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IN THE SUPREME COURT OF APPEAL

MSCA CIVIL APPEAL NUMBER 05 OF 2017

(Being High Court of Malawi Mzuzu District Regis t ry , Misc Civil Cause No. 01 of 2017)

BETWEEN:

st
HONOURABLE DR. GEORGE CHAPONDA ................. .. ....... ........ 1 APPELLANT

nd
THE STATE PRESIDENT OF MALAWl. ......... .............. .. ....... ......... 2 APPELLANT

EX PARTE:
st
MR CHARLES KAJOLOWEKA ............................................... 1 RESPONDENT

nd
THE REG ISTERED TRUSTEES OFYOUTH AND SOCIETY ......... 2 RESPONDENT

- ) THE REGISTERED TRUSTEES OF CCAP SYNOD OF LIVINGSTONIA

rd
(CHURCHANDSOCIETYPROGRAMME) ..................... .................. 3 RESPONDENT

· 1 :~L(:iiS I l::ki::.LJ fRUSTEES OF CENT REFOR

THE DEVELOPMENT OF PEOPLE ......................... ....... ......... .4th RESPONDENT

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CORAM: BEFORE HON. CHIEF JUSTICE NYIRENDA SC, JA,

HON. JUSTICE TWEA SC, JA,

HON. JUSTICE KAPANDA SC, JA,

Apoche ltimu ; of Counsel for the Appe llant/State

Victor Gondwe; of Counsel for the Respondents

Minikwa ; Court Clerk

Judgments: Kapanda SC , JA (unanimous)

Date of Hearing of Appeal: 28 June 2017

Date of Judgment: 13 February 2019

Summary :For the reasons and on the grounds advanced in this judgment , we find and
conclude that the grant of leave to move for judicial review be vacated . This Court also
makes an order for costs here and in the court below against the Mr. Charles
Kajoloweka personally .

Further, as for the 1st respondent ,Mr. Charles Kajoloweka we observe that he put in an
affidavit where in one breath he puts it as 'I' and then later he is talking of himself as
'we' as if he depones to facts on behalf of all respondents . Evidently the affidavit lacks
connectivity between him and the other bodies (i.e.2nd , 3rd and 4th respondents)in this
matter . It is our view that Mr. Charles Kajoloweka personally took the judicial review
proceedings although he wants to put himself as a trustee . This Court questions the
basis for his mandate as there is no general or special resolution of the Board of
Trustees to take out the proceedings . We further observe that the Constitution of the
organization is not available for us to confirm the basis upon which he proclaimed

2
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himself as having the authority and mandate to take out the judicial review , the subject
matter of this appeal.

It is this Court 's view that the mandate of Mr. Charles Kajolowekais found lacking and
worrying . Amongst other things , Counsel for Mr. Charles Kajoloweka put it as follows on
being asked about the mandate of the said Mr. Charles Kajoloweka: "The first Applicant
(Mr. Charles Kajoloweka) is the Executive Director of the 2 nd applicant , Registered
th
Trustees of Youth and Society but I am not aware of his connection to the 3rd and 4
applicant" . We note nevertheless that in his founding affidavit he is speaking as if he is
a trusteP. and yet the case is in the name of Registered Trustees of The Registered
Trustees of Youth and Society ; The Registered Trustees of CCAP Synod of Livingstonia
(Church and Society Programme) and The Registered Trustees of Centre for the
Development of People . We should have expected the mandate of the various trusts to
bring up the matter . This should have come as a resolution of board or specific
mandate of the Trustees on this issue. We do not have anything of that nature . Our
concerns are raised further on reading the affidavit Mr. Charles Kajoloweka which is
more of "I". But , this Court does not know if the board trustees mandated him to raise
the concern of fellow trustees . As we understand it, it is necessary for an Applicant to
judicial review proceedings to demonstrate to the court that somehow his rights will be
affected. In this circumstance the second , second , third and fourth Respondents did not
even file an affidavit in the proceedings in the lower court . The second , th ird and fourth
Respondents did not file an affidavit in the lower court demonstrating or showing to the
court a quo that they had any interest in this case.Thus , we are confusedas to how Mr.
Charles Kajoloweka finds himself as representing the trustees of The Registered
Trustees of CCAP Synod of Livingstonia (Church and Society Programme) and The
l~eg1stered Trustees of Cent re fo r the Developmen t of People in this matter.

