CAVENDISH UNIVERSITY ZAMBIA
A CRITIC OF SECTION 80(2) OF THE CONSTITUTION OF MALAWI IN THE PRESIDENTIAL ELECTION PETITION OF 2019.
By Alfred Masamba (005-178)
A THESIS SUBMITTED TO THE SCHOOL OF LAW FULFILMENT OF THE REQUIREMENT FOR THE DEGREE OF LAW
i
Student no: 005-178
DECLARATION
Name: ALFRED MASAMBA______
Student number: 005-178______
Degree: Bachelor of Laws______
This Dissertation was produced by Alfred Masamba in the fulfilment of the requirements for the
Undergraduate Law Programme (LLB) from the Cavendish University of Zambia. I undertake that all the material presented for examination is my own work and has not been written for me, in whole or in part, by any other person. I also undertake that any quotation or paraphrase from the published or unpublished work of another person has been duly acknowledged in the work which I present for examination.
SIGNED: ……………………………………….
DATE: …………………………………….……
SUPERVISOR: VICTOR MWAPE
SIGNED…………………………………………….
DATE …......
ii
Student no: 005-178
ABSTRACT In a historic and first of its kind ruling, the Court of Malawi showed the fortitude and courage of the judiciary by nullifying the March 2019 presidential election that had been tainted by irregularities. This sent word to the country that the Malawian Judiciary is not an institution to be taken for granted and can be counted upon to uphold the rights of the people irrespective of their position within the spectrum of power. The independence of the judiciary is critical to the functioning of any democracy, as such, evidenced by its incorporation into the structure of Malawi’s government established by the Constitution of Malawi. This research examines the independence of the judiciary in regard to presidential election petitions, exploring the extent to which the Malawian judiciary had guaranteed the independence of the judiciary, the effect that politics has had on judicial decisions and the independence of the Malawian judiciary and further investigating the determination in Saulos Chilima and Lazarus Chakwera v Electoral Commission and AP Mutharika; Ex Parte: Malawi Congress Party and Another, may have been influenced with Judicial Activism by the judges considering the overturning of a well set precedent in the interpretation of section 80 (2) of the constitution.
iii
Student no: 005-178
`
ACKNOWLEDGEMENT I would like to take this opportunity to express my profound gratitude and deep regard to my parents Mr. and Mrs. Masamba and supervisor Mr Mwape, all for your exemplary guidance, valuable feedback and constant encouragement throughout the duration of this thesis. Your valuable suggestions were of immense help throughout the duration my thesis writing. Additionally, your perceptive criticism kept me working to make this thesis much better.
iv
Student no: 005-178
DEDICATION To my loving mother, Mrs. Rita Masamba and my wife and daughter, Thengwase Masamba and Aaliyah Masamba. Thank you for standing by me, when nobody else did.
v
Student no: 005-178
LIST OF ACRONYMS AND ABBREVIATIONS
Title Abbreviation Chakuamba and others v Attorney Chakuamba Case General and others Electoral Commission of Malawi ECM Judicial Activism JA Presidential and Parliamentary Elections PPEA Act The Constitution of the Republic of The constitution MalawiSaulos Chilima and Lazarus The Saulos case Chakwera v Electoral Commission and AP Mutharika; Ex Parte: Malawi Congress Party and Another
vi
Student no: 005-178
TABLE OF CONTENTS
DECLARATION ...... ii
ABSTRACT ...... iii
ACKNOWLEDGEMENT ...... iv
DEDICATION ...... v
LIST OF ACRONYMS AND ABBREVIATIONS ...... vi
TABLE OF CONTENTS ...... vii
Chapter 1 ...... 1
General Introduction ...... 1
1.1 Introduction ...... 1
1.2 Background ...... 1
1.3 Statement of the problem ...... 3
1.4 Scope of the Study...... 4
1.5 Research Objectives ...... 4
1.6 Research Question ...... 5
1.7 Rationale of the Paper ...... 5
1.8 Outline of Chapters ...... 5
1.9 Conclusion ...... 6
Chapter 2 ...... 8
vii
Student no: 005-178
Literature Review...... 8
2.2 Judicial Independence ...... 8
2.3 Understanding Judicial Independence ...... 11
2.4 Judicial Activism ...... 13
2.3.1 Is it when Courts ignore Precedents...... 14
2.3.2 Is it when the Courts ignore Legislative Enactments? ...... 15
2.5 Separation of Powers ...... 16
2.6 Constitutionalism ...... 18
2.7 Rule of Law ...... 20
2.8 Gaps in the Literature ...... 21
Chapter 3 ...... 23
Research Design and Methodology ...... 23
3.1 Introduction ...... 23
3.2 Population and Study Sample ...... 24
3.3 Sampling Procedure ...... 24
3.4 Data Collection ...... 24
3.5 Ethical Consideration ...... 25
3.6 Data Analysis ...... 25
3.4.1 Systematic Case Selection ...... 25
3.4.2 Systematic Case Coding ...... 26
Chapter 4 ...... 27
viii
Student no: 005-178
Data Analysis and Implementation ...... 27
4.1 Introduction ...... 27
4.2 Electoral System in Malawi ...... 27
4.3 Judicial Independence in Malawi ...... 28
4.2.1 The 1993 referendum ...... 29
4.2.2 1994 Elections ...... 30
4.2.3 The 1999 elections ...... 31
4.2.4 2004 Elections ...... 33
4.2.5 Recent 2019 Elections...... 36
4.4 Judicial Activism in Malawian Courts ...... 37
4.3.1 The Superior Court overturning its previous decisions ...... 37
4.3.2 Ignoring precedent from superior court ...... 39
4.3.3 Invalidating Legislation ...... 40
4.5 Judicial Activism in the Saulos Case ...... 41
Chapter 5 ...... 45
Recommendations and conclusions ...... 45
5.1 Introduction ...... 45
5.2 Conclusion ...... 45
5.3 Findings ...... 47
5.4 Recommendations ...... 48
5.2.1 Gaps in the Constitutional safeguards for the Independence of the Judiciary ...... 48
5.2.2 The Judiciary and the Judicialization of Politics ...... 49
ix
Student no: 005-178
5.2.3 There is need to prioritise tailor-made judicial training to prevent judges from fumbling along ...... 51
Bibliography ...... 53
Books ...... 53
Articles and Journals ...... 53
Cases...... 54
x
Chapter 1
General Introduction
1.1 Introduction
We have all been anxious spectators of the recent political fracas in Malawi, as the opposition used the courts to contend against the results of the 21 May 2019 election which had declared Arthur Peter Mutharika as the president. The landmark decision of nullifying and ordering a fresh election in Saulos Chilima and Lazarus Chakwera v Electoral Commission and AP Mutharika; Ex Parte: Malawi Congress Party and Another1 similar to the one passed in Kenya has been greatly applauded and has reflected the extent of democracy and judicial sovereignty in Malawi, with regards to elections.
The court further, made a number of determinations regarding elections and laws governing elections in Malawi. The controversial interpretation of section 80(2) that the majority be attained by a candidate to the office of the President is a minimum of fifty percent (50%) plus one total valid votes cast during presidential election and parliament must within 21 days from the date make appropriate provisions as on such.
This paper, shall consider other aspects determined in the case and consider whether the court practiced judicial activism by setting aside a well-established precedent set by the supreme court in interpreting section 80 (2) of the constitution. Further, whether the court went beyond the principle of separation of powers in ordering the parliament to enact certain provisions and how the case should serve as an alert for the Malawian legal system to develop their laws, as done by their counterparts in Zambia.
1.2 Background
The Constitution is the supreme law of the land. It creates and organizes the State and government. It sets parameters and limits the operations of organs of government, action of
1 Constitutional Reference No. 1 of 2019.
1
Student no: 005-178 people and institutions and in cases of conflict with other laws inferior to the Constitution2, it controls it.
At the time of the drafting of the 1994 Constitution there were fears that if proper safeguards were not created, the Constitution itself would be in danger of being perverted and distorted by the government that would be in power. The Constitution therefore created an independent and impartial judiciary as one of the Constitutional safeguards, with a mandate to interpret, protect and enforce the Constitution and all laws.3
The Landmark decision in Raila Amolo Odinga and Another v Independent Electoral and Boundaries Commission and Others4 has triggered judicial transition in a way that electoral results may be reviewed and changed which was not a luxury that could not be attained in Africa.
In terms of the case of Saulos Chilima and Lazarus Chakwera v Electoral Commission and AP Mutharika; Ex Parte: Malawi Congress Party and Another the case has portrayed the extent of judicial sovereignty and the powers conferred to the judiciary by the constitution by interpreting, protecting and enforcing all the laws.
In previous cases, when elections were held before the rule of law was betrayed and controlled by politics, the outcome was a weak, quasi-democratic state. The most recent example executive interference in Malawi was during the 2014 elections, when the incumbent president Joyce Banda sought an injunction to halt the election and an order of fresh elections be held after an unofficial count had placed her on 3rd position, Banda initially won an injunction halting the vote count but this was subsequently overturned.
Thus, we all should applaud the Malawian judiciary’s determination in the Saulos Chilima case. Be that as it may, the decision of this case is far from perfect. As certain problems have crept in after the landmark decision, thus motivating this paper.
I will consider the determination by the court to order that the majority be attained by a candidate to the office of the President is a minimum of fifty percent (50%) plus one total valid votes cast
2 See section 5 of the Constitution which makes provision for the supremacy of the constitution 3 See Jane Ansah “The Right to Development and the Malawian Law”, PhD Thesis, (Nottingham; University of Nottingham, 2002), at 164. 4 Presidential Petition No. 1 of 2017
2
Student no: 005-178 during presidential election and parliament must within 21 days from the date make appropriate provisions as on such. Thus reversing the Supreme Court’s interpretation set in in 1999 defining the extent of majority in a presidential case, whether such may be regarded as the judiciaries on measure to facilitate for the law (judicial activism).
Returning to the Constitution, it provides for the concept of separation of powers between the arms of government, under section 9 of the Constitution the Judiciary is tasked with the duty and responsibility of interpreting, protecting and enforcing all laws in accordance with the Constitution. In contrast, section 8 of the Constitution provides the legislature to be responsible for the enactment of laws. As propounded by Montesqeu such branches should not interfere with the powers, function and responsibilities conferred to each branch.
Thus, the order on the legislature may be a breach on the principle of separation of powers as the Judiciary is interfering in the law making process. Further, despite such an order what may compel the legislature to enact such laws?
1.3 Statement of the problem
In terms of Majority in a Presidential election, it is regarded that the candidate who has attained a majority of the votes at the poll shall be declared to have duly been elected as set out by section 96 of the Presidential and Parliamentary Election Act (PPEA). Similarly, the case Chakuamba and others v Attorney General and others. The Supreme Court interpreted section 80(2) in support of the first past the post system provided by the PPEA.
However, in the Saulos case, the court departed from this stance, in regards to majority attained in presidential election. The court reverted from the requirement for electing the President of the Republic by a simple majority of the electorate, to the requirement that a candidate has to have obtain fifty per cent plus one vote of the registered voters and not merely by a majority of the votes cast.
It is within this context that the thesis, aims to discuss the reinterpretation of section 80(2) of the constitution on the meaning of majority of the electorate, in the Saulos case. With emphasis on the departure of the definition of majority of the electorate set out in the PPEA and by the Supreme Court.
3
Student no: 005-178
1.4 Scope of the Study
Malawi has (along with many Eastern and Southern African Countries) have seen the increased focus on not only the implementation of Constitutional policies and Law but also the extent of the powers and independence of the judiciary in accountability and transparency from the actions carried out by governmental organs.
The general scope of this research is to access the current extent of Constitutionalism in Malawi, mainly categorising on section 103 of the Malawian Constitution which provides for a sovereign judiciary. The paper will consider the judiciary in discharging of its duties in m exercise of its regulatory functions and its role in aiding in the promotion of democracy.
The study assesses and focusses on judicial activism of the decision in Saulos Chilima and Lazarus Chakwera v Electoral Commission and AP Mutharika; Ex Parte: Malawi Congress Party and Another. The paper shall dig deeper and consider other determinations in the judgement, whether the courts order for the legislature to amend statutory provisions and include the plus 50 percent provision into the next election is presents a sort of activism by the judiciary.
The paper shall also consider section 80 (2) of the constitution regarding a president to be elected by a majority and compare to our counterparts in Zambia on how they have developed such laws over the years and how we may update our laws as such in future.
