have, in practice, gone in lowering the threshold for establishing locus
standi, is demonstrated by the case of Regina v. Secretary of State for
Foreign and Commonwealth Affairs Ex-parte World Development Movement
Limited. (1995) 1 W.L.R. 386.
In that case, about July, 1991
the United Kingdom Government made a decision to grant aid to the Government of
Malaysia. The aid was worth £316
million. It was for the purpose of
construction by the recipient country a dam on Pergau river. The dam was intended to generate
hydro-electric power. The decision to
grant the aid was made against expert advice which was to the effect that the
project to construct the Dam was uneconomic and that the people of Malaysia
would not benefit much from the assistance.
It appeared that in making the decision, political considerations,
rather than economic factors, played a dominant role.
A pressure group called
World Development Movement was able to challenge in Court the legality of the
decision to grant the aid to Malaysia.
The members and supporters of the pressure group had a direct interest
in ensuring that funds earmarked for development aid by the Government of the
United Kingdom were used for genuine purposes and that development went to
where it was most needed. They sought
to represent the interests of people in developing countries who might benefit
from development funds which otherwise might go elsewhere. The World Development Movement succeeded in
obtaining, by means of judicial review, a declaration that the British
Government’s decision to grant financial assistance to Malaysia was, in the
circumstances, unlawful.
To bring an action in
judicial review the World Development Movement had to establish that it had sufficient
interest in the decision by the British Government to grant aid to
Malaysia. The High Court in England,
Queen’s Bench Division, held that the question of standing went to the
jurisdiction of the court and that it should not be treated as a preliminary
issue, but that it should be considered in the legal and factual context of the
whole case; it was also decided that the merits of the case are an important,
if not dominant, factor when considering standing and that significant factors
pointing to the conclusion that the applicants had sufficient interest
within section 31(3) of the Supreme Court Act 1981 and R.S.C. Ord. 53, r. 3(7)
were -
i. The importance of vindicating the rule
of law;
ii. The importance of the issue raised;
iii. The likely absence of any other
responsible challenger;
iv. The nature of the breach of duty against
which relief was sought, and;
v. The prominent role of the applicants in
giving advice, guidance and assistance regarding aid.
The court came to the conclusion that
World Development Movement had locus standi, notwithstanding that none
of its legal right or interest was violated by the British Government’s
decision to grant aid to Malaysia.
The American
jurisprudence in relation to the law on
standing is conservative and uncompromising.
In the American case of Sierra Club v. Morton (1922) 405
U.S. 727, the applicant, a club whose objects were the conservation and
protection of the environment failed to establish standing since the club or
any of its members could not show that any legal right or interest of any of
the club members would be violated by the conduct of the respondent. The case of Fairchilds v. Hughes
(1921) 258 US 126 is to the same effect.
The American legal position
is therefore that in order for a plaintiff to have standing he must show that
the defendant’s conduct violates his legal right or interest. A right or interest which he possesses in
common with the rest of the members of the general public will be insufficient
to ground locus standi for a private plaintiff. In America, this legal position has its
roots in the Constitution.
The legal position in Europe
and according to the European Convention on Human Rights and Fundamental
Freedoms, is that standing is only available to a plaintiff who can establish a
violation of his or her legal right or interest. It is the victim of a wrong who is entitled to commence an
action to redress the wrong. The
learned authors WADE and FORSYTH OF ADMINISTRATIVE LAW, eighth edition, at page
688, state -
“The
progressive relaxation of the rules about standing is not reflected in the law
of European Human Rights.... They disallow actions by representative bodies on
behalf of their members, so that the numerous English examples of successful claims by trade unions; environmental
bodies and amenity societies have no European counterparts. Claims under the European Convention on
Human Rights, incorporated in similar words by the Human Rights Act 1998, can
be made only by a victim who has himself suffered a wrong.” (emphasis
supplied)
The African Commission on
Human and People’s Rights takes its queue behind the European Convention on Human
Rights and uses the same standard for standing. It allows only a victim of a violation of a human right or
freedom, protected by the African Charter on Human and Peoples’ Rights, to
submit a claim to the African Commission.
Actios popularis are not entertained by the Commission.
