Don’t use “constitution” as a “mantra”, Malawi’s supreme court warns

28 February 2019 · Carmel Rickard

Malawi’s former agriculture minister, George Chaponda, was a key figure in that country’s “Maizegate” scandal around the importation of maize from Zambia to replenish stocks that had allegedly fallen low. Public criticism of apparent corruption led to a presidential commission of inquiry and then to high court action to have Chaponda stand down during the inquiry. Though the high court initially ordered Chaponda’s suspension, the supreme court has just ruled that it was wrong to do so, and that the judge had ignored binding precedent. The judgment was important for clarifying Malawi’s approach to judicial review. It has also taken an in-depth look at presidential prerogative among other issues.

Read the judgment on MalawiLII

When Malawi was gripped by a maize shortage scare a few years ago the government arranged to buy more from Zambia. But allegations of corruption soon followed against George Chaponda, then minister responsible for agriculture, as well as other officials in Malawi and in Zambia.

So great was the public outcry that a presidential commission of inquiry was established to investigate.

One man, Charles Kajoloweka, was convinced that the inquiry was a farce. In what appeared to be a joint application by himself and several organisations, he asked for a judicial review of various aspects of the inquiry. In particular, Kajoloweka wanted Chaponda to be suspended until the inquiry was finalized. The high court agreed with his argument and barred Chaponda from continuing in his role as cabinet minister until the commission had completed its work.

That outcome quickly made its way to the supreme court, and three judges of that court delivered their decision this week.

In a nutshell, the judges were unimpressed by Kajoloweka's case and by the high court’s ruling in his favour.

For one thing, they were concerned about the serious confusion in the papers: had Kajoloweka brought the application in his own name only or on behalf of several organisations whose names he used? Despite apparently involving them as co-applicants, no documents had been put up to show that he had a mandate to act on behalf of these organisations. This question – the clarity in affidavits about exactly who brought an application – was one of the main discussions in the judgment.

The other, far more extensive, debate was over the nature of judicial review and which presidential decisions could be subject to review by the courts, and which not.

The judges also considered whether it would be proper to force the suspension of a minister during an inquiry such as this. They wrote that the courts would promote “executive paralysis and chaos” if they were to set a precedent and say that all it takes to have a minister suspended from office was to merely to “suspect” him or her of a crime.

It would also paralyse and destabilise the executive if in a case where a minister is suspected of an offence, “suspension should inexorably and unfailingly follow”, they said.

The President of Malawi had specific powers that courts should not review since that would amount to judicial overreach. But if the President acted contrary to the constitution then a challenge to that infringement would be appropriate.

Explaining where the courts drew the line, the Supreme Court wrote, “The legal presumption is that the President would in good faith and in good conscience act within the law. Yes, he might fall below expected level but where he is within the law do we substitute his decision with ours?”

Judges warned that courts need to be careful before accepting a matter for judicial review. “It is the understanding of this court that mere citation of the word ‘constitution’ without more, is not enough to bring a case for further inquiry in a full judicial review setting.”

“Mere mantra of a possible infringement of constitutionalism should not lead to the grant of permission for judicial review. … (T)he constitution is just being thrown in without particular reference to the provision of the constitution that brings up the issue of constitutionalism.”

In the view of the court, some prerogative power of the president were reviewable, but the power to appoint or suspend ministers and other top officials was not subject to judicial review.

The three top judges were particularly critical of the high court for its judgment as well as of Kajoloweka for the poor way the case was planned and handled, without proper proof of whether he acted together the other parties, as he claimed, in bringing the application for judicial review.

The issues had far-reaching implications, they said. Both the applicants and the court were duty bound to exercise extra care and due diligence.

“What we see is a shameful laxity and lack of clarity in the case … that should not find itself in the high court.”

The court went on to add its criticism of a further matter: “Human rights defenders” should not usurp the right of individuals to vindicate their rights, the judges said. It would be “wrong, dangerous and unfair, if it became the practice of human rights defenders to snatch away cases from individuals who themselves are quite capable of complaining or bringing up actions in courts for redress.”

As to the commission of inquiry itself, the court was concerned about one of the arguments put up by the attorney general. Running through his argument was a stress that a commission of inquiry was “non-binding” on Presidents or anyone else. And that even if someone were to be found “culpable of a crime” by the commission, or liable civilly, a criminal prosecution or a civil suit would still have to follow to establish guilt or civil liability, before the matter could be finally settled.

“We need to point out that if we adopt the position that the report of a commission of inquiry could be disregarded by the President, it would be sad,” said the court. If the inquiry establishes a fact showing impropriety, a President, for reasons of good governance, cannot just ignore the findings and recommendations.”

“The President would be acting in bad faith if he disregarded the findings of a commission of inquiry which he established himself.”

The court ordered that Kajoloweka be liable for costs, and that since no evidence had been given in the form of a resolution by the trustees of the organisations he purported to represent, that he pay the costs personally. They also found that the dispute had disclosed "no arguable case fit for judicial review."

Carmel Rickard

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