1.5 Research Objectives
The goals of this paper are three-fold:
a) To examine the law, that addresses majority in presidential elections in Malawi?
b) To establish, the definition of majority in presidential election based on the Chakuamba case.
c) To examine the effectiveness of the decision rendered by the Judiciary, in reinterpreting the meaning of majority of the electorate?
4
Student no: 005-178
1.6 Research Question
a) What law addresses the term ‘majority’ in presidential elections in the Malawian context? b) What is the definition of ‘majority’ in presidential elections based on the Chakuamba case? c) How effective is the decision rendered by the Judiciary, in re-interpreting the meaning of majority of the electorate?
1.7 Rationale of the Paper
This thesis expands on the literature on the independence of the judiciary, focusing on Malawian courts with regards to election petition decisions. Findings were applied in a thematic manner by extracting the constitutional aspects related to the independence of the judiciary in an attempt to find a balance between theory and practice. Furthermore, it analysed opportunities for judicial and legislative reform, particularly the recently promulgated constitution, with the aim of assessing the extent to which it limits intrusion and control between the branches of government.
It is important to acknowledge the landmark decision made in the Saulos Chilima Case. However, this paper does not only look at these nullification of the election which was the centre of everybody’s attention, but this paper shall consider certain legal uncertainties in the determination.
The paper also shall also consider how this case may be used as a lamplight towards the Malawian legal systems so as to awaken our law makers to update certain laws which are archaic.
1.8 Outline of Chapters
This study will be divided into five chapters:
Chapter 1 states the problem, and the scope of the thesis. It also discusses broadly, it gives a brief introduction on the topic in questions, mainly warming us up to the background of election case in Malawi and the direction which the thesis will follow.
Chapter 2 focusses on the written works or literature compiled by various authors relating the the topic. The main concepts of judicial independence, rule of law, and separation of powers
5
Student no: 005-178 theories. This chapter notes the different definitions and scope of judicial independence in Malawi. In order to lay out a clear conceptual foundation for critically analysing the role of the Malawi Judiciary in the promotion of rule of law and democracy during the election case.
Chapter 3 is a breakdown of the research design and methodology; the research design provides a general plan and framework on how the paper intends to answer the research questions. It also presents the specific methods of data collection and analysis.
Chapter 4 seeks to introduce and elaborate upon the three key concepts around which the present research has been constructed, namely state of judicial independence in Malawi, the theory separation of powers and an analysis of the determination in Saulos Chilima and Lazarus Chakwera v Electoral Commission and AP Mutharika; Ex Parte: Malawi Congress Party and Another.
Chapter 5 will summarize the conclusions arising from this study. The discourse aims to the deficiencies in the presidential election case determination irrespective of the substantive mandates entrenched in the case. It will be proposed that there is an urgent need for a deliberate investment to enact appropriate laws in order to appreciate the various orders made in the determination of the above case, further laws may be put into place elaborating the interaction of powers and function between the various branches of government. It would thus be useful to note how any present conclusions/findings may form the basis for future critiques of judicial decision- making in more thematic approaches.
1.9 Conclusion
Judicial independence was a creature adamantly mandated and stated by the liberal constitution passed in Malawi in 1994 however in terms of Elections. This creature was widely avoided causing the judiciaries decisions to be heavily influenced as will be explained below. However, the Saulos case has brought in to light a new jurisprudence of the court, in independently determining the legality of electoral result. Further, whilst celebrating the landmark decision the let’s remember to legally analyse various determinations made in the judgement, whether the judges regarded themselves as activist in interpreting section 80(2) of the constitution turning
6
Student no: 005-178 away from a well set precedent. As of such the following chapter will provide a literature review, discussing the various ideologies from different scholars on the paper at hand.
7
Student no: 005-178
Chapter 2
Literature Review 2.1 Introduction
It is broadly acceptable that a confident, independent and empowered judiciary is central to the rule of law. The very over exponential role of the judiciary in promoting constitutionalism can never be overemphasized. This referring to the shortcomings of constitutionalism, throughout Africa.
The decision in Saulos Chilima and Lazarus Chakwera v Electoral Commission and AP Mutharika; Ex Parte: Malawi Congress Party and Another has been largely described using the words ‘ground-breaking’ I cannot overemphasize on how the case has presented the development of the Malawian legal system, however this ground-breaking case has left behind a few cracks or shortcomings of its own. As such the study will seek to identify and analyse certain problems created by the case.
As of such this Chapter generally looks at what other authors have written and discussed about this topic, in precise what other authors have written about attainment of majority in presidential elections and independence of the judiciary. Basically, much focus will be shed on Kenyan authors as precedence was set when the Kenyan Judiciary was the first in Africa to annul elections, as of such most authors have covered on this topic
2.2 Judicial Independence
The advantage of democracy as a concept over the other forms of government is the role it pledges to the people in governance. Democracy gives the citizen a role to play towards governance. That is, it represents a mode of decision-making about collectively binding rules and policies over which the people exercise control, and the most democratic arrangement to be that where all members of the collective enjoy effective equal rights to take part in such decision
8
Student no: 005-178 making directly, that is to say, which realizes to the greatest conceivable degree the principles of popular control and equality in its exercise.5
However, as aptly put by Walzer, ‘if all citizens had literally the same amount of influence, it is hard to see how any clear-cut decision could ever be reached. It is that fact that makes it imperative even in a democracy to vest in institutions or officials the power of state for purposes of maintaining and enhancing the peaceful co-existence of individuals in a society. ‘Power’ in this sense is defined as the ability to determine matters with finality ‘not only for oneself but for others’ as well. It is within the context of political power that democracy as a concept intersects with the theories of democracy, for it is those theories that seek to prescribe how that ‘power’ should be allocated. For instance, liberal democracy advances the principles of separation of powers.6 In fact it is the democratic theory of separation of powers that has been uncritically adopted as the dominant thesis in most African countries especially in Malawi as envisaged by the constitution, with its emphasis on the courts as the restraint on the use of political power by the Executive and Legislative arms of Government.7
Further, recent studies on the emergence of judicial power in emerging democracies8 point to a need to abandon the narrow understanding of political power as a phenomenon that is wielded only by the executive and legislative arms of government in preference for one in which courts are understood as part of existing configurations of political power. In other words, research in emerging democracies on judicial function has shown that courts are themselves wielders of political power which renders them equally liable to abusing that role.9
Ellet, as well as Van Doepp, have written on the emerging judicial power in Malawi.10 Ellet clearly asserts that the Malawian courts are quite robust. They are not shy to make decisions contrary to the expectations of the ruling elite. Ellet examines the level of internal and external autonomy and how those contribute to judicial independence as a democratic prerequisite. Van
5 Walzer M, Spheres of Justice: A Defence of Pluralism and Equality (Basic Books, 1984). 6 Beetham D, ‘Liberal Democracy and the Limits of Democratisation’ (1992) 40 Political Studies 40. 7 RL Ellet, ‘Emerging Judicial Power in Transitional Democracies: Malawi, Tanzania and Uganda’ (2008) Public and International Affairs Dissertations, paper 3, p. 26. http://hdl.handle.net/2047/d10016120. 8 Ellet (n 40) 26. 9 U Baxi, ‘Preface’ in SP Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits (OUP India, 2 edn. 2003) vi- xvii. 10 Ellet (n 40); P VonDoepp, ‘The Problem of Judicial Control in Africa’s Neopatrimonial Democracies: Malawi and Zambia’ (2005) 120 Political Science Quarterly 9
Student no: 005-178
Doepp on the other hand discusses the question of corruption and how that affects judicial independence.11
This Saulos decision, has presented a common similarity of all democratic states, the establishment of mechanisms of accountability is critical to political and economic development in Malawi. To be truly effective, policy makers and academics have increasingly turned their attention to the foundational importance of strong, transparent and fully functional rule of law institutions to economic and political development. First and foremost, the courts’ role in resolving conflict is essential to maintenance of the rule of law.
It has commonly been viewed and themed by most scholars that comparative politics scholars need to bring judicial institutions into the mainstream of their analysis. Courts cannot be understood as only a restraint on power, but must be understood as part of existing political configurations of power. Courts have been given the power to declare legislative and executive acts unconstitutional and they are not being shy about using this power. Courts can no longer be seen as a political, neutral third-parties narrowly interpreting precedent. Judges, more than ever, are acting within and in response to the broader political environment.
Oloka-Onyango proposes that one way of entrenching constitutional government is to have a more definitive provision that confers courts with the power to reverse any actions that violate the provisions of the Constitution, whether these are Legislative or Executive.’12 This observation is premised upon Oloka-Onyango’s analysis of Ugandan jurisprudence, he noted that the courts tended to be purely positivist and extremely restrictive in their application of constitutional guarantees of human rights.
In the context of Malawi there are such constitutional provisions that confer the bench with the mandate to assess all executive and legislative acts.13 Like Uganda too, the Malawian bench has strong common law heritage, as noticed in our case the court only executed its duties within its jurisdiction by presiding over and nullifying the elections. Be that as it may, the court stepped
11 Ellet (n 40); P VonDoepp, ‘The Problem of Judicial Control in Africa’s Neopatrimonial Democracies: Malawi and Zambia’ (2005) 120 Political Science Quarterly 275. 12 J Oloka-Onyonga and K Nansozi, Africa’s New Governance Models, Debating Form and Substance (Fountain Publishers, 2007). (n 78) 51. 13 Section 108 (2) of the Constitution. 10
Student no: 005-178 beyond its powers in determining over the matter of ‘majority electorate’ and one may state such actions to be against the principle of separation of powers.
Montesquieu (1748) argues that one agency of government should not exercise a function suited to another branch and that separation of the judicial element has an important role in the prevention of illegal oppression. In his view there is a threat to liberty where powers are united in the same person or body, especially in the case where judicial power is not separated from the legislative and or executive power (Montesquieu, 1748). The independence of the judiciary also relates to the idea of the rule of law which requires, equality of all parties before the law irrespective of their status, protection of fundamental rights and freedoms and the absence of arbitrary power by government. At a minimum, rule of law encapsulates the idea that both government officials and citizens are bound by and abide by the law.14 This chapter analyses the origins of the independence of the judiciary, explains its relationship with the doctrines of separation of powers and rule of law, the importance of judicial stability and the interplay of such stability towards aforementioned doctrines of separation of powers in reference to the determinations in Saulos Chilima and Lazarus Chakwera v Electoral Commission and AP Mutharika; Ex Parte: Malawi Congress Party and Another.
2.3 Understanding Judicial Independence
The onset of the independence of judiciary doctrine can be traced to the evolution of a constitutional democratic state in Europe, accompanied by the development of the rule of law, with the attendant prerequisites of the separation of powers and the existence of checks and balances.15 The debate about the role of the courts in general and the judges in particular evolved in the context of the history of the exercise of confined power by political rulers, mainly in Great Britain, but also later in the United States and Europe.
Traditionally, a judiciary in a constitutional democracy is expected to perform four functions; namely, dispute resolution, judicial review, administration of criminal justice and protection of human rights. The judiciary is responsible for the maintenance of a balance of interests between
14 Gathii, J. T. (2016). The Kenyan Judiciary’s Accountability to Parliament and to Independent Commissions: 2010-2016. In Judicial Accountability in the New Constitutional Order (12th Ed., Pp. 133–154). Nairobi: Icj Kenya. 15 Diescho, J. B. (n.d.). The paradigm of an independent judiciary: Its history, implications and limitations in Africa, 17–41. Retrieved from http://www.kas.de/upload/auslandshomepages/namibia/Independence_Judiciary/diescho.pdf 11
Student no: 005-178 individual persons, as well as, between individual persons and the state, and between government organs. During the 2019 elections, it was the judiciary which is entrusted with the task of keeping every organ of the state acts within the limits of the law and can only achieve this in as far as its independence.