The strict conservative rule
governing standing exists in a number of other Commonwealth countries. In the case of Richards and Another v.
Governor General and Attorney General Commonwealth Law Bulletin, vol. 16
No. 2, April, 1990 at p. 446-448 the two plaintiffs, in their capacity as
taxpayers and voters brought an action against the Governor General and
Attorney General of the State of St. Vincent and St. Grenadines for a
declaration that the State’s House of Assembly was not properly constituted; it
did not have the required additional two senators appointed from among members
of the opposition. The respondents
successfully resisted the action on the ground that the plaintiffs lacked
standing. The court said -
“.........as I understand s.96(5) of the Constitution before I can hold that these two plaintiffs have a ‘relevant interest’ in order to invoke the jurisdiction of the Court under s.96(1), I have to be satisfied on the evidence admissible by law, not only that the plaintiffs are registered voters or taxpayers but also, that whatever contravention they allege is such as to affect their respective interests. I have done a fine toothcomb reading of the admissible evidence as disclosed in the affidavit of these plaintiffs and I can find no evidence to give them the crank start they need in order to put S.96(1) in motion. All their affidavits tell me is that as voters and taxpayers, the Court should answer the questions, because they want to be sure that they are taxed by an authority which is properly constituted. Nowhere in the evidence can it be said that these plaintiffs are saying that their interests have been affected. To my mind, in the context of the proceedings that are presently before the court, what the plaintiffs have done is to invite the court to give an advisory opinion on matters relating to certain provisions of the Constitution, or to give advice in hypothetical matter which this court, as a matter of law, is not permitted to do under these circumstances.” See, Commonwealth Law Bulletin, Vol. 16, No. 2, April, 1990 at 446-448.
Then, in the case of Australian
Conservation Foundation v. The Commonwealth (1980) 146 C.L.R. 493, the
Court in Australia considered the question whether the plaintiff, a non-governmental
organization concerned with matters relating to the conservation and protection
of the environment, possessed the necessary locus standi to pursue a
legal action. In order to possess locus
standi a plaintiff was required to have a real interest or a substantial
interest in the subject matter of the action.
The court stated -
“A
person is not interested within the meaning of the rules unless he is likely to
gain some advantage, other than the satisfaction of righting a wrong, upholding
a principle or winning a contest, if his action succeeds or to suffer some
disadvantage, other than a sense of some grievance or a debt for costs, if his
action fails. A belief, however
strongly felt, that the law generally, or a particular law should be observed,
or that conduct of a particular kind should be prevented, does not suffice to
give its possessor locus standi. If that were not so, the rule requiring special interest would be
meaningless.”
It was further stated, in the Court of
Appeal -
“...the action was not brought by the Foundation to assert a private right. It is brought to prevent what is alleged to be a public wrong. The wrong is not one that causes or threatens to cause damage to the Foundation or affects or threatens to affect the interests of the Foundation in any material way. The Foundation seeks to enforce the public law as a matter of principle as part of an endeavour to achieve its objects and to uphold the values which it was formed to promote. The question is whether in these circumstances it has standing to sue. It is quite clear that an ordinary member of the public who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty.”
Clearly the two cases establish that,
in the field of public law, a private plaintiff can establish standing to bring
an action if he can show that the conduct or decision of the defendant
adversely affects his legal right or interest.
A strong belief or conviction that the law generally or a particular law
should be observed, or that conduct of a particular kind should be prevented is
not sufficient to ground standing. They
also establish that an ordinary member of the public who has no interest other
than that which any member of the public has in upholding the law, has no
standing to sue to prevent the violation of a public right or to enforce the
performance of a public duty. The two
cases further express the view that a strong desire to enforce public law as a
matter of principle or as part of an effort to achieve the objects of a
particular organization and to uphold the values which it was formed to promote
is not sufficient to establish locus standi to commence an action.
Finally the two cases from countries of the Commonwealth support the view that,
in public law, locus standi is a jurisdictional issue.
After conducting a survey of
the current legal position and status of locus standi in the area of
public law in the United States of America and some Commonwealth countries, it
is now pertinent to examine the current status of the law relating to
standing on the local scene. The
starting point would be the Malawi Supreme Court of Appeal case of The Attorney
General v. The Malawi Congress Party and Others M.S.C.A. Civil Appeal No.
