THE ‘CONSTITUTIONAL COURT’ : Do you want to restore Factory Settings?
MALAWIANS : Yes!
Such were the buttons that were at the centre of transactions following the preliminary court ruling yesterday in our beloved capital. In this opinion, I rise to deal with the inconceivable perspective that our dear law professor, who is a Dean of the Law Faculty at University of Cape Town, has shown to hold over this case. I also stand to deal with the unprofitable suggestion by our beloved Attorney General who has endeavoured to continue in his efforts to throw wood logs, metal bars and everything into the wheels of justice by way of his intended appeal against the preliminary adjudication.
The preliminary adjudication has pronounced that the MEC and Peter Mutharika’s applications, to have the case petitioned by UTM and MCP dismissed, are unsustainable and have been, themselves, dismissed – giving way to the case’s continuation to its substantive hearing stage.
In my exercise today, before turning to professor Danwood and Attorney General Kaphale, let me begin by dealing with popular questions existing at the pivot of this case:
Can the ruling of the Constitutional Court be appealed against? Can the Attorney General (or in short anyone at all) appeal against ruling from a preliminary hearing? These questions have been put forward to address the speculations that the ruling from preliminary hearings cannot be appealed against unless it is a final ruling arising from a substantive hearing of a case. Another group of people is arguing (or let’s say speculating) that a ruling by the Constitutional Court cannot be appealed against. I will be frank and impartial.
I wish to emphasized here that unlike in other countries where a Constitutional Court (Concourt) is expressly established by the Constitution or an Act of the Legislature, in Malawi’s constitutional law framework; there is no Constitutional Court in that sense. Normally, when there is a Concourt duly established by the governing laws, such a court has its own slot above the Supreme Court of Appeal within the hierarchy of the courts. Examples are South Africa and Kenya just to mention two. That arrangement gives the effect that the Concourt is the highest court on constitutional matters and enjoys monopoly of decision on both preliminary and substantive matters that are constitutional in nature. Once a matter has been determined to be of the Concourt’s jurisdiction and it gets dealt with at that space, there is no scope for appeal.
However, in Malawi, ours is a different scenario whereby neither the Constitution nor any Act known to our Constitution establishes the Concourt. What is (erroneously or casually) referred to as the Concourt in Malawi is a mere arrangement arising from the Courts Act. Originally under Section 9 of the Courts Act, all proceedings in the High Court were heard and disposed of by a single judge. However, in 2003, section 9 of the said Courts Act was amended, whereupon Section 9(2) became to exist with the following reading:
“Every proceeding in the High Court and all business arising there out, if it expressly and substantively relates to, or concerns the interpretation or application of the provisions of the Constitution, shall be heard and disposed of by or before not less than three judges.”
Although clearly this provision does not create a new Court, nor indeed does it create even a new division of the High Court; it has become not only common, but also worrisomely misleading for lawyers and the judges alike to erroneously refer to a panel of judges constituted pursuant to sections 9(2) of the Courts Act as a ‘Constitutional Court’. As Redson Edward Kapindu argued in his paper titled “Malawi Legal System and Research Resources”, it is indeed problematic that even the courts are adopting this language (of saying Constitutional Court) as if it existed. Malawi has no Constitutional Court.
Section 9 is simply a provision that deals with the composition of the High Court; and it should be viewed as such. The only gradation is that it requires more judges (not less than three) to hear and dispose of matters in cases where questions or issues expressly and substantively relating to or concerning the interpretation or application of the provisions of the Constitution are raised. In that characteristic as a High Court, it simply means, therefore, that decisions made by it can be appealed against to the Supreme Court of Appeal.
On the question of whether even the ruling of the preliminary hearing can be appealed against, the answer is in affirmative. Any party is free to appeal against the preliminary ruling of the High Court (or any court below it) if that party feels not satisfied on the points of law and/or fact regarding that ruling. This is the freedom that the Attorney General has decided to utilize. In fact, even if the “Constitutional Court” denied the Attorney General a leave to appeal, the Attorney General was still free to even appeal against that denial.