Baum defines the independence of the judiciary as a condition in which judges are entirely free from negative consequences for their decisions on the bench and the degree of judicial independence is directly proportional to the degree of such freedom.16
The independence of the judiciary is one of the most valuable institutional resources of courts and for courts to properly fulfil their role as impartial arbiters of disputes, they must be insulated to some degree from ordinary political pressures. When the independence of the judiciary is not guaranteed, the judiciary may lose its effectiveness
The independence of the judiciary comprises two fundamental elements. These are, the independence of the judiciary as an organ and as one of the three organs of the state and independence of the individual judge. As an organ, the independence of the judiciary concerns the capacity of the judiciary as a separate branch of government, to resist encroachments from political branches and thereby preserving the separation of powers. Judicial accountability, in contrast, concerns capacity of individual judges to decide cases without threats or intimidation that could interfere with their ability to uphold the rule of law.17
Separation of powers requires that governmental power be divided between the judiciary, executive and legislature. The requirement is that each branch is able to check the exercise of powers by the others either by participating in the function conferred on them or by reviewing the exercise of that power. As such, the separation of powers in this case is invoked as a mechanism for restraining and limiting government power or allocating such power. However, the requirement of the independence of the judiciary, supported by separation of powers is not just enough.
16 Baum, L. (2003). Judicial Elections and Judicial Independence: The Voter’s Perspective. Ohio State Law Journal, 64(13), 1–16 17 Geyh, C. G. (2006a). Rescuing Judicial Accountability from the Realm of Political Rhetoric. Case Western Reserve Law Review, 56(4), 911–935. 12
Student no: 005-178
Additionally, it is meant to further certain virtues and aspirations of the society which are portrayed by the doctrine of rule of law. The rule of law, requires that government and citizens submit to the authority of the law, that there is equal treatment before the law and that there is impartial arbitration of disputes according to law. Consequently, the need for separation of powers arises not only in political decision making, but also in the legal system, where an independent judiciary is essential if the doctrine of rule of law is to have any tangibility.18
2.4 Judicial Activism
There is no universal agreement on the definition of ‘judicial activism’ (JA) both as a jurisprudential concept and even as a term of speech despite the fact of its being in use for centuries and that it has attained eminence in recent times. In reality, the definitions that are available do not only vary in their substance, but are also patently contradictory and may even be irreconcilable as will be discussed below.
As a concept, JA in the USA has been traced all the way back to the eighteenth century,19 while in the UK its judicial origins are ascribed to the judgments of Lord Denning within the 20th century.20 Prior to the more recent twentieth century discussions, scholars appear to have approached the notion of JA within the thematic context of what is sometimes loosely described as ‘judicial legislation.’ Even within such debates, the scholars’ definitions of the idea of ‘judicial legislation’ were quite varied. For Blackstone, it represented the very nature of the common law which empowered the judge to actively interpret the law and articulate his reasoning for his decision on given facts; for Bentham, ‘judicial legislation’ was a usurpation of the legislative function and a charade or miserable sophistry by the Courts. On the other hand, for Austin, the notion of ‘judicial legislation’ characterized the power that judges exercised to make rules which obtained ‘as law’ through the acquiescence of the sovereign as the only authority and power entitled to make law. To that end, there were divisions over a definition and more prominent authors took sides on either side of the debate.
18 Bradley, A, & Ewing, K. (1997). Constitutional and administrative law. London: Longman. 19 Green Ch. 1 (n 89) 1202. 20 Hon. Justice M Kirby, Judicial Activism: Authority, Principle and Policy in the Judicial Method (Sweet & Maxwell, 2004) 3. 13
Student no: 005-178
As a term of speech, ‘Judicial Activism’ is said to have been coined first in the USA in the year 1947 by Arthur Schlesinger in his article ‘The Supreme Court: 1947.’21 However, it has been correctly observed that Schlesinger did not set out to offer any definition of the term but rather presented his analysis as a simple profile of all the Supreme Court Justices in office at the time his article therefore divided the Justices into two broad categories of ‘judicial activists’ and ‘champions of self-restraint’.
The inconsistencies and contradictions in the various definitions of JA come out most prominently when discussing the definitions by the different authors.
2.3.1 Is it when Courts ignore Precedents
The term JA has been applied to Courts that have, in the view of those using the term, ignored precedent. The definition of JA as ignoring/disregarding precedent has provoked intense debate among scholars and as such is the matter of discussion towards the Presidential election case.
Defining JA in terms of ‘ignoring precedent’ can be quite misleading: Firstly, that approach glosses over fundamental adjudicative differences between Civil and Common law systems with their distinctive treatment of precedent respectively and secondly the critique oversimplifies the complex process that judicial precedent is in a common law system.
In the first place, it would be fair to suggest that those who define JA in simple terms of disregarding/ignoring precedent do not adequately account for the flexibility permissible within the common law doctrine of judicial precedent, in so doing they proceed from a definitional premise that renders it impossible to distinguish that approach from the kind of unbridled departure from established legal principles (as embodied in previous judicial decisions) also characterized as judicial activism. Even though the common law doctrine of precedent has been a subject of much debate in its own right, it must be acknowledged that it confers inherent flexibility to a common law court through the fundamental rule that decided cases must be followed unless they are distinguishable from the case at hand. By allowing decided cases to be distinguished or explained away as fundamentally different to the issues in question, the common law has a built in mechanism for judicial maneuver in adjudicating legal issues.
21 Ibid 1446; Green (n 3) 1202. 14
Student no: 005-178
Secondly, those who define JA in terms of disregarding/ignoring precedent do not often make a distinction between vertical and horizontal precedent. Complexities might further arise from the fact that the binding nature of precedent also depends on whether the case is one from a court of superior jurisdiction (vertical precedent) or of the same level as the court deciding the case (horizontal precedent). In most common law jurisdictions, the binding nature of vertical precedent is more coercive than horizontal precedent. For instance, in the UK, the House of Lords clearly affirmed the centrality of the doctrine of precedent to common law adjudication by stressing that it provides some degree of certainty upon which individuals can rely in the conduct of their affairs as well as a basis for orderly development of legal rules, nevertheless the House of Lords simultaneously explained that a common law court can depart from a previous decision when it appears right to do so because it recognizes that too rigid an adherence to precedent may lead to injustice in a particular case and also unduly restrain the proper development of the law. Further complexity may be attributed to the fact that the actual rules of precedent.
2.3.2 Is it when the Courts ignore Legislative Enactments?
One scholar defines judicial activism as any occasion where a court intervenes and strikes down a piece of duly enacted legislation. Even though this definition in its broad generalization does not represent the views of all academic commentators, a considerable number of scholarly articles from different jurisdictions have employed the invalidation of legislative enactments as a measurement of judicial activism (if only in part).
A good example of this sort of JA may be exhibited in the case of Kafantayeni v attorney General22 the Malawi High Court invalidated the mandatory death penalty imposed on murder and recommended that all prisoners initially given a mandatory death sentence were entitled to a new sentencing hearing. The Court ordered each of the accused to be brought once more before the High Court for a Judge to pass such individual sentence on the individual offender as may be appropriate, having heard or received such evidence or submissions as may be presented or made to the Judge in regard to the individual offender and the circumstances of the offence. The High Court made clear that these individualised sentencing proceedings must provide each offender with an opportunity to present additional evidence and submissions in support of a lesser sentence, an opportunity denied to those sentenced under the mandatory death penalty regime.
22 Constitutional Case No. 12 of 2005. 15
Student no: 005-178
The Court emphasised that the sentencing scheme must provide convicted persons an opportunity to show why such sentence should be mitigated, based on the detailed facts of the particular case or the personal history or circumstances of the offender.
The above case, presenting how the judiciary shifted from the enacted law imposing the death penalty, and presented a new means of adjudication for those who had been sentenced under such law.
2.5 Separation of Powers
The modern design of the doctrine of separation of powers is to be found in the constitutional theory of John Locke who in his Second Treatise of Civil Government (1869) claims that it may be too great a temptation for the humane frailty, apt to grasp at powers, for the same persons who have power of making laws, to have also in their hands the power to execute them, whereby they may exempt themselves from the law, both in its making and execution to their own private advantage.
What this means is that specific functions, duties and responsibilities are allocated to distinctive institutions with a defined means of competence and jurisdiction. It is a separation of three main spheres of government, namely, legislature, executive and judiciary. Ordinarily, if one of the three spheres of government is responsible for the enactment of rules of law, that body shall not also be charged with their execution or with judicial decision about them. The same will be said of the executive authority, it is not supposed to enact law or to administer justice and the judicial authority should not enact or execute laws. An independent judiciary enables judges to follow the facts and the law without fear or favour, so as to uphold the rule of law, preserves the separation of governmental powers and promotes due process. It is instrumental to the pursuit of other values, such as the rule of law or other constitutional values, of which separation of powers is also an important integral part.23
Two main schools of thought compete to analyse the separation of powers questions in an attempt to understand the application of the concept. These are, the ‘pure’ and ‘partial’ separation theory. The pure approach emphasizes the necessity of maintaining three distinct
23 Burbank, S. B., & Friedman, B. (2002). Judicial Independence at the Crossroads: An Interdisciplinary Approach. Thousand Oaks: SAGE publications. 16
Student no: 005-178 branches of government based on function: one to legislate, one to execute and one to adjudicate. Each branch is expected to exercise power only assigned by it. On the other hand, partial separation theory like the pure separation theory recognizes that each of the three branches has a core function and that it is most critical to maintain separation around these core functions. However, it also posits that the overlap beyond the core functions is necessary and even desirable and paints a picture where each of the institutions of the state is given some power over the others; deliberately constructing their functions to overlap.24
The 1994 Malawi Constitution does not explicitly provide for the doctrine of separation of powers, however, due to the Republic of Malawi's background, which displays a history in which the judiciary was muzzled and could not protect the Constitution or the people of Malawi effectively, the concept of separation of powers was highly conversed in all discussions involving the drafting of the Constitution.25 It was recommended and agreed that it be included in the Constitution in order to have a distinction or separation of powers among the three organs that constitute a State: the Legislature, the Executive and the Judiciary.”26 In simple terms the principle of separation of powers, the powers and functions of the state are distributed among the legislature, the executive and the judiciary, with no single organ of state or government exercising complete authority. As Justice Chipeta once put it, no organ of government is more government than the others.27
This, theory is based on what Montesquie wrote and propounded in 1748, in his book, The Spirit of the Laws, that if power is accumulated in few hands, liberty is in jeopardy. Montesquieu put it aptly when he wrote:
“Political liberty is to be found only when there is no abuse of power. But constant experience shows us that every man invested with power is liable to abuse it, and to carry his authority as far as it will go… To prevent this abuse, it is necessary from the nature of things that one power should be a check on another… There would be an end of everything if the same person or body, whether of the nobles or of the people, were to exercise all three powers.”
24 Barber, N. W. (2001). Prelude to the Separation of Powers. Cambridge Law Journal, 60(1), 59–88. 25 Malawi Law Society, (1994), 2. See also the Scottish Faculty of Advocates (1992), 25, and NCC (1994), 4. 26 Legal Resources Centre, Constitutional Symposium, Blantyre, 3-5 February 1994, Recommendation. Page 2. 27 “ Judicial Independence vis-à-vis the Executive and the Legislature”, by Honourable Justice Chipeta, a seminar paper presented in 2005 17
Student no: 005-178
The Constitution has captured this doctrine in the provision for separate status, functions and duties of the three organs of the State.28 Thus, the three functions of governing the country, making laws and presiding over cases in accordance with the law, should be performed by different institutions. It is observed that the focus is not on power but on function, duties and responsibilities.
The dictionary meaning of function is; purpose, role, job, occupation, task and utility and the dictionary meaning of power is authority, control, influence, supremacy, rule, command, clout, sway and dominance. It is argued that the drafters of the Constitution envisaged a government that would not focus on controlling the people of Malawi but will discharge its duties solely for the benefit of the people in accordance with section 12 of the Constitution which is based on the doctrines of both social contract and social trust. Social contract theory entail that people delegate and entrust authority to some individuals among them to govern social trust entails social interaction and interdependence to attain a common goal.29
2.6 Constitutionalism
There are many theories about constitutionalism. Generally, constitutionalism refers to a system of government based on a constitution, a government which demonstrates adherence to the principles of the constitution. Within the concept of constitutionalism is the idea of limited, open, transparent and accountable government which must truly represent the will of the people and not simply smoke-screen the will of the people. Constitutionalism is there to tame wayward governments that see no limits to their powers or simply ignore such limits in the guise of pursuing a common or greater good. Constitutionalism ensures that governmental powers are limited beyond theory, and in practice.
Most Southern African states like Malawi have good and progressive democratic constitutions. However, a good constitution does not of itself guarantee constitutionalism. Neither does constitutionality guarantee constitutionalism. A half-hearted democrat who is armed with a good democratic constitution will not necessarily be committed and will not practice constitutionalism.