22 of 1996. In a lucid and eloquent
judgment Mtegha, J.A., stated at page 39 -
“The
Constitution expressly provides tests of locus standi so as to
identify those persons who can, and who cannot, institute proceedings for
breaches of the Constitution. The
relevant sections are ss. 15(2), 41 (3) and 46 (2). Locus Standi is a
jurisdictional issue. It is a rule of
equity that a person cannot maintain a suit or action unless he has an interest
in the subject of it, that is to say, unless he stands in a sufficient close
relation to it so as to give him a right which requires protection or
infringement of which he brings the action.”
Then at page 40, the learned
Justice of Appeal continued -
“Dr.
Ntaba and Mr. Chimango cannot rely on S.15(2) of the Constitution, as they have
no sufficient or any interest in the alleged violation of human rights of which
complaint is made. Nor can the
respondents place reliance on S.46(2) of the Constitution. Although it is true that this provision
refers to a person complaining that “a” fundamental right or freedom has been
infringed, this cannot mean that any person can complain about an infringement
affecting other person, otherwise it would conflict with the provisions of
S.15(2) of the Constitution.”
The next local authority on the issue
of standing is The President of Malawi and Another v. Kachere and Others M.S.C.A.
Civil Appeal No. 20 of 1995. Again, Mtegha, Justice of Appeal stated at page
10 of the judgment -
“A
person who has no sufficient interest in the matter has no right to ask a court
of law to give him a declaratory judgment.
He must have a legal right or substantial interest in the matter in
which he seeks a declaration. “Sufficient interest” is the one which is over
and above the general interest.”
The High Court case of United
Democratic Front v. The Attorney General Civil Cause No. 11 of 1994
also supports the view expressed in the two cases of The Attorney General v.
The Malawi Congress Party and Others and The President v. Kachere and Others.
It is clear that the
principles which the Courts in Malawi follow in determining whether locus
standi exists, as illustrated by the three cases which we have examined are
very similar to those expressed in the case of Richards and Another v.
Governor General and Another and also the case of Australian
Conservation Foundation v. The Commonwealth. But the cases of Attorney General v. Malawi Congress Party
and Others and The President of Malawi and Another v. Kachere and Others
stress the constitutional requirement to show sufficient interest for
the purpose of establishing standing.
It may be pertinent at this
stage to comment on a recent High Court decision in which Chipeta, J., deliberately
refused to follow local case authorities, discussed above, bearing on the issue
of locus standi. The relevant
case is the Registered Trustees of The Public Affairs Committee v. The
Attorney General and Another Civil Cause No. 1861 of 2003. The learned Judge’s reasons for rejecting
the local authorities are stated at page 28 of the judgment. The honourable Judge states -
“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 (sic)
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 Press Trust
cases it would not be far from the truth to say that the Supreme Court did not
then practice what it had since then been preaching about avoiding narrow
legalistic and pedantic ways of interpreting constitutional provisions.”
The first observation we
wish to make is that it is unclear what standard for locus standi was
the learned Judge in Public Affairs Committee v. Attorney General
advocating. We do not wish to believe
that because of the wording of section 46(2) of the Constitution it can be said
that the Malawi Constitution totally removed the requirement for a plaintiff to
establish standing before commencing a suit.
Does the learned Judge say that section 46(2) renders the concept of locus
standi so irrelevant in Malawi, in the field of public law, that literally
any person even those persons who have no legal right or interest of their own
to protect can access the court and commence a legal action? Is it realistic or desirable that a person
should be allowed to rush to court to commence a suit, while being carried on
the wings of a claim belonging to another person?
We have pointed out that all
that the Malawi Supreme Court did in the Kachere and Press Trust cases
was to stress the standard of sufficient interest in determining the
question whether a plaintiff has standing.
In so doing the court was giving full meaning and effect to the
provisions of sections 15(2) and 41(3) of the Constitution. It is the view of the court that s.41(3)
requires that a person who seeks an effective remedy from a court must
establish that his right or freedom has been violated. Section 41(3) provides -
“Every
person shall have the right to an effective remedy by a court of law or
tribunal for acts violating the rights and freedoms granted to him by
this constitution or any other law.
