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What’s all this fuss about Judicial Review?

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In the matter of The State v Chaponda and others Ex Parte Kajoloweka and others

In this matter which has been the subject of many a debate, Charles Kajoloweka and others have applied for Judicial Review in a matter which is between the State and the Minister of Agriculture George Chaponda, the Attorney General and the President. These are the parties to the matter.

Of course, in the practical sense, the case will be argued between the applicants and the respondents since the State is the legal fiction under which Judicial Review proceedings are brought. I use the term legal fiction deliberately. It does not mean it is a fiction, not at all. The State does exist in fact. But in Judicial Review, the State is not really present except as the invisible summoning party. Proceedings merely ensue (are started) in its name.

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To cut a long story short, an application for Judicial Review was made by the applicants. It was as would be expected, an ex parte application. Furthermore, the applicants filed a Certificate that the Matter was Urgent. This is done to abridge (reduce) time where the application is made short of the prescribed (normally set or specified) time. This is the procedure for abridging time. Leave was granted and an interlocutory injunction was also granted by the Court.

An interlocutory injunction is distinguished from a permanent injunction. It is one granted to the applicant in which the Court orders that the respondent is compelled or prevented from doing certain acts until the matter is finally determined or until the Court makes another order to the contrary. Its purpose is to maintain the status quo and preserve the applicant’s rights before the case is heard and a judgement made. So what did the Order say in relation to Chaponda? It restrained him from discharging his duties as a cabinet minister until the finalisation of the investigations by a Commission of Inquiry set by the President.

It further warned that any person who disobeyed the Order risks being guilty of Contempt of Court. It also gave the respondents the right to vacate or vary the order provided they gave the applicants 48 hours’ notice.

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Now before we go into the substantive elements of the Order, I should say that the wording of the order is normal in interlocutory injunctions. There is nothing amiss there. In exercising their legal rights, the respondents, through the Attorney General did file an application to vacate the leave granted for Judicial Review.

The respondents argued that: The Court does not have jurisdiction to conduct Judicial Review in this matter; and that the application by the applicants does not disclose an arguable case or serious questions fit for further inquiry at Judiciary Review hearing.

Now it must be noted that the argument of the respondents was not that the injunction should be lifted per se but rather that leave for Judicial Review should not have been granted altogether or having been so erroneously granted, it should be vacated. If this argument were to be successful, it would mean the Court would throw out the application for Judicial Review wholesale and with that would follow the automatic vacation of the injunction against Chaponda.

It has since transpired that the Court has sustained the grant of leave for Judicial Review as well as the interlocutory injunction. So what does this mean? It means the injunction still subsists (exists) and that Chaponda is restrained from discharging his duties as a cabinet minister until the finalisation of the investigations by a Commission of Inquiry set by the President.

Now let us look at why we have these three respondents. It is common knowledge that Chaponda is the Minister of Agriculture, under whose jurisdiction the food utility Agricultural Development and Marketing Corporation (Admarc) Limited falls. All civil suits (claims) against the government are through the Attorney General. Although a Judicial Review application is not a civil suit, the Attorney General is still the person who must usually respond for the various public bodies that get called to answer as respondents in Judicial Review proceedings. The President is the person who appointed Chaponda as minister and who also appointed the Commission of Inquiry.

The issue of the Restraining Order has attracted a lot of debate, some of it furious and even acrimonious. The first issue has been whether or not the Court has the jurisdiction (or power) to restrain a cabinet minister. Several provisions have been quoted in our Constitution in support of either side of the argument. I for one at this time wish to make no comment in support of either side. The reason is simple. As a teacher of law, and a legal practitioner, I refrain from commenting on legal issues that are still within Court until a determination has been made. It does not mean I cannot comment but rather that I cannot delve into the merits of the case. The legal term used is sub judice which means if a matter is under judicial consideration, it must not be publicly discussed elsewhere.

Secondly, I do not possess the requisite expertise in this area of law to give a competent opinion and analysis on the constitutionality of the Court’s action. I have made this known before and it has been construed as a gag against commenting on the case. In fact, it is not. However, I would still insist that analysis of constitutional provisions in such complex matters does require a certain level of expertise. It needs the expertise of someone who has spent a considerable amount of time researching on and around the Constitution. I have not. I can comment on the injunction now because the question of injunction has been determined for now.

Secondly, it is a matter of procedure which as a practising lawyer I can competently comment on. Now it must be borne in mind that the Attorney General did raise the issue of jurisdiction as a preliminary issue. Does the fact that the Court has sustained the grant of leave and the injunction mean that the Court has made a determination on this? I would it has not. In fact, it may well end up that the Court decides after hearing the parties at the full hearing that it does not have jurisdiction after all. It may on the other hand hold that it does. What I am saying is that we must be cautious not to over-interpret the decision of the Court at this preliminary stage. The matter is yet to be heard and decided. It is only after the full hearing and a judgement of the Court that we can have a full picture of what this matter means. Then we may delve in with our comments on the substantive questions of law.

Now the second issue, also related to the first is that what the Court has done is to suspend the minister, something it does not have jurisdiction to do. Once again, I will try to tackle the first part about suspension but will not comment on the question of jurisdiction. For a start, a restraint and suspension are not technically the same thing. A restraint order is a preventative order. It stops the person to whom it is targeted from doing certain things. In this case, it is preventing Chaponda from discharging his duties as a cabinet minister until the finalisation of the investigations by a Commission of Inquiry set by the President. So it is time-bound as the order will fall away automatically after the finalisation of the Commission of Inquiry (which is unless it changes 31st January 2017).