28 Malawi Constitution, Act 20 of 1994. Sections 7, 8 and 9 of the Constitution. 29 Garton Kamchedzera, ‘Access to Property, the Social Trust, and the Rights of the Child’, PhD Dissertation, (Cambridge; University of Cambridge, 1996), at 39. 18
Student no: 005-178
In fact, half-hearted democrats will seek to find fault even with the very best democratic constitution. Southern African states are characterized by executive dominance and continue to slide towards the “big-man” rule. Some countries there appear deliberate efforts to discredit and alienate the judiciary from society with a view to render the judiciary ineffective or compliant.9 For these reasons, and others, constitutionalism in Southern Africa is particularly challenging.
The role of the courts when it comes to constitutionalism is very challenging indeed. As Justice Michael Kilb observed in his work “Comparative Constitutionalism: An Australian Perspective” when reflecting on the lessons of the Australian experience, the text of the constitution is obviously central to the work of the courts. Yet there are other features of national and legal life that can sometimes be just as important, such as the existence of strong democratic and judicial institutions working in general harmony with each other, the existence of independent judges who strive to apply the law neutrally and within a culture that seeks to do justice according to law.
Admittedly in constitutionalism courts go beyond enquiring into the constitutionality of laws. Courts play a vital role in ensuring that the constitution continues to have relevance to society, often breathing life into the text of the constitution and render it relevant to cotemporary circumstances. Upholding the rule of law, as the courts do, is not just for the popular and dominant majority. A constitution would serve no useful purpose if it failed to protect the weakest, poorest and most vulnerable including the minority. The test of strong or entrenched constitutionalism is whether it protects the weakest and the minority in the same way it does the elite, the powerful and the popular and dominant majority. The powerful will be assured of protection when the constitution effectively protects the weak and the minority.
Nkhata30 makes a case for a trust-based approach to constitutionalism. However, he does recognize the central role the courts would play in entrenching constitutionalism. Nyondo31 invites the judiciary to make its long term project to adopt transformative constitutionalism for social transformation in Malawi. He draws lessons from South Africa where transformative
30Nkhata, Mwiza Jo, “Rethinking Governance and Constitutionalism in Africa: The Relevance and Viability of Social Trust-based Governance and Constitutionalism in Malawi” LLD Thesis 2010. 31 Nyondo, JM2010, Constitutionalism in Malawi 1994-2010: A Critique on Theory and Practice, LLM dissertation, http://upetd.up.ca.za/thesis/available/etd-05272011-132657/.../dissertation.pdf accessed 24th June 2011. (Published 27th May 2011)
19
Student no: 005-178 constitutionalism has taken root and has proved successful. The work of both Nkhata and Nyondo demonstrates the centrality of the judiciary in constitutionalism.
It is by no means being suggested here that the judiciary is the only role player or stakeholder when it comes to constitutionalism. While other authors subscribe to the view that constitutionalism is a dynamic evolving process involving a range of role players and stakeholders with specific mandates tied together by and based on the national constitution, he finds it difficult to accept the extreme views of theorists of popular constitutionalism who seek to do away with the power of judicial review and give the courts no role to play in constitutionalism on the ground that judges are not elected individuals.
2.7 Rule of Law
The rule of law envisages that everyone is subject to the discipline and sanctity of the law. No one shall set himself above the law no matter what position they occupy in society. Actions of all and sundry must conform to the law. The rule of law is the antithesis of the existence of wide, arbitrary powers in the hands of the executive or the legislature. Society is required to observe the rule of law if it is to be orderly. Rulers have an even greater obligation to observe the rule of law at all times in order to reinforce the rule of law and eliminate the possibility of the emergence of the rule of men. The rule of law is predictable. The rule of men is unpredictable. The mechanism of judicial review ensures that the rule of law is adhered to by all those performing public functions. Executive decisions and legislative enactments which fall outside the framework of the rule of law must be declared invalid if the executive and the legislature must be compelled to observe the rule of law. This will ensure enjoyment by the individual of the rights and liberties guaranteed by the constitution. Thus an independent judiciary is a critical element to the rule of law.
Raz32 argues that the rule of law is intended to correct dangers of abuse that arise from law. According to him, the law inevitably creates a great danger of arbitrary power, with the rule of law being designed to minimize this danger created by the law itself. This implies that before you even get to the rule of law, you must understand what law is and the dangers to which it gives rise. Contrary to the arguments of Raz, the rule of law is an ideal designed to correct
32 Raz, J. (1979). The Rule ofLaw and its Virtue. In The Authority of Law: Essays on Law and Morality (pp. 212– 228). Oxford Scholarship Online. https://doi.org/10.1093/acprof:oso/9780198253457.003.0011 20
Student no: 005-178 dangers of abuse that arise in general when political power is exercised, not dangers of abuse that arise from law in particular. Indeed, the rule of law aims to correct abuses of power by insisting on a particular mode of the exercise of political power; governance through law.
Independence of the judiciary, is considered a necessary precondition for the observance of separation of powers and also for the achievement of the rule of law. Lord Woolf33 claims that one of the most important responsibility of the judiciary is to uphold the rule of law since it is the rule of law which prevents the government of the day from abusing it powers and it is this rule of law which ultimately stops a democracy from descending into an elected dictatorship. All this hinges on the independence of the judiciary. Woolf includes another important aspect to the relationship which is the perception of independence, whereby, the judiciary actually upholding the rule of law is not enough. It must also be seen to be independent and in the case where an impression is created that the judiciary is not separated from the executive, then however genuinely it prevents abuse of power by the executive, its decisions, especially those that uphold executive action, can never be trusted to have been devoid of executive influence.
The rule of law’s demand of equality before the law, impartiality in court decisions, and the power of courts to protect rights and review government action, are ends secured and protected by an independent judiciary. Both concepts place the judiciary at the center of the power balance by identifying it as the equilibrium upon which the interests of the state and the citizens are to be deliberated and determined. To this extent, the judiciary must be independent in order to effectively play its role of bringing about the realization of the rule of law.
2.8 Gaps in the Literature
Notwithstanding, despite the idealistic appeal of the independence of the judiciary doctrine, some rational politicians, still, would not really want courts to enjoy complete decisional independence, meaning, freedom to decide a case as the court sees fit without any constraint, exogenous or endogenous, actual or prospective. Basically, courts are institutions run by human beings and human beings are subject to selfish and/or evil motives, and even moral paragons differ in the quality of their mental faculties and in their capacity for judgment and wisdom. As the reference to the rule of law may suggest, completely independent courts in this sense would
33 Woolf, H. (2004). The Rule of Law and a Change in Constitution. Cambridge. 21
Student no: 005-178 also be intolerable because they would render impossible the orderly conduct of the social and economic affairs of a society.34
As noted in the Malawian Election Case as well is that even though the Constitution has provided a rosy picture of separation of powers and an independent judiciary, its practicality still remains up for debate as these powers tend to overlap and face difficulties being compartmentalized. Equally, there still remains an inherent measure of competition and conflict among the three branches of the government.
Again, citizens would not turn to courts for the resolution of their disputes if the result of each case were an immaculate conception, worthless for the governance of future conduct and, to citizens unguided by authoritative norms, apparently in conflict with the decision in another case involving similar facts and similar equities. Thus, once a political society accepts the importance of law for the prospective governance of human affairs, it to some extent brings about some difficulty for courts to be accorded complete decisional independence. It is also important to note that most developed political society’s give preference to law made by legislatures. In such societies courts have the obligation to interpret and apply legislative law, with which obligation complete decisional independence is obviously and fatally inconsistent.
Also, law has been used to create a climate of social order, justified by its benefits to members of society. Despite this, the issue whether human made laws are exact machinery to serve justice and fairness to all the society is always questionable. Many consider the proper implementation of laws as a justice but since every law has its own political, sociological, philosophical and historical background in a given society, it will almost always benefit and harm different groups in society and whether it actually serves justice to all of society is still up for debate especially when it comes to the hearing and deciding of presidential election in Malawi.
Additionally, in line with realist thought, it is also important to understand that a state’s national interests come first, at times even before the law. For instance, in the United States of America, no federal or state court has ever enjoyed complete decisional independence and if that is what the independence of the judiciary is taken to mean, as a historical matter it is, indeed, a myth that requires much deeper critical analysis especially in the Malawian context.
34 Burbank, S. B. (2003). What Do We Mean by “Judicial Independence”? Ohio State Law Journal, 64(323), 1–10. 22
Student no: 005-178
Chapter 3
Research Design and Methodology
3.1 Introduction
This thesis employed the use of qualitative methodology. Reason for adopting this method was that qualitative research was able to provide complex textual descriptions of how people experience a given research issue. It provided information about the ‘human’ side of an issue, which often consisted of, contradictory behaviors, beliefs, opinions, emotions and relationships of individuals. The qualitative research method was also effective in identifying intangible factors, such as social norms, practices and mindsets whose role in the research topic may have not been readily apparent.
The interaction between the individuals and the judiciary is laden with values, moral judgments and perceptions and that determines how citizens relate to it as a legal system institution and whether they will respect the law or opt for non-legal methods in resolving their disputes. Law, being a reflection of social values of a society, further supported the need for a qualitative research design.
The paper also adopts a Desktop research methodology. Desk research refers to secondary data or that which can be collected without fieldwork. To most people it suggests published reports and statistics and these are certainly important sources. In the context of this chapter the term is widened to include all sources of information that do not involve a field survey. This most certainly will include searching libraries and the internet.
The work has been organized into five chapters. At its most modest, this research seeks to fill an empirical gap by analysing the determinations made recent election case which occurred in Malawi. At a more ambitious level, I set out to interrogate the dynamic intercourse between the various decisions made in the case towards constitutional theories and constitutional interpretation methodologies.
23
Student no: 005-178
3.2 Population and Study Sample
The target population of the research comprised mainly of the Malawian Judiciary together with its practitioners, namely, judges. Additionally, practitioners in the field of law and advocacy and political stakeholders shall be part of the study population. The judicial arm represented the entirety of the subject matter since they had common observable features of interest to the research while the practitioners provided a much deeper analysis and answers regarding judicial independence.
The proposed research sample size was 8, consisting of two judges, two magistrates and four lawyers who have dealt with judicialised politics. However, only one judge and four lawyers responded to the interview. This was attributed to time constraints, sensitivity of the subject matter and the difficulty in personally engaging members of the bench, due to the Corona virus pandemic. 3.3 Sampling Procedure
Participants of the research were selected based on their particular characteristics that are of interest to the thesis. In this case the respondents were specific persons with in-depth knowledge and experience in issues regarding the judicial independence, politics and the presidential election case.
As a result, purposive sampling was used as it facilitated grouping participants according to preselected criteria relevant to the research questions and involves the conscious selection by the researcher of certain persons to include in a study.
3.4 Data Collection
This thesis relied on primary and secondary sources of data which were picked based on their reliability and suitability on the subject matter which is the independence of the judiciary and the case of Saulos Chilima and Lazarus Chakwera v Electoral Commission and AP Mutharika; Ex Parte: Malawi Congress Party and Another. The primary sources included interviews from respondents while the external secondary data sources used in this thesis included books, journals, statutes, constitutions, case law, magazines, newspapers, government policy papers,
24
Student no: 005-178 research papers, reports both official and unofficial, statistics, mass media records and web based materials.
3.5 Ethical Consideration
First, respect for the respondents was achieved through ensuring their autonomy and protection from exploitation during the interviews. Second, the dignity of all research respondents was respected by ensuring confidentiality at all times and minimizing the risks associated with research. Finally, the research was committed to ensuring a fair distribution of the risks and benefits resulting from research where those who take on the burden of research participation also shared in the benefits of the knowledge gained
3.6 Data Analysis
Content analysis was developed decades ago as a method to systematically read and analyse texts. Researchers can apply content analysis to texts of any kind, including legal documents such as trial court records, statutes and regulations.
This thesis, relying heavily on both local and international legal instruments, case law, statues and publications such as books and journals used content analysis to analyse the data. Content analysis provided a platform for the construction of meaning in texts. It comprised of the search for underlying themes in the data being analysed where a theme was a category identified by the thesis through data that relates to the research questions and provided the researcher with the basis for a clearer understanding of the data that could make relevant contributions to the literature gaps relating to the thesis focus.
The content analysis of case law for this thesis was done in two stages;
3.4.1 Systematic Case Selection
This was based on the researcher’s judgment about which cases are worth reading, that is, which are the leading cases that best illustrate the legal issues in question and which opinions might best answer the research questions.