(emphasis supplied.)”
We find it unacceptable that the
wording of s.46(2) takes away the requirement for a plaintiff to demonstrate
that the conduct of the defendant violates a right or freedom granted to him by
the Constitution or some other law. We
also find it unacceptable that section 46(2) has the effect of destroying the
test of sufficient interest for determining locus standi. To so hold would be allowing one section to
operate to destroy the provisions of another section of the Constitution and
that cannot be, in our view, the intention of those eminent men and women who
drafted our Constitution. The Malawi
Supreme Court of Appeal was clearly aware that if section 46(2) is literally
and casually interpreted it would have the effect of destroying the full
meaning and impact of sections 15(2) and 41(3) of the Constitution. That is why that court said at page 40 of
the Press Trust case -
“Although
it is true that this provision refers to a person complaining that a
fundamental right or freedom has been infringed, this cannot mean that any
person can complain about an infringement affecting other persons, otherwise it
would conflict with the provisions of s.15(2) of the Constitution.”
We take the view that Chipeta, J.,’s
interpretation of s.46(2) of the Constitution in the Public Affairs
Committee’s case was too simplistic and casual that it could not be
correct. By destroying the concept of locus
standi and rendering it totally irrelevant the learned Judge’s construction
of the section produced a result which, we strongly believe, was not intended
by the distinguished women and men who drafted our Constitution.
We wish to make it very clear
that there is no reason to make apology for affirming the standard of sufficient
interest for determining locus standi, in the field of public
law. It is the standard which the
eminent Lord Justices in England use: see Regina v. Secretary for Foreign
and Commonwealth Affairs ex-parte World Development Movement (supra).
It is true that the concept has undergone some reform and what constitutes
sufficient interest is liberally interpreted.
Nevertheless, according to the World Development Movement case a
plaintiff is still required to establish locus standi by meeting the
criteria laid down in that case; that criteria includes the absence of another
responsible challenger and the role of the plaintiff in relation to the subject
matter of the action. We take the view
that that is fundamentally different from the total abandonment of the concept
of locus standi, a result which has been achieved by Chipeta J.’s
literal interpretation of the words any person contained in s.46(2).
The concept of locus standi, expressed in terms of sufficient
interest, special or substantial interest or existence of a legal
right or interest in the outcome of a suit should not be misunderstood as
failure to promote or respect human rights.
Respectable democracies renowned for their respect of human rights such
as United States of America, some Commonwealth countries including Australia
and a number of countries which are parties to the European Convention on Human
Rights and Fundamental Freedoms require locus standi expressed in the
standard as earlier discussed. Would it
be sensible to suggest as Chipeta, J., does that the judiciaries in these
countries cling hard to a narrow, legalistic and pedantic version of locus
standi? The Americans are so proud
of their version of locus standi that they entrenched it in their
Constitution. There is no justification
for us to be too shy to express frankly the idea of sufficient interest
as a standard for locus standi which our Constitution provides.
The appellants made
application, in the court below, for judicial review of the decision of the
Registrar General. Order 53 rule 3-(7)
of Rules of Supreme Court requires that the applicant for judicial review must
have sufficient interest in the subject matter of the application before leave
to proceed with the application is granted.
It is clear to us that a plaintiff who brings an action by means of
judicial review procedure is required to establish locus standi, by the
same standard of sufficient interest: see Regina v. Secretary for Foreign
Affairs ex-parte World Development Movementsupra. It would, therefore, appear to us that even if section 46(2) of
the Constitution is literally interpreted in the manner that Chipeta, J., did
in the Public Affairs Committee’s case, rule 3-(7) of Order 53 of the Rules of
the Supreme Court would legitimately limit the effect of the provision by
requiring that a plaintiff who wishes to access the court in reliance of
section 46(2) must establish sufficient interest in the subject matter
of the suit, before he or she can be assisted by the court. The appellant could not, therefore, avoid
the need to show locus standi in the form of sufficient interest, whether
section 46(2) is interpreted literally and in complete isolation from the rest
of the provisions of the Constitution as Chipeta, J., did in the Public
Affairs Committee’s case, or it is liberally interpreted in the light of
the other relevant provisions of the Constitution and after giving full effect
and meaning to those other provisions, as it was recommended inthe case of Attorney
General v. Fred Nseula and Another M.S.C.A. Civil Appeal No. 32 of 1997
(unreported).
