During March, Shadrick Namalomba, a member of Malawi’s opposition Democratic Progressive Party (DPP), asked the court to intervene in a dispute he had with his party. In particular, he wanted the leader of the DPP to be stopped from allocating him to seat 99 and later, to seat 100, for parliamentary debate.
Initially, the court granted an interim order, putting the disputed question of where Namalomba should sit, along with other decisions, on hold. But now that all parties have had a chance to put their views, a very different picture has emerged and the court has withdrawn the interim order.
For one thing, the leader of the DPP, Kondwani Nakhumwa, says he is not the person who should have been targeted by Namalomba, as it is the Speaker of the national assembly who allocates seats.
According to Nakhumwa, Namalomba had written to the Speaker on the question of seating and had not yet had a response. He should have waited until hearing from the Speaker before taking the matter to court, said the party leader.
Judge Mzonde Mvula said the case required a restatement of the doctrine of separation of powers. No branch of government should exercise control of another branch or exercise its functions.
Parliament was an autonomous organ of government with its own rules, and as was argued on behalf of the Speaker, the court cannot supervise the Speaker in the conduct of his or her duty, ‘unless there is a violation of the constitution’, and that violation has to be clearly stated.
While every individual had the right to bring action for an effective remedy to the courts, parliament was free to conduct its own proceedings without ‘anyone putting spanners in its mandate’. Not even a court should ordinarily intervene, unless the issued raised constitutional issues.
The judge said that Namalomba had written to the Speaker about seating arrangements, saying that he had a sight problem and should be allowed to sit in the front rows or his right to political participation would be infringed.
Judge Mvula added that ‘the answers (to the problems described by Namalomba) lie in Parliament and not at Court’. Namalomba was within his rights to contact the Speaker about the issue. However, he said, Namalomba acted as though his was the only issue that the Speaker needed to deal with. ‘Let it be remembered that … the Speaker, as head of Legislature, looks after the whole house.’
The facts did not warrant the court stepping in; they involved internal administrative processes that parliament had to sort out itself.
Cases involving political disputes fell into the category of matters that were not justiciable. ‘Courts world over, in which Malawi is no exception, by their nature are ill-equipped to deal (with) and determine political disputes.’
The judge also pointed out that even those sitting at the back would be able to see and be heard because microphones and projectors were used. Thus, being allocated to seat 99 or 100 ‘does not limit (one’s) right to political participation, nor is it discriminatory in any way.’
Nakhumwa, against whom the action had been brought, ‘leads the largest opposition party in parliament’, and he had to exercise his discretion about how best to oppose government to make it accountable to the people of Malawi.
The judge said that Namalomba’s approach ‘sounds like (the) conduct of a cry-baby.’ The issue on which he went to court was ‘not legal in nature’. The party leader had a broad prerogative on decision-making involving issues such as that before the court.
Namalomba seemed to feel sidelined about key decisions made by the leader of the opposition, but he simply has to ‘man up’, and have a heart-to-heart discussion with his political leader about the issues that were bothering him.
‘Gagging him (the party leader) by court orders and expecting him to consult (on) every decision is unreasonable, myopic and pedantic.’ Democracy was about ‘dialogue and discussion’, said the court, and parties ‘should avoid rushing to court whenever such political disputes arise, to get legal redress over a political dispute.’
The case was purely an intra-party dispute, and the court ‘should not be abused and tainted with political party colours to make directions and declaratory orders (in) cases which tilt heavily in politics.’
Politics was about ‘egos and emotions’ and the court was not the arena to settle such scores, he said.
‘What the court sees is like in a typical street brawl’ and it seemed that Namalomba was determined ‘to rewrite the political landscape’.
It was unreasonable, unlawfully selfish and unpatriotic to expect the speaker to stop performing national duties to worry about an MP who is in dispute with the leader of his party.
It was an open secret that fights were raging in the opposition camp and the brawl between the two men took place inside and outside parliament. Namalomba continued to ‘abuse privilege’ and tried to use the court to ‘order the Speaker to entertain his whimsies’, without considering how busy the Speaker was.
‘What is worse is inviting the court to determine such in-house issues, despite both institutions being operationalised by the tax-payer. This is a waste. This court will not be part of such wastage of resources.’
It also appeared that Namalomba had not played open cards with the court nor disclosed material facts. Given front page newspaper articles on the subject, he should have disclosed ‘as a material fact’ that there was a political feud in the party, which had apparently soured relations between the two men. This fact had been suppressed, leading to the granting of an ex parte injunction.
It was not the function of the judiciary to resolve political disputes, said the judge, and such matters shouldn’t come to court in the first place.
Internal proceedings of parliament should not be made subject to litigation in the high court.
Then came a serious sting from the court: ‘The claimant has used the back door against parliamentary privilege. By the same back door, he is booted out from the High Court of Justice.’
What was to be done about costs? Someone had to pay for the time taken up by the dispute, and the court was of the considered view that the action should never have been brought to court in the first place.
Litigants should carefully examine the facts and sieve them before ‘flooding the courts with claims that are not justiciable in the first place.’ This had not been Namalomba’s approach, and so he was ordered to pay the costs of the proceedings.