25
Student no: 005-178
3.4.2 Systematic Case Coding
Here, features of cases worth studying and of relevance to the thesis were articulated. To boot, the coding of cases, even for just qualitative description and analysis, strengthened the objectivity and reproducibility of case law interpretation.
Content analysis was also used to analyse text data from books, journals, statutes, constitutions, constitutional provisions, past case law, magazines, newspapers, government policy papers, research papers, reports both official and unofficial, statistics, mass media records and web based materials. The findings from content analysis were then used to provide more literature, understanding and correlation of the independence of the judiciary, rule of law, the separation of powers doctrine and justice in respect of court decisions on presidential election petitions.
26
Student no: 005-178
Chapter 4
Data Analysis and Implementation
4.1 Introduction Scholars observe that although there is an international convergence, especially in new democracies regarding what an independent and an impartial court is, requirements for the implementation of the independence of the judiciary persist as challenges due to different legal systems in different states. However, are the practical challenges regarding the principle of the independence of the judiciary really about the differences that exist in terms of legal systems, or rather, has much to do with the cultural attitude and politics within these states? This chapter shall present and analyse data on the presidential elections case, with regard to judicial activism as an element of judicial independence.
4.2 Electoral System in Malawi
Malawi follows an executive type of Government. This entails that the Party whose candidate wins as a President forms Government. The President is therefore elected directly and concurrently with general elections for members of the National Assembly.
There are therefore two types of elections, Presidential and Parliamentary. The system of elections is governed by the Constitution and the Parliamentary and Presidential Elections Act. In 2010, Parliament amended the Local Government Election Act in order to pave way for tripartite elections.
Specifically, the Constitution makes provision that the President shall be elected by a majority of the electorate through direct, universal and equal suffrage. The Parliamentary and Presidential Elections Act makes provision for the determination of results of a general election for the President and members of the National Assembly. The candidate who has obtained majority of votes at a poll shall be declared by the Electoral Commission to have been duly elected
There seems to be a contradiction between the Constitution and the Parliamentary and Presidential Elections Act in the determination of results for the President. However the matter was resolved by the Malawi Supreme Court of Appeal in Gwanda Chakuamba 27
Student no: 005-178 and others vs. the General Attorney, the Electoral Commission and the United Democratic Front where, primarily two issues were put before the court for interpretation: the meaning of “electorate” and “majority”, as envisaged by the Constitution and the Parliamentary and Presidential Elections Act. In the opinion of the court, “ electorate ”, for the purposes of section 80 of the Constitution, means “ registered voters that have exercised their right to vote”
The court went on to say that “where a majority is required before a particular course of action is taken the word ‘majority’ should be interpreted as requiring a majority of those voting and not those entitled to vote. A different interpretation would mean that those who have not voted will in effect be treated as voting against the candidate that has the support of the largest number of those who have arisen to vote. It would be against the values of an open democratic society to suggest that the vote of those entitled to vote but have not exercised it should be taken into account in the result of the election. It would amount, in our view, to giving the right to invaluable poll to those people who have chosen not to cast their vote.”
Majority” was defined by the court as “the greater number or part dismissing the appellants argument that “majority” should be interpreted as fifty per cent plus one, the court had this to say: the provision that requires a presidential candidate to obtain fifty per cent plus one before he or she is duly elected is a major constitutional provision which cannot be left to be implied. And the Constitution or an Act of Parliament must have made further provision on what will happen if the expressed majority is not achieved.
The totality of the reasoning in the Gwanda Chakuamba case is that First-Past-the-Post system should be the system used for the purposes of determining election results in Malawi. And indeed this has always been the case until now as a result of the recent Chilima case which has moved away from such interpretation.
4.3 Judicial Independence in Malawi
The Malawian judiciary's political role is of recent origin at least in the narrow sense of adjudicating matters related to the competition for political office. Previously, during the subsistence of the colonial and post-independence one party state, the judiciary played an important political role only in the broader sense, by upholding the dominant economic, social
28
Student no: 005-178 and economic relations of the time. However, it was during the political transition following the adoption of a liberal democratic constitutional order in 1994 that it started to take on a more definite role towards presidential election.
4.2.1 The 1993 referendum
The most significant formal political event of Malawi’s transition from a one-party state run by a “Life President” was the National Referendum held on 14 June 1993. The referendum question was whether Malawi should become a multiparty state. The referendum and the political dynamics surrounding it gave rise to a number of disputes whose resolution by the judiciary was indicative of an emerging willingness by the judiciary to assert itself in constraining the abuse or excess of power by state institutions such as the Independent Referendum Commission, government ministries and the police.
The High Court was particularly active in deciding cases arising out of the referendum. It was this court that, reversed a decision of the Referendum Commission barring members of the army and police from voting, constrained the police from operating permanent roadblocks, from banning certain people from addressing public rallies, and from barring people in custody from meeting their lawyers without the permission of the Inspector General of Police. And when Du Chisiza, a popular actor who acted in plays that were perceived by the government as campaigning against it in the referendum debate, was effectively banned from performing in secondary schools, the High Court held that the ban issued by the Minister of Education was an abuse of power and, therefore, invalid.35
The involvement of the High Court in resolving conflicts arising out of the referendum was significant in at least two respects. In the first place, the decisions of the court enabled various individual stakeholders to enjoy their specific right of being able to participate fully in the referendum. Secondly, the decisions had a significant impact on the broader legal and institutional framework. In both instances, the courts effectively sought to unblock the channels of participation and level the referendum playing field, and thus performed a democratic accountability function in the context of a non-democratic regime.
35 Du Chsiza jnr v Minister of Education Civil Cause no. 10 of 1993. 29
Student no: 005-178
These judgments, decided in the last period of the Banda dispensation, before the adoption of the democratic constitution, also shows that if judges are sufficiently creative in the use of procedural laws, they can circumvent restrictions that may undermine accountability.
This is how the High Court managed to rely on the general unwritten principles of democracy to protect the exercise of key rights such as the right to vote, the freedom of expression, the right to freedom of movement and the right to legal representation even though the Constitution in force at the time provided no explicit guarantees of human rights.
Although the courts in the transition period on important occasions constrained the abuse of power, safeguarded human rights and promoted democratic principles, this was not always the case. In a number of cases most notably Chakufwa Chihana v The Republic,36 and Muluzi and Thomson v Attorney General,37 the courts upheld laws that undermined the enjoyment of human rights and democratic participation. In both cases, the High Court (and in the former case, the Supreme Court of Appeal as well) made decisions that did not advance the process of democratization. The courts justified the conservativeness of their decisions on narrow technical grounds, namely the technical meaning of the term sedition, in the Chihana case and the exemption of government from injunctions by the rules of civil procedure.
As indicated earlier, the High Court had, in most referendum cases, managed to uphold various human rights in the absence of explicit guarantees of human rights by appealing to broad principles. The failure of the courts in the Chihana and Muluzi & Thomson cases to overcome the technical limitations in favour of broad principles of democracy was, therefore, probably attributable to political choice rather than conceptual inevitability.
4.2.2 1994 Elections
The first multiparty elections were held in 1994 and the results broke down almost entirely along regional lines. Soon after the 1995 election, the United Democratic Front (UDF), from the south, entered into an alliance with the AFORD (Alliance for Democracy) party from the north.
The courts were also actively involved in the events surrounding the parliamentary and presidential elections held in 1994, performing its accountability function by enforcing rules of
36 Chakufwa Chihana v The Republic, Criminal Appeal No.9 of 1992 37 Muluzi and Thomson v Attorney General, Civil Cause No.66 of 1993 30
Student no: 005-178 the election. The courts performed this function in relation to nominations, such as in In Re Nomination of J.J. Chidule38 in which the High Court held that a person qualifies for nomination to contest for a parliamentary seat if he or she is registered in any constituency in Malawi, and not necessarily in the constituency in which he or she intends to contest. And in Malenganzoma v the Electoral Commission, the High Court upheld the authority of the Electoral Commission to determine whether a prospective parliamentary candidate has the necessary language proficiency required by the Constitution.
The courts also enforced the rules of the election at other stages of the electoral process, including polling and counting of votes.39 In the aftermath of the elections, when the parties were converting their electoral mandate into positions and power, the judiciary was also called upon to decide disputes over representation and the division of powers between the different political bodies.
The period between 1993 and 1996 should be seen as the time when the judiciary established itself as the primary custodian of the values of democracy. During this period, the political authority of the judiciary was consolidated by default because unlike the executive and parliament which were undergoing radical transformation, the judiciary survived the transition intact, with the same personnel and largely the same institutional framework. In the lacuna created by the transitional state of the executive and parliament, therefore, the judiciary was able to assert and expand its authority and power, with little or no resistance from the other branches.
4.2.3 The 1999 elections
In comparison to the 1994 elections, the 1999 elections generated more judicial intervention both qualitatively and quantitatively. A wider range of institutions involved in the electoral process came under judicial scrutiny and the range of issues became more varied. In terms of institutions, the Electoral Commission was the object of most judicial action. The High Court and the Supreme Court of Appeal exercised their accountability function in relation to the Commission by ordering it to comply with a wide range of legal duties related to the electoral process. In a
38 Civil Cause No. 5 of 1995. 39 Election petitions include Chikweza v The Electoral Commission, Civil Cause no. 1061 of 1994; and Phoso v The Electoral Commission Civil Cause No. 1271 of 1996. 31
Student no: 005-178 number of cases, the courts constrained the Commission from abusing its power. In the politically significant cases, the Commission was ordered:
to register prisoners as voters; to accept the nomination papers of a presidential candidate who had chosen to contest with a vice-presidential candidate from another party to ensure that elections were free and fair; 17 and to set the date of polling in accordance with the Constitution regardless of a contrary provision in the Parliamentary and Presidential Elections Act.
In all these cases, the courts promoted democracy by enhancing voter participation, facilitating coalitions among contesting parties by allowing them to contest jointly in the presidential election and promoting constitutionalism over the dictates of statutory electoral laws. The fact that the decisions were made against the Electoral Commission, however, had the potential of adversely affecting the relationship between the Commission and the courts, with the Commission feeling that the latter was usurping its authority to set standards for the conduct of the elections.
To be fair though, the courts did not question the Commission’s authority in all cases. On at least two occasions, the High Court upheld decisions of the Commission: In the case of The Attorney General v Chakuamba, Kalua and Mnkhumbwe in which the results of the presidential election were challenged by most of the candidates who had contested in it, the courts upheld the Commission’s pre-eminent authority to conduct elections. The High Court reiterated this view in the case of Kafumba v Electoral Commission,40 in which it held that the Electoral Commission had the primary authority to handle complaints related to the elections and that a complaint related to elections cannot be lodged with the courts unless it had first been made to the Commission.
Another institution that came under judicial scrutiny in the 1999 election period was Parliament. In the period between 1994 and 1999, the relationship between the courts and Parliament was shaped through cases questioning the extent to which the courts could legitimately interfere with decisions made by Parliament, which was authorised by the Constitution to regulate its own
40 Civil Cause No. 30 of 1999. 32
Student no: 005-178 procedure. In the only case that the High Court has decided on political party funding, the court took an interventionist approach and reversed a parliamentary decision suspending the disbursement of funding to the Malawi Congress Party which was boycotting parliamentary sittings in protest against what the party considered to be unprocedural conduct of business by Parliament. The court held that Parliament’s constitutional duty to disburse funding to parties that had won at least 10% of the vote at the last national election could not be abrogated by the National Assembly, even during a period in which the party was boycotting sittings of the Assembly. The courts were, however, not consistent in their willingness to intervene in “internal” affairs of Parliament. For example, in the case of The State v the Electoral Commission, ex. p. Chakuamba, 41 the High Court declined to deal with a complaint of a Member of Parliament regarding action taken by the Speaker in the National Assembly on the ground that the Constitution gives the Speaker immunity.
In addition to the Electoral Commission and Parliament, the Malawi Broadcasting Corporation also found itself the subject of judicial action in relation to the election. In the case of Kafumba v Electoral Commission and Malawi Broadcasting Corporation, the High Court ordered the Malawi Broadcasting Corporation to give balanced coverage of campaign activities of both the ruling party and the opposition.
As a general assessment the judiciary performed its independence function reasonably well in this period. Although there were clear deficiencies in the way the 1999 elections were conducted, the courts contributed positively to the integrity of other institutions complied with adverse judgments.