-- -- ---- - - - ---------- - --- - -- - ---

JUDGMENT

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4
 Judgmen t de livered by Hon. Chief Justi ce A. K.C. Nyire nda SC (concurring in the
judgment):

Having had the privileg e to read befo re now the judgment just read by my learned
brother Justice of Appeal F.E. Kapanda SC , I am in entire agreement with him that this
s appeal be and is hereby dismissed . It is dismissed with cost here and below payable by
Mr Charles Kajoloweka .

Judgment Delivered by Justice of Appeal E.B. Twea SC (concurring in the

judgment) :

I have had the opportunity to read in advance the judgment of my Lord Justice of
10 Appeal F.E. Kapanda SC to be delivered in this matter with which I agree . I respectfully
adopt all his reasoning as mine and I allow the appeal. I set aside the judgment of the
Court below. I abide by the order for costs contained in the aforesaid judgment.

1s Kapanda SC , JA: (with Ch ief Justice A.K.C Nyirenda SC and Justice of Appeal E.B
Twea SC concurring):

FOUNDATION

The genesis of this case was that in around 2016 there was said to be a genera l
scarcity of ma ize in the Agricultural Development and Market ing Corporat ion
20 (ADMARC) depots . It was alleged that the stockp ile of maize on the open market then
started to esca late further. For this reason , the Government, through the Ministry o&
Agricul ture and Food Security , in collaboration with ADMARC arranged to purchase
i 7 e f,or~ c- uppl1erin the Repub lic of Zamb ia. The arrangement for the procure ment of
• • c11zc: g<Jve11seto allegations of corru ption, against Honourable George Chapo nda
-~ thc:n cne Minister of Government responsible for the Ministry of Ag riculture and Food
Security offici als of ADMARC and other entities in the Republ ic of Zambia alleged y
on11ected to the supply and procurement of the maize .The allegations genera ted
e ate n 11t' pub, c domain and there were accusat ions and calls on the Presidency to

5
 dismiss the Minister of Agriculture and Food Security and the official of ADMARC
among other things , or that the Minister and the officials shou ld resign or vacate their
offices to enable investigat ions to be ca rried on without hindra nce .

The President and the Minister declined to dismiss or resign respectively . The
5 President however , issued a Commission of Inquiry, into the matter , under section 2(1)
of the Commission of Inquiry Act. Amongst the Commissioners appo inted was the
Solicitor General and Secretary for Justice , Dr. Janet Banda and Mr. Isaac Kayira , a
public accountant. This state of affa irs caused the respondents to bring these
proceedings .

10 The respondents brought these proceedings to move for Judicial Review against Hon .
George Chaponda , the Attorney General and the State President.

INTRODUCTION

ThePresident issued a statutory notice of appointment of a Commission of Inquiry into

15 all aspects of the procurement of maize by ADMARC from the Republic of
Zambia.Membership of the Commission included Dr. Janet L. Banda SC and Mr. Isaac
Kayira , who at the material time, were civil servants . The statutory notice of appointment
of a Commission of Inquiry was made on 1stJanuary 2017 .

On 11thJanuary 2017, the respondents lodged an ex parte application seeking leave to

20 commence judicial review and an interlocutory injunction.On 1ih January 2017 , the High
Court sitting at Mzuzu District granted leave to the respondents to move for judicial
review. The court a quo also granted an injunction restraining the Attorney General as
a party and the 1stAppellant (Honourable Dr. George Chaponda) from discharging his
duties as cabinet minister until the finalisation of the investigations by the Commission
25 of Inquiry or until a further order of the court below ..

On 10thFebruary 2017 ,Justice of Appeal Mwaungulu SC , sitting as a single judge,

vacated the order of interlocutory injunction through an application made by the

6
 Honourable the Attorn ey General. The detailed ruling should as well be on the Court
file .

In the court below , the appellants lodged an application to discharge leave and remove
the Attorney General as a party . On 31 January 2017, the High Court declined to
s disch arge leave but removed theAttorney General as a party. On the same day, on 31
January 2017 , the appellants lodged an appeal in this Court aga inst the decision of the
High Court . Leave to file the appeal was sought from and granted by Chirwa, J on the
same day, 31 January, 2017 , immediately follow ing which , on the same day all the
parties, through counsel, executed and had issued (by the Registrar) a Consent Order
10 settling the record of appeal.

This appeal is therefore against the decision to refuse to vacate the grant of leave to
nd rd
move for judicial review. It is also an appeal against the refusal to remove the 2 , 3
and 4th respondents as parties to the case for lacking locus standi .

15 THE FACTUAL BACKGRO UND

For