There was insufficient
evidence in the court below which could establish that the appellant possessed sufficient
interest in the subject matter of the suit which they brought or in the
outcome of such suit. The appellant had
an erroneous view that section 46(2) makes proof of locus standi in the form of
sufficient interest completely unnecessary and irrelevant. All that they told the court below was that
they are a registered body established to promote, protect and enforce
human rights, democracy and the rule of law.
In the Australian Conservation Foundation case there is dicta to
the effect that a desire to enforce the public law as a matter of principle and
as part of an endeavour to achieve the objects and uphold the values for which
a pressure group was formed is insufficient for purposes of establishing locus
standi. We, therefore, take the
view that the interest of the appellant in the subject matter of the
proceedings which they commenced or the outcome of such proceedings was too
remote to enable them to possess the necessary locus standi.
It is the view of this court
that the appellant is unable to establish locus standi even upon a
liberal interpretation of the term sufficient interest recommended in
the World Development Movement case. According to that case the court
must consider inter alia the absence of another responsible person or
organization that can bring an action to challenge the decision in question;
the court must also consider the role of the applicant in relation to the
subject matter of the action. We are
not satisfied that the appellant has satisfied these two requirements. We agree with the respondents that there are
available the registered owners of Chikonzero Communications who can
rightly bring the action against the respondent. The appellant is unable to explain why the persons who are
alleged to have suffered from the conduct of the respondenst are silent. The appellant is not bringing the action on
behalf of the registered owners of Chikonzero Communications. It has not received instructions to act on
behalf of the victim of the alleged unlawful conduct of the respondent.
There are other organizations
which could, in our view, successfully show that they possess the required
sufficient interest in the subject matter or outcome of the present
action. The proper organizations would
include the Media Council of Malawi, the National Media Institute of Southern
Africa (Namisa) and the Journalists Association of Malawi (Jama). These organizations, unlike the appellant,
are specifically concerned with the rights and freedoms relating to the press,
and we are of the view that such organizations could successfully claim sufficient
interest in terms of section 15(2) of the Constitution.
Chipeta, J, fully
appreciated that the decisions of Malawi Supreme Court of Appeal in the Kachere’s
case and the Press Trust case were binding upon him, but he
nevertheless refused to follow them. He
preferred a decision on the issue of locus standi which totally contradicted
the two cases. That, professionally, is
wrong and unacceptable. To those
judicial officers who deliberately refuse to accept the binding authority of
decisions of superior courts Banda, C.J., as he then was said -
“The
question of whether the Office of the President was public office was
considered in the case of the President of Malawi and the Speaker v. R.B.
Kachere, M.S.C.A. Civil Appeal No. 20 of 1995.
It was held in that case that the Office of the President and the
Speaker is a Political Office and not a public office. We have been informed by Counsel for the
first respondent that he cited that case in the court below. The learned Judge made no reference to that
case in his judgment. It was binding on
the learned Judge in the court below.
It was a decision of the final court of Appeal in the country and he was
bound to follow it. Although he would
have been entitled to express any reservations he might have about it or could
have distinguished it if he could from the case before him. It is important that the principle of stare
decisis should be followed. Forit creates certainty and also provides
orderly development of the law. See Attorney General v. Fred Nseula and
Another supra.”
It is our hope that the learned Judge
in the Public Affairs Committee’s case will listen and accept that message.
For the various reasons
stated in this judgment, we are unable to find any fault with the decision of
the learned Judge in the court below.
We uphold the judgment of the court below. The present appeal is therefore dismissed with costs.
Delivered in Open Court this 8th day
of April, 2004 at Blantyre.
Signed................................
L.E. Unyolo, CJ
Signed.................................
D.G. Tambala, JA
Signed..................................
A.S.E. Msosa, JA