Compared to the 1994 electoral process, the 1999 elections the results were to a greater extent disputed including the presidential election, the court became more prominent.
4.2.4 2004 Elections
In the context of the 2004 elections, the High Court made a number of decisions that related directly or indirectly to laws and rules governing various aspects of the elections, including the eligibility of presidential candidates “crossing of the floor” by MPs elected on party tickets and the necessary qualifications for the Chairperson of the Electoral Commission.
41 Miscellaneous Civil Cause No. 68 of 2000. 33
Student no: 005-178
Since the 2004 election period commenced at the end of the, 1999 elections, three factors dominated the political discourse and activity. The first was the campaign for an extension of the term of office of the President beyond the maximum two consecutive terms stipulated by the Constitution. The second was the capacity of the Electoral Commission to conduct free and fair elections, while the third was the role of civil society organisations in the electoral process. The judiciary played a significant role in all three areas.
In a number of cases, the High Court and the Supreme Court of Appeal enforced judicial independence, resolved disputes and provided a safety-valve for venting political frustration. In other cases, parties used the courts to gain political leverage.
One of the most significant political developments during the early part of the 2004 electoral period was the attempt by the United Democratic Front to secure an amendment of the Constitution in order to allow presidents to be in office indefinitely or for a maximum of three consecutive terms. Some sections of the public planned to stage protests but the President banned demonstrations for or against the proposal. The ban was challenged in the High Court which eventually ruled that the ban was unconstitutional. This decision, among other things, created the space within which the constitutional framework governing elections could gain legitimacy through free debate in all forms, including assemblies and demonstrations. The action of the court in this case had a positive effect on the participatory quality of the political process leading up to the 2004 elections. and arguably contributed to democratic consolidation.
The case was probably one of the most significant of the 2004 elections for the additional reason that it was one of the exceptional cases in which the courts articulated explicitly the broad democratic principles that underlay the framework of rules for the elections.
The court went beyond merely stating that the President’s ban was contrary to section of the Constitution that guarantees every person the right to freedom of assembly and demonstration. It conceptualised the protection and enforcement of specific human rights, as a means to the higher-level objective of democracy. In response to the argument that the ban was necessary to maintain order, even if this was at the expense of some freedoms, the court stated as follows:
“Every Malawian who is mature enough will remember that for 30 years, this country “enjoyed” peace and quiet, law and order that was devoid of the rights and freedoms and
34
Student no: 005-178
the social justice now enshrined in our Constitution. Taking judicial notice of the cases brought before this Court and the events in our National Assembly, very few Malawians want that kind of peace and quiet, law and order.”
In assessing the significance of this case, it is important to acknowledge the few other cases that linked specific legal rules within the framework of elections to broader political issues. In the 1999 election period, the High Court had unpacked a technical argument by lawyers of both sides in the case of Chakuamba and Chihana v Electoral Commission and identified the central contentious issue in the case to be the existence of an alliance between the Malawi Congress Party and the Alliance for Democracy.
One other issue that emerged as a major subject of judicial interaction after the 2004 elections was that of “crossing the floor” by Members of Parliament. The critical importance of the legal and administrative framework of elections motivates contesting parties to seek control over the law making and administrative machinery of the state. Since 1994, section 65 of the Constitution had provided parliamentary parties the instrument with which they have tried to re-shape the balance of power in the National Assembly after elections. The section empowers the Speaker of Parliament to declare vacant the seat of any Member of Parliament who have “crossed the floor” by voluntarily resigning from the party that sponsored him or her during the elections or joining an organisation or association that is political in nature.
It was in the numerous “crossing the floor cases” that the judiciary sought to define its proper relationship with Parliament. In the landmark Nseula case42, the High Court took the view that notwithstanding the traditional immunity of Parliament and its constitutional power to regulate its own procedure, courts may intervene and review its decisions. According the Supreme Court of Appeal in that case, declarations of vacant seats by the Speaker under section 65 of the Constitution involves constitutional interpretation and neither the Speaker nor the National Assembly itself can extend parliamentary privilege to the interpretation of the fundamental law of the country which is and must remain the constitutional responsibility of courts. This position, therefore, meant that the courts became the final arbiters in the battles to re-shape the balance of power in Parliament. Using this power, the courts largely prevented the alteration of the balance
42 Fred Nseula v. Attorney-General and Malawi Congress Party MSCA Civil Appeal No. 32 of 1997 35
Student no: 005-178 in almost all cases in which there were attempts to do so and preserved the balance as determined at the ballot box in the 1999 elections.
4.2.5 Recent 2019 Elections
Between 1994 and 2004 certain individual judges stood out, some for their independence and some for their perceived lack of independence. Despite rendering some bold judgments, the judiciary struggled to maintain their actual independence in the face of executive interference, as well as their perceived independence in the face of highly politicized, high-stakes cases.
Generally, the Malawian judiciary was, in the early post-transition years perceived to be relatively independent, while the reputation of Malawi’s courts was tainted during the Banda regime, it was not dismal. In addition, they had played an important role during the transition to democracy.
In light of the growth of democracy, the Malawian Court has genuinely presented its sovereignty and strict loyalty to the constitution. The Saulos case, resulting in nullification of the 2019 elections as a result of various malpractices and irregularities out rightly has given a very vivid picture of where the court stands.
As discussed above, though the Malawian court had presented a certain nature of independence, it still lacked that presence of self-decision making which may be noted from certain decision still being controlled and influenced by exterior factors such as the executive and Despite the numerous defective presidential elections that have been challenged in courts, Malawian courts have until this decision evolved a jurisprudence that has upheld all presidential elections, regardless of the severity of anomalies proved. Judges in presidential election petitions have tended to see themselves not as handmaids of the rule of law but simply there to confirm the announced results. Perhaps this jurisprudence was best stated in the Ghanaian presidential election judgment of 2013 when the Supreme Court stated:
36
Student no: 005-178
“For starters, I would state that the judiciary in Ghana, like its counterparts in other jurisdictions, does not readily invalidate a public election but often strives in public interest, to sustain it.”43
The Malawian Supreme Court deviates from this jurisprudence and correctly restates the role of the Court, which is independence of the judiciary and fidelity to the Constitution and the law, or as the Court rhetorically asked, “For what is the need of having a Constitution, if it is not respected?” The Saulos decision concretely incarnates the often recited but rarely respected independence of the judiciary.
4.4 Judicial Activism in Malawian Courts
As has been discussed in chapter 2, the term JA has contradictory and irreconcilable definitions as well as results. However, the usage of a definition proposed in this thesis to assess whether Malawian Courts have practised JA or not, would hinder comparative analysis. For this reason, we will analyse whether the Malawian Courts have practiced JA or not, using the criteria discussed in chapter 2. The aim is to situate the behaviour of the Malawian courts on a comparable basis to Courts in other jurisdictions before proceeding to analyse the impact of such JA (if any).
4.3.1 The Superior Court overturning its previous decisions
As discussed in Chapter 2, court’s that have ignored precedent have been described as courts that practice JA. This is especially the case for courts in a common law system where decisions of a superior court are binding on the superior court itself and lower courts. Thus the ability of a superior court to depart from its previous decisions has been construed as a sign of JA on the part of that Court.
Whereas the House of Lords in the UK came out with a Practice Direction to authorise a departure from previous decisions, the Supreme Court of Malawi did so through a subsequent judgment. The issue concerned the interpretation of Section 42 (2)(e) of the 1994 Constitution (providing the right to bail for detained or accused persons) vis-à-vis persons accused of murder. The section provides that:
43judgment of Atuguba JSC in Nana Addo Dankwa-Addo and others vs. John Dramani Mahama and others No. J2/6/2013 Judgement of 29 August 2013,.40 37
Student no: 005-178
“Every person arrested for, or accused of, the alleged commission of an offence shall, in addition to the rights which he or she has as a detained person, have the right- To be released from detention, with or without bail unless the interests of justice so”
In one of the earlier cases which was decided soon after the adoption of the 1994 Constitution MacWilliam Lunguzi v. The Republic44 the Supreme Court stated that the right to bail provided for under Section 42 (2)(e) was not an absolute right hence the judge had discretion on whether or not, having regard to the interests of justice, bail was to be granted. In the case of murder suspects, due to the seriousness of the offence among other factors, the Supreme Court held that bail should only be granted in very rare circumstances. The Supreme Court subsequently confirmed that position in another decision involving a murder suspect: that was the case of Amon Zgambo v. The Republic.45 However, in doing so the SC expressly declared its reliance on a common law principle to the effect that bail in serious offences must be granted with extreme care and caution, and further that in homicide cases the discretion was very unusual and rarely exercised. Consequently, the apex court held that bail in Malawi was to be granted to a capital offender only in the rarest of cases and only on proof of exceptional circumstances. Further, that the burden was on the accused person to prove the existence of such exceptional circumstances. The principles enunciated in Amon Zgambo case were predominantly the law in Malawi for almost a decade,7 until the case of Fadweck Mvahe and others v. The Republic.46
In that latter decision the three applicants who were charged with the offence of murder appealed against High Court decisions refusing to grant them bail on the ground that they had failed to show exceptional circumstances to entitle them to such bail. The Supreme Court in this case took the approach that the case had presented the court with an opportunity to re-examine its previous decisions on the subject. Even though the Supreme Court affirmed most of the principles enunciated in the Lunguzi Case, it also observed that the common law did not provide the right to bail as the Malawian Constitution does. For that reason, the Supreme Court overruled its earlier decisions in the Lunguzi and Amon Zgambo cases on the burden of proof being on the accused in a bail application. Thus the court stated that:
44 (1991) 1 MLR 632 45 MSCA Crim. App. No. 27 of 2005 (unreported 46 MSCA Criminal Appeal No. 25 of 2005 38
Student no: 005-178
…we hold…that the requirement of proof of exceptional circumstances by a murder suspect applying for bail in the High Court is not the correct approach, and should no longer be followed.
In so doing, the Supreme Court has set a novel precedent to the effect that it can, where necessary, indirectly hear an appeal against its own ‘erroneous’ decisions. Though this appears to be require otherwise. the only instance where the MSCA overturned its own decision in part, the decision revolutionised the right to be presumed innocent and the right to be released from bail in a country where long periods of detention before trial are a common experience. To the extent that such a judicial approach towards its own precedents was in fact unprecedented on the part of the Supreme Court it could be safe to describe the outcome as a manifestation of judicial activism of an interesting type.
4.3.2 Ignoring precedent from superior court
Ignoring precedent on the part of a common law court has generally been described as JA even though distinctions are not usually made between horizontal and vertical precedent. In this section we will restrict the discussion to incidents of ignoring vertical precedent (decisions of a superior court) since such decisions are binding upon the lower courts as distinguished from the discussion in section above.
The jurisprudence from Malawian Courts on the issue of locus standi has attracted a lot of debate and controversy especially among Malawian scholars where most have argued that the courts have adopted a restrictive interpretation of the constitutional provisions on standing. The Constitution provides for standing in two sections, namely Sections 15 (2) and 46 (2) respectively:
Any person or group of persons with sufficient interest in the protection and enforcement of rights under this Chapter shall be entitled to the assistance of the courts, the Ombudsman, the Human Rights Commission and other organs of Government to ensure the promotion, protection and redress of grievance in respect of those rights. And
Any person who claims that a fundamental right or freedom has been infringed or threatened is entitled
39
Student no: 005-178
a) To make application to a competent court to enforce or protect such a right or freedom; and b) To make application to the Ombudsman or the Human Rights Commission in order to secure such assistance or advice as he or she may reasonably require.
One of the earliest jurisprudence that came from the Supreme Court on this issue arose in the case of President of Malawi and another v. Kachere and others47. In this case, several individuals High Court styled as citizens of Malawi brought an action in the against the President and the Speaker of the National Assembly challenging the constitutionality of several of their actions carried out both in their official capacity and individually. Among the issues raised, was the issue of the appropriate procedure for amending the Constitution, the constitutionally appropriate candidates for the position of cabinet ministers specifically whether Members of Parliament were not ineligible and whether it was not a violation of the Constitution for the President and his cabinet not to declare their assets. The Attorney General raised preliminary objections in the matter inclu+ding the issue of the standing of the citizens of Malawi. The AG argued that citizens of Malawi had no locus standi in the matters. The High Court found that they had locus standi and the AG office appealed against that order before the Supreme Court.