It does not dismiss Chaponda nor suspend him as a cabinet minister. He remains a cabinet minister but is prevented from discharging his duties during that time. Now, what is a suspension? In relation to this particular matter, it is an act of temporality removing a person from office or privileges. So there is a difference between restraining and suspending but is there a substantial difference? In other ways, when it is all done and dusted, can we separate the two? I would argue that in practical terms the effect is the same. When a Court issues a restraining order, it is in fact also serves as a suspension order. Therefore, for the avoidance of doubt, my own understanding of this would be that Chaponda has been suspended. Should he have been suspended? Ought he to have been suspended? Does the Court have the power to suspend him? That are matters which the Court will have to adjudicate on and we can only await the judgement after a full hearing. For now, Chaponda is suspended. That is the law.

Does it mean that Chaponda should then stop using his ministerial car and stop enjoying his other privileges? I do not think that the Order says that. The order merely restrains him from discharging the duties of cabinet minister until 31st January 2017. It does not stop him from being a cabinet minister. It merely withdrawals his ministerial powers, so to speak. So can Chaponda use his vehicle etc?

Well we are in new territory here. It is a rather grey area. I do not think a situation like this was ever envisaged. I do not think the presidency at any moment in time commissioned the drafting of a clause in the ministerial conditions of what happens when a minister is suspended or restrained. For the President, it is simple; he has the prerogative to fire without even giving the reason for dismissing a cabinet minister. So what next? The respondents cannot appeal the decision of the Court to refuse to vacate the leave granted and its attendant injunction. This is because according to our civil procedure, you only appeal a decision made on the substantive matter. In this case, the substantive matter is yet to be heard, let alone decided upon. Like I said, had the Attorney General succeeded in vacating the leave for Judicial Review, the matter would have been closed and Chaponda would have resumed his duties as cabinet minister without hindrance. Right now, he is under a legal hindrance.

Conclusion

In summary, “Judicial Review is concerned with reviewing, not the merits of the decision in respect of which the application for judicial review is made but the decision-making process itself”. Unless manifestly absurd, illegal or wrongful, it is not the decision itself that is questioned but the process. So it arises in relation to the lawfulness of a decision or action or inaction. Now in the matter of the State v Chaponda and others Ex Parte Kajoloweka and others, at this point, we cannot say whether the decision, action or inaction of the respondents is unlawful. This is for the Court to eventually decide. We cannot also say whether or not the Court has jurisdiction over this matter. That also is for the Court to decide. If the Court decides that it does not have jurisdiction, clearly the issue of whether there was a ‘decision, action, or inaction’ will be of no consequence. On the other hand, if the Court decides it has, then the Court will have to adjudicate who, between applicants and the respondents have presented a convincing case. That is the beauty of the Adversarial System. So for the rest of us, all we can do is wait. What happens to Chaponda in the meantime? Well unless the order is varied, he remains restrained or rather suspended. This is an avenue that no one in Malaŵi has travelled before. We are all learning from the experience and look forward to the precedent that the Court will set out in the end. For now, at least this can be said, the term no-one is above the law is starting to have some meaning.

Final words

Some have argued that the issue before the Court is not justiciable. To be justiciable simply means to be subject to trial in a court of law. In other words, it defines the limits under which the court may exercise its jurisdiction over some legal issues. I make no comment on the justiciability of this particular matter except to point out that readers may wish to read the decision in The State v The Registrar General Ex-Parte Msenga Mulungu and others.

I have read comments to the effect that what the Court in Mzuzu has done is to infringe upon the sacred doctrine of separation of powers. This is a doctrine that originated in England which essentially says there must be a separation and independence in the functioning and powers of the three arms of government. These are the Executive, Legislature and Judiciary. But no one has ever said this separation must be absolute. In fact, in England where the doctrine originates from, the Executive is subsumed into the Legislature. This is because all cabinet ministers and the prime ministers are in fact also Members of Parliament. So while the doctrine does provide for distinct arms of government to be allowed to function on their own, the doctrine was never about drawing boundaries in concrete. In fact, this doctrine only makes sense when paired with the twin doctrines of checks and balances and transparency and accountability.

It is for this reason that the following happens in Malaŵi: The President is sworn-in by the Chief Justice (a judge); Members of Parliament are sworn in by the Chief Justice; The Chief Justice is nominated by the President but confirmed by Parliament; The President appoints Judges on recommendation of the Judicial Service Commission; Parliament can impeach both the President and his Vice as well as Judges; The Inspector General of Police is nominated by the President but confirmed by Parliament; The President appoints the Clerk of Parliament on recommendation of the Parliamentary Service Commission; The Executive formulates the budget but Parliament must approve it; The President has to present his State of the Nation Address in Parliament; and Apart from opening a session of Parliament, the President can prorogue Parliament.

What this means is that the doctrine of separation of powers is not cast in stone. Rather it is etched on sand. Its boundaries are constantly changing. What it does is to prevent interference of one arm against another. But what it does not is to allow one arm to do whatever it would want. Under the doctrines of checks and balances and transparency and accountability, each of the arms must be on guard ensuring that the other arms are all operating according to constitutional tenets (principles). The reason for this is because, under the Constitution, all arms of government are bound by and subservient to the Constitution. The Constitution is supreme and only the Judiciary has been given the power to interpret it. So let us respect what the Constitution has decreed. Democratic anarchy? I would think not. Not yet, anyway.

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