Malawi’s courts will intervene, even in party political disputes - judge

As election fever hots up in Malawi, a high court judge has reminded political parties of something many would rather forget: that under certain circumstances the judiciary is obliged to hear and decide party disputes. It could not be denied that courts had jurisdiction over ‘political disputes’ raising issues of a judicial nature, the judge said. And, where appropriate, for example if a party breached its own constitution or acted arbitrarily, judges had to “do their duty” and hear such cases. The reminder came in a case involving contested primaries for the Malawi Congress Party.

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With general elections due in Malawi during May 2019, it is hardly surprising to find political parties have already begun bringing cases to court related to the upcoming polls.

But the latest case, involving Malawi Congress Party (MCP) hopeful, Patrick Bandawe, gave the court an opportunity to establish some important principles that political parties should bear in mind.

Judge Kenyatta Nyirenda of the high court in Lilongwe was asked to intervene in a dispute over who had won the MCP primary elections in the Dedza East constituency. Bandawe said that after the headcount he had the most number of supporters, but then someone else was later declared the winner even though he was given no opportunity to be heard.

He asked the court to interdict the party from effecting its decision to declare Juliana Lunguzi the winner of the primary elections.

In response the MCP raised a number of issues, one of them being whether the courts should involve themselves in party political issues. Counsel for the MCP said that the courts had previously held, “with an almost crusading zeal”, that party matters ought to be resolved internally by political parties themselves, through considering and applying their governing rules.

In his decision of 7 January 2019 Judge Nyirenda made several points about the principles that will guide a court in such matters – principles that will surely be raised a number of times in the next few months before and after the country’s elections.

He said that disputes between political parties and their members ought to be resolved in terms of the party’s constitution and its rules. But, he stressed, though the general principle was that attempts ought first to be made to resolve any disputes internally, this did not mean that the jurisdiction of the courts was ousted.

 A party and its members were free to approach a court about internal dispute where the party breached its own constitutive document or rules, where a party acted in breach of the rules of natural justice or the laws of Malawi, or where it acted arbitrarily.

But perhaps his most significant point was this: previous court decisions had always been framed in a way making clear to parties that they could approach the judiciary. “There is no denying that courts have jurisdiction over ‘political disputes’ that raised issues of a judicial nature,” he said.

Then he added this important comment, highlighting that judges could not be seen to avoid their duty to hear cases even if they involved “political disputes”:

“To my mind, the question whether or not a court should exercise its jurisdiction over a ‘political dispute’ is not one that can be decided in abstract, without paying special attention to the facts of the particular case.

“(I)t seems to me, … that the developing trend of the … bracket categorization of ‘political disputes’ as being non-justiciable is not only wrong in principal but might also unwittingly give the impression that the judiciary is ... hiding behind ‘political disputes’ to shirk the duty imposed upon it by … the constitution to determine issues of judicial nature, whether or not such issues touch upon politics.”

He continued: “I will add this much. Once a court has determined that a matter falls within its jurisdiction, it must not hesitate to deal with the matter to its logical conclusion in accordance … with the applicable law and procedures …. Needless to say, this is jurisdiction that must be (guarded) jealously by the judiciary – not to be relinquished anyhow.”

Having reminded himself of these principles – and restated them for the benefit of the parties – he said he was satisfied that the Bandawe case was properly before the court: among others, it raised the question whether the party had breached natural justice, and whether the dispute was covered by the party’s own constitution.

In the event he agreed to a temporary interdict that would stop the party effecting its declaration of Lunguzi as winner of the primaries for her area.

But he also flagged an issue that troubled him and that has emerged again in the following weeks.

He said both sides agreed that the dispute should be resolved as quickly as possible – and yet the two sides “did not appear … keen to prosecute the case with dispatch”. For example, Bandawe had, at that stage, not yet filed proof of service of his summons, while the party itself had not yet filed its defence.

From their behaviour it seemed that the two sides were content with merely settling their dispute over the temporary order. This, despite the court often urging parties that this was different from the action itself.   

His warning, however, appears to have been ignored by the parties and when, a fortnight after that judgment, there had still been no movement towards a proper hearing of the main dispute, Judge Nyirenda took action to cancel his original order.

On 25 January 2019, Malawi 24 quotes him as saying that Bandawe had taken too long to act after the temporary injunction. “In my view, the only reasonable explanation for (Bandawe’s) lack of interest in prosecuting the main action is that the action was not brought bona fide but for some other ulterior or collateral purpose.”

In response, Bandawe’s lawyers said they had applied to have the injunction restored, but the MCP itself said there was growing concern that the issue would drag on beyond the deadline for nomination submissions.