But while the Attorney General has decided to take that appellate path, it is, in my opinion, simply an exercise of an enjoyment of that freedom and nothing much. It is simply without any foreseeable usefulness or success. In fact, from where I am standing, I see no conceivable basis upon which such pursuit may be based. In that perspective, any ruling by the Supreme Court of Appeal that will throw the appeal away will not surprise me, just as the High Court’s decision to proceed with the case regardless of that appeal exercise has not surprised me.
The Attorney General’s intended exercise (of appeal) is, in my opinion duly guided by the circumstances, hopeless and a waste of the Supreme Court’s time. Perhaps it is on that basis, that the High Court (in its Constitutional Court sitting) has refused to waste its time by declaring that the train, which is rolling on the wheels of justice, will not wait for the Attorney General and Mutharika to finish their errand of an appeal. They will have to rush to the convenient stage and jump in as the train cruises on.
I must admit that it surprises me a lot that the Attorney General is harbouring any hopes of success in that exercise. At the same time, it is not surprising me entirely because the only front where they can hope to apply a fight is in the preliminary objections. Otherwise, given the abundance and seriousness of evidence at the disposal of the Petitioners, the defendants have no slightest chances of survival during the substantive hearing.
Now, let me turn to professor Danwood Chirwa. Professor sir, make no misinterpretation about it: I admire your achievements in the legal profession, but I am not anywhere close to admiring your recent opinion pertaining to this case. That opinion of yours sir, is simply horrible and entirely unattainable by a careful mind of your sort. Let me qualify this condemnation as below.
You passionately submitted that the Petitioners suffer a crisis of lack of credible evidence that would go beyond the Tipp-Exed ballots circulating the social media and that their case should face the fate of dismissal as it has no chance of victory at the substantive hearing. I am more than sure that you reached that conclusion, not after seeing the entire evidence relied upon by the Petitioners, but merely upon seeing what was circulating in the social media. That constitutes the utter carelessness and danger in your opinion. You used the most non legal formula in arriving at an opinion on a matter that is seriously legal in nature. I think you were not in-charge of your mind when you generated that opinion in that manner.
By extension, you endorsed the punches of technicality that the defendants (in the names of MEC and Mutharika) used. Ridiculous in it all is that they convinced themselves that the Court will approve their prayer to dismiss the case of great justice concerns such as this one without even demonstrating how such technicalities have prejudiced them or how it will put them at a disadvantage during the trial. How does it feel then to you that the same lawyers who relied on technicalities to stop the wheels of justice have, themselves, been caught wanting in their own obligation to technicalities?
In yesterday’s court proceedings, it was exposed that the self-acclaimed technical giants whom you purportedly supported brought their application under wrong provisions, citing rules that do not exist. Isn’t that incurably shameful? We have noted, from the proceedings, that the lawyers whom you rooted for did not know (or pretended not to know) that Order 10 and Order 19 rule 13 of the Courts (High Court) (Civil Procedure) Rules, 2017 do not provide for striking out of election claims or any other claim, yet they relied on these Orders to pray for the striking off of the claim. Isn’t that incurably embarrassing?
From where I am standing, the Attorney General and his crew are simply aiming at delaying, if not entirely standing in the way of, the fair trial of the matter. As a Human Rights lawyer yourself sir, I am failing to understand why you can endorse that act, yet you know that the injustices perpetrated by this fraud have grossly undermined the people’s right to vote and to be voted as provided for in our Constitution under Section 40. As I am concluding, I want to leave you with an assignment to read the case of Chakuamba v Electoral Commission  MLR 72 (HC)), wherein the Court held that a constitutional fundamental right of an individual should NOT be subjected to procedural technicalities. It is without hesitation that I submit to us that the Attorney General’s intended appeal has no leg to stand on, just as their application didn’t. The courts are reluctant to sacrifice merit of a case such as this that involves fundamental rights enshrined in the Constitution at the altar of technicalities. This you should have known better.