4.3.3 Invalidating Legislation
In Malawi, the Constitution expressly provides for the power of a court of law to declare any act of Government or any law invalid if it is found to be inconsistent with its provisions. However, since the mere decision to invalidate a legislative enactment by the court has been described as JA by a considerable number of scholars from various jurisdictions, this section will highlight the cases in which Malawian Courts have invalidated a whole statute and specific provisions in some Statutes in order to place those decisions within comparative terms.
The first example of such cases is that of Sidik Aboobaker v. Attorney General.48 The case dealt with the Forfeiture Act, which like so many Acts enacted in the one-party regime, contained a provision which provided that any order made under it could not be challenged in any court of law. The 1994 Constitution most likely with the aim of curtailing such legislative
47Civil Cause No. 20 of 1995
48 Civil Cause No. 964 of 1994 (unreported). 40
Student no: 005-178 practices in Section 11 (4) provides that ‘any law that ousts or purports to oust the jurisdiction of the courts to entertain matters pertaining to this Constitution shall be invalid.’ On that basis, the Court declared the Forfeiture Act unconstitutional. It appears that this case is the only one so far, in which the Court has declared a whole Statute invalid, in the subsequent cases, it has only been dealing with specific provisions in some statutes.
Initially, cases challenging the constitutionality of statutes of their respective provisions were heard before a single judge of the High Court. Subsequently, the practice was amended to provide for the empanelling of a Constitutional Court by the Chief Justice comprising of three judges of the High Court. Thus subsequent cases in which provisions in statutes were invalidated emanated from the Constitutional Court. For instance, in the case of Friday Jumbe & Humphrey Mvula v. Attorney General49 the court invalidated Section 25B (3) of the Corrupt Practices Act (CPA) on the ground that it violated the right to be presumed innocent and to remain silent as enshrined in Section 42 (2)(f)(iii) of the Constitution. The Constitutional Court by a majority decision determined that the provision could not be saved by Sections 42 (2) and (3) of the Constitution, which allowed for constitutional limitations to the rights enshrined in the same Constitution. Section 25B (3) of the CPA created a reverse onus burden of proof for a person accused of corruption. The decision of the Constitutional Court was a majority decision of 2-1.
4.5 Judicial Activism in the Saulos Case
From a political as well as constitutional perspective, the most important case to date on the 1999 presidential poll is Gwanda Chakuamba and others v The Attorney General, the Malawi Electoral Commission and The United Democratic Front. The case concerned a purely legal or technical irregularity in the conduct of the poll. The plaintiffs, three of the presidential candidates in the poll, complained that the commission unlawfully determined the winner of the poll under section 96(5) of the PPEA instead of section 80(2) of the constitution. Section 80 (2), it should be recalled, states that the president “shall be elected by a majority of the electorate through direct, universal and equal suffrage”. Section 96(5) states that “in any election the candidate who was obtained a majority of voters at the poll shall be declared by the commission to have been
49 Constitutional Cases No. 1 and 2 of 2005 (unreported). 41
Student no: 005-178 duly elected”. The petitioners referred to section 202 of the constitution as authority for the suggestion that 96(5) was appropriate only for the 1994 presidential poll.
The petitioners contended that in terms of section 80(2) a candidate must secure voted in order to be duly and lawfully pronounced as elected. The commission had pronounced as winner a candidate who had secured only a majority of the votes cast in the poll.
Mtambo J. in the High court first considered whether section 80(2) and section 96(5) purposely created different mechanisms for determining presidential election results. He concluded that there was in fact no different in meaning or mechanisms between section 80(2) and section 96(5). The word ‘majority’ in section 80(2) carried its ordinary dictionary meaning of the greater number or part of something. The word ‘electorate’ meant persons registered as voters in an election considered as a group. The words the word ‘through direct, universal and equal suffrage’, according to the court, indicated that the “electors” must actually have voted. The word “suffrage, qualified by the words ‘direct, universal and equal’ meant the right to vote in political elections. A vote would only count only if it had been exercised in an election. The president was therefore to be elected by the greater number of votes cast in the poll. There was no irregularity in the manner in which President Muluzi had been declared winner of the 1999 poll.
The court professedly came to this conclusion by applying the first rule of statutory interpretation, the court attempted to harmonize sections 80(2) and 96(5). Similarly, the Supreme Court upheld and agreed that section 80(2) of the constitution and section 96(5) of the Presidential and Parliamentary Election Act (PPEA) provides for a first past the post system.
As discussed in chapter two, the common law system is generally obedient to principle of precedent, especially by one made by the Supreme Court. However, the court in the Saulos case moved away from the precedent which had been set by the Supreme Court in the Chakuamba case regarding the interpretation on section 80(2) of the constitution on majority attained during a presidential election. This clearly portrays, that the court practiced Judicial Activism when it determined that the majority be attained by a candidate to the office of the President is a minimum of fifty percent (50%) plus one total valid votes cast during presidential election and parliament must within 21 days from the date make appropriate provisions as on such, overturning the previous first to post system interpreted by the Supreme Court.
42
Student no: 005-178
Though there is no agreed definition of what constitutes ‘result-oriented judging’ it could loosely be described as the actions of judges who do whatever is necessary to rule as they personally prefer in a manner that departs from some baseline of correctness, with consideration of public opinion, mostly the cry of the people. Thus, in my ideology the judicial activism by court in the Saulos case was a means of result oriented judging, considering that the mass of Malawians chanted for a majority of fifty plus one electorate to declare president. Subsequently, the court chose to neglect its common law principle of precedent so as to fulfil its paramount duty of constitutionalism, as the constitution represents the people and the judiciary enforces the constitution for the people.
The nature of the definition of result oriented judging however, introduces significant subjectivity. That is to say, it is very difficult to establish a non-controversial benchmark for correctness. In addition, it is equally difficult to distinguish between inadvertent errors in legal analysis and a deliberate departure from the correct legal position in order to arrive at a desired result on the part of judges.
Furthermore, the decisions also show inconsistencies, contradictions and/or possible injustice of JA similar to those highlighted in chapter 2 of this thesis. For instance, even though the court ignored vertical precedent, to change the meaning of majority towards presidential election, they did so by mostly invoking what they considered the plain meaning of the terms used in the constitution and the intention of the drafters of the Constitution (originalism). In addition, the court noted that in the Chakuamba case the then Supreme Court was openly concerned with the absurdities the petitioner contentions might lead to. Further, the political divide in the country was such that it would have been very difficult, certainly for any of the candidates in 1999, to obtain support from the 50 per cent plus one of all registered voters.
We may also consider that JA in this case may be justified by the principle of separation of powers. The separation of powers doctrine gives the judiciary a constitutional role equal in importance to the legislature and the executive, ensconced within a Lockean constitution of checks and balances. Just like the legislature and executive, the judiciary exercises its power in trust on behalf of the people who have consensually delegated that power to it. Even if judges are not electorally accountable, the judiciary’s trust carries a special, indirect representational mandate to hold impartially both the legislature and the executive to their prescribed powers and
43
Student no: 005-178 to the rule of law giving it an intermediary role between the people and the other two branches. Thus the court was justified in ordering the legislature to amend all laws pertaining to Majority of electorate and the legislature must of such abide to the order.
44
Student no: 005-178
Chapter 5
Recommendations and conclusions
5.1 Introduction
Scholars of the doctrine of independence of the judiciary submit that it is not only one of the basic values which lie at the core foundation of the administration of justice, but also very useful in creating an efficient and reliable judiciary. The independence of the judiciary is also an important element of fair trial and not as an end to itself, but as a means to achieving ends. If judges are independent, they are essentially protected from undue influences from all possible agents in society that could undermine their impartiality. Consequently, judges are more likely to uphold the rule of law, preserve the separation of powers, promote the due process of law and provide fair adjudication especially in presidential election petitions.
While the desire to have an independent judiciary is fairly critical in many democratic societies, there is the idea of Judicial Activism that has to be taken into account which works hand to hand with an independent judiciary. As the statement goes “justice must not only be done but must also be seen to be done” the judges themselves may take an active role by considering all and any available factors, so as to deliver a decision that satisfies their people.
5.2 Conclusion
First and foremost, the paper above answers the question of the law that governs majority in a presidential election in Malawi. We shall begin with the constitution based constitutional supremacy, as of that section 80 (2) provides for majority it states ‘The President shall be elected by a majority of the electorate through direct, universal and equal suffrage.’ However, the constitutional provision is too vague and broad as it does not precisely provide for a simple majority or votes 50 percent plus one in presidential election. Thus the Presidential and Parliamentary Election Act (PPEA) supplements on the constitution under section under section 96(5) of the PPEA, gives an exact definition of the term majority by stating that the candidate
45
Student no: 005-178 who has obtained a majority of votes at the poll shall be declared to have been duly elected, this provision gives simple majority towards presidential election.
Further we may also consider the question of majority in presidential election as defined in the Chakuamba case of 1999. The case was a landmark case with regard to majority in elections in Malawi. The Supreme Court provided for the interpretation of section 80(2) as the matter was of great constitutional importance because the interpretation would determine the correct procedure that must be followed in future presidential elections. The Supreme Court interpreted section 80(2) in support of the first past the post system provided by the PPEA. The court noted that in the Chakuamba case the then Supreme Court was openly concerned with the absurdities the petitioner contentions might lead to. Further, the political divide in the country was such that it would have been very difficult, certainly for any of the candidates in 1999, to obtain support from the 50 per cent plus one of all registered voters.
As discussed above we have noted that the Chakuamba case determined that the correct procedure to be followed in determining majority in presidential election is to follow the one of a simple majority or the first to past the post as I commonly known. Common law is associated and established from the theory of precedents, the Saulos case however departed from this general principle of following precedent with regards to the re-interpretation of section 80 (2) of the Constitution.
Examining the question on the effectiveness of the judiciary, in the re-interpretation of section 80(2) contrary to the Chakuamba case. We may note that this decision may be against the principle of separation of powers as noted there are well developed legislation such as the Presidential and Parliamentary Election Act which as referred by the Chakuamba case defined the procedure on majority attained in presidential election.
Further, the decision may be described as a means of constitutionalism. As provided in Chapter 2 Within the concept of constitutionalism is the idea of limited, open, transparent and accountable government which must truly represent the will of the people and not simply smoke-screen the will of the people. The judiciary, re-interpreting the constitution has practiced constitutionalism as it has furthered the will of the people, unlike in 1999 during the Chakuamba case, the people of Malawi currently wish for majority to be defined as 50 percent plus one in presidential elections.
46
Student no: 005-178
5.3 Findings
First and foremost, the question to ask is whether Judicial Activism can be said to have been successful. The parameters for determining success have not been spelt out in this thesis as that was beyond the scope of this study. It may serve the interests of some to glorify the impact of Saulos Chilima and Lazarus Chakwera v Electoral Commission and AP Mutharika; Ex Parte: Malawi Congress Party and Another when discussing the advancement of in the meaning of majority with regards to presidential elections in Malawi and completely ignore the ignominy of Chakuamba v Attorney General or exalt the introduction of public interest litigation through JA in Malawi.
Judges together with other judicial officers have all sworn a solemn oath to diligently serve the people, impartially and in accordance with the Constitution, the law and the customs of the Republic of Malawi without fear, favor, bias, affection, prejudice or any political or religious influence. The respect of the rule of law, not only applies to the three arms of government, but also calls upon each and every person in the citizenry, indiscriminately, to respect the institution that interprets the law.
There will arise many instances where the courts will make decisions that certain sections of the population do not agree with, but the rule of law means that we cannot choose which court orders to obey and which not to obey as doing so will be an abdication of duty to respect and uphold the law.
Among judges, the interpretation of the law may differ and sometimes errors in judgement may arise. It is on this premise that the Constitution sets out an appellate process in court system. The legal system has an inbuilt review and evaluation mechanism that exists solely for the purpose of appeals and other jurisdictional matters which should be explored in full if a court order is unfavorable in preference to disobedience and disregard of such orders. What is more, in an attempt to assert its independence, the judiciary will always look mischievous in the eyes of those who control the state, especially in cases such as presidential election petitions.
This situation is worse in states such as Malawi that are still fragile and unstable compared to other much developed democracies in the developed world and is thus easily irritated by any seemingly divergence from the expected behavior by any of its organs. Therefore, a progressive
47
Student no: 005-178 and popular judiciary, manned by principled and honest men will always be operating in a very delicate balance.
In ensuring its independence, the judiciary must also function with prudence and respect the political boundaries so as to maintain public trust. The Supreme Court’s decision to nullify the 2019 presidential election through a presidential petition displayed public trust in the judiciary to accept the court’s determination of an issue of such magnitude amidst a backdrop of political intolerance. To raise and sustain this record, the courts must now seek to refrain from engaging in a political tussle and be pragmatic and vigilant of politicians who may taint the hard-earned image of a credible judiciary. In conclusion, the three arms of government, especially the notorious executive and legislature, must lead by example by showing dignity and respect for the rule of law. This includes institutional conduct with integrity and transparency aimed at protecting and upholding the Constitution at all times pursuant to the oath of office. Only then, will other institutions follow suit to defend the rule of law in a manner that promotes the aspirations of a democratic republic.
Ultimately, if there is any concept of modern governance that enjoys more widespread admiration even than democracy, it is that of the independence of the judiciary. Judiciaries are viewed with as much optimism by investors desiring to secure economic rights as by the downtrodden who seek basic constitutional protections and for societies to enjoy a wide range of political, legal, and economic rights, either such rights must be self-enforcing, or the institutions that protect those rights, in this case an independent judiciary, must be self-enforcing.
5.4 Recommendations
5.2.1 Gaps in the Constitutional safeguards for the Independence of the Judiciary
Striking under the guarantees protecting abolition of office, remuneration and benefits, before or after retirement is that there are only availed to the judges of superior courts. Meaning, that the executive or legislature has power to reduce salaries, benefits, pensions to the disadvantage of court practitioners at any time, exposing them to the threat of arbitrary action by other arms of government should their decisions not sit well with these other arms. In respect to that, the personal independence of court justices which requires that they be insulated from executive
48
Student no: 005-178 control which could be exercised through removal suspension, transfer, salary cuts administrative retirements is not constitutionally protected.
The court justices play a crucial role in the judicial system given that they hear the vast majority of both civil and criminal cases, again it is in these courts where the impoverished, powerless and defenceless seek justice and redress. Once they have no confidence in the courts and justices alike, of whom are then perceived them as dispersing a lower form of justice, a risk arises of persons resorting to self-help and informal ways of justice, posing a significant detrimental effect on society and the development of the rule of law.
To this extent, the Constitution has failed to go far enough in regard to the protection of judicial independence with such exclusions being technicalities that can be easily exploited by a miscreant parliament and executive. Moreover, constitutional reforms alone cannot solve the problem of the independence of the judiciary. It has been correctly observed that an important element of the independence of the judiciary is its popular acceptance based upon the support of public opinion, without which, is in grave danger.
5.2.2 The Judiciary and the Judicialization of Politics
Over the last few decades, it is no doubt that the world has witnessed a profound transfer of power from representative institutions to judiciaries. In that event, has been the transformation of courts and tribunals worldwide into major political decision-making arenas. Today, the judicialization of politics has extended well beyond the judicialization of policy-making, to encompass questions of pure politics. These are electoral processes and outcomes, restorative justice, regime legitimacy, executive prerogatives, collective identity and nation-building. And just like to any other transformation of such magnitude and scope, the judicialization of politics is not derivative of a single cause but rather an assemblage of institutional, societal and political factors convivial to the judicialization. All this, a result of three salient factors as seen in the research; the existence of aconstitutional framework that promotes the judicialization of politics, a relatively autonomous judiciary that is easily enticed to dive into deep political waters and a political landscape conducive to the judicialization of politics.
The benefits of the judicialization of politics arise from deducing the arguments in favor of an independent judiciary. Essentially, as done in the Saulos case, if a judiciary plays a positive role,
49
Student no: 005-178 a stronger and more active judiciary can only be better in preventing abuse of power by the government and to a lesser extent, by the majority against the minorities. This argument is an inference of the argument that a judiciary acts as a check on the exercise of power by the executive and the legislature. An empowered judiciary that has jurisdiction to examine and adjudicate policy and political disputes has a better chance of ensuring that power is exercised as precisely provided for in the law.
This acts not only as a tool to prevent abuse but also as a means of increasing transparency and accountability in the government, in turn boosting democratic governance. The dangers of the judicialization of politics however, seem to supplant the benefits.
The judicialization of politics creates a judicial autocracy or a rule of an unrepresentative minority elite thus threatening democracy. Again, as noticed through judicial activism a judiciary that is too strong dominates governmental processes and as a consequently mocks the concept of separation of powers. It is also reasoned that the judicialization of politics encourages the concentration of power in a privileged minority, further robing the public of their faith in democratic processes and ultimately posing a threat to judicial legitimacy.
The Constitution does not expressly define justiciability. Section 103 of the Constitution merely provides that the courts have jurisdiction to determine matters to which the law is applicable. This may be interpreted to mean that the courts may determine what is justiciable and what is not.
This thesis recommends that the judiciary should use the lack of a constitutional definition of judicial activism to develop guiding principles of justiciability that safeguard the institutional integrity of the judiciary. The judiciary can develop principles of justiciability in a number of ways;
In as far as is practically possible, the judiciary should endeavour to take a standard approach when defining judicial activism. Such a stand should be guided by an insightful interpretation of the Constitution tempered with an appreciation of the worldwide shift towards the judicialization of politics and the dangers attendant to such a shift. Such uniformity once established would become a standard by which the courts would abide and the Supreme Court should pay special attention to the nature of their decisions in judicialized disputes. This is because their decisions
50
Student no: 005-178 bind lower courts by the doctrine of stare decisis. When precedents are set that clearly define justiciability, then it is likely that a clear delimitation of the scope of justiciability within the framework of the Constitution will emerge.
5.2.3 There is need to prioritise tailor-made judicial training to prevent judges from fumbling along
The finding that incoherence, inconsistency and unprincipled judicial-decision-making on matters impacting on policy and/or development of law proceeds from an insufficient conception of the judicial role, is not peculiar to this thesis. Similar findings have been made in other jurisdictions. The unique contribution of this thesis therefore is to the extent that it brings to light a similar problem in Malawi. This study would therefore like to borrow from the wisdom of the study by Thomas which pointed to the need to ground judges in legal theory if they are to acquire a comprehensive conception of the judicial role.
The grounding would not be uncritical acceptance by judges of all theories advanced, rather a process of mutual influence where the judges benefit from the theoretical concepts advanced by legal theorists, and the legal theorists would benefit from the practical experience judges would bring. The legal theory referred to in Thomas study, includes the work of western legal theorists such s Hart, Kelsen, Dworkin whose work has contributed much to the understanding of the nature of law and/or the judicial process.
It is with the aim of applying those useful insights that this thesis recommends the urgent establishment of a judicial institute in Malawi linked to a university. The judicial institute would be instrumental in identifying the training needs of judicial officers as well as appropriate resource persons to deliver the trainings, among other things. As regards legal theory however, Malawi is in a different position from western nations such as the USA, Australia, and UK in that whereas Anglo-American jurisprudence (as developed by legal philosophers) is well- developed Malawi centric jurisprudence is in its embryonic stages. The embryonic stage of Malawi centric legal philosophy should however, be taken as an advantage in that if the judicial institute were to be established with urgency, the interaction of judges and other disciplines under its auspices could result in an enriched and well-grounded constitutional jurisprudence. That is, the Malawian judges could benefit from the theoretical contributions of the Malawian
51
Student no: 005-178 legal philosophers, whilst the philosophers themselves could benefit from the judge’s practical insight.
52
Student no: 005-178
Bibliography
Books Bradley, A, & Ewing, K. (1997). Constitutional and Administrative Law. London: Longman.
Beetham, D. (1992) (pg.40). Political Studies, ‘Liberal Democracy and the Limits of Democratisation’.
Burbank, S. B., & Friedman, B. (2002). Judicial Independence at the Crossroads: An Interdisciplinary Approach. Thousand Oaks: SAGE publications.
Gathii, J. T. (2016). The Kenyan judiciary’s accountability to parliament and to independent commissions: In Judicial Accountability in the New Constitutional Order. 12th edn. Nairobi: ICJ Kenya.
Oloka-Onyonga and K, Nansozi. (2007). Africa’s New Governance Models, Debating Form and Substance. Fountain Publishers,
U Baxi. (2003). ‘Preface’ in SP Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits. 2nd edn. OUP India,.
Walzer M. (1984). Spheres of Justice: A Defence of Pluralism and Equality. Basic Books.
Woolf, H. (2004). The Rule of Law and a Change in Constitution. Cambridge.
Articles and Journals Barber, N. W. (2001). Prelude to the Separation of Powers. Cambridge Law Journal.
Baum, L. (2003). Judicial Elections and Judicial Independence: The Voter’s Perspective. Ohio: State Law Journal.
Burbank, S. B. (2003). What Do We Mean by “Judicial Independence”? Ohio: State Law Journal. Maxwell,
Diescho, J. B. (n.d.). The paradigm of an independent judiciary: Its history, implications and limitations in Africa. http://www.kas.de/upload/auslandshomepages/namibia/Independence_Judiciary/diescho.pdf
53
Student no: 005-178
Ellet, P VonDoepp. (2005). ‘The Problem of Judicial Control in Africa’s Neopatrimonial Democracies: Malawi and Zambia. (pg. 120). Political Science Quarterly.
Garton Kamchedzera. (1996), Access to Property, the Social Trust, and the Rights of the Child’, PhD Dissertation. Cambridge; University of Cambridge.
Geyh, C. G. (2006). Rescuing Judicial Accountability from the Realm of Political Rhetoric. Case Western Reserve Law Review.
Honourable Justice Chipeta. (2005). “Judicial Independence vis-à-vis the Executive and the Legislature”. Malawi Law Society.
Jane Ansah. (2002). “The Right to Development and the Malawian Law”, PhD Thesis, Nottingham; University of Nottingham,
Nkhata, Mwiza Jo. (2010). “Rethinking Governance and Constitutionalism in Africa: The Relevance and Viability of Social Trust-based Governance and Constitutionalism in Malawi” LLD Thesis
Nyondo, JM. (2010), Constitutionalism in Malawi 1994-2010: A Critique on Theory and Practice, LLM dissertation. http://upetd.up.ca.za/thesis/available/etd-05272011- 132657/.../dissertation.pdf accessed 24th June 2011. (Published 27th May 2011)
Raz, J. (1979). The Rule of Law and its Virtue. In The Authority of Law: Essays on Law and Morality.
RL Ellet. 2008. ‘Emerging Judicial Power in Transitional Democracies: Malawi, Tanzania and Uganda’. Public and International Affairs Dissertations, paper 3, p.26. http://hdl.handle.net/2047/d10016120. Oxford Scholarship Online.
Cases Saulos Chilima and Lazarus Chakwera v Electoral Commission and AP Mutharika; Ex Parte: Malawi Congress Party and Another, Constitutional Reference No. 1 of 2019.
Amon Zgambo v. The Republic MSCA Crim. App. No. 27 of 2005 (unreported).
Chakuamba and others v Attorney General and others. MSCA Civil Appeal No. 20 of 2000.
54
Student no: 005-178
Chakufwa Chihana v The Republic, Criminal Appeal No.9 of 1992.
Fadweck Mvahe and others v. The Republic MSCA Criminal Appeal No. 25 of 2005.
Fred Nseula v. Attorney-General and Malawi Congress Party MSCA Civil Appeal No. 32 of 1997.
Friday Jumbe & Humphrey Mvula v. Attorney General Constitutional Cases No. 1 and 2 of 2005 (unreported).
Kafantayeni v attorney General 1 Constitutional Case No. 12 of 2005.
Kachere and others v. President of Malawi and another Civil Cause No. 20 of 1995.
Kafumba v Electoral Commission Civil Cause No. 30 of 1999.
Kafumba v Electoral Commission and Malawi Broadcasting Corporation.
MacWilliam Lunguzi v. The Republic (1991) 1 MLR 632.
Muluzi and Thomson v Attorney General, Civil Cause No.66 of 1993.
Nana Addo Dankwa-Addo and others vs. John Dramani Mahama and others No. J2/6/2013 Judgement of 29 August 2013.
Raila Amolo Odinga and Another v Independent Electoral and Boundaries Commission and Others 1 Presidential Petition No. 1 of 2017.
Sidik Aboobaker v. Attorney General Civil Cause No. 964 of 1994 (unreported).
The State v the Electoral Commission, ex. p. Chakuamba 1 Miscellaneous Civil Cause No. 68 of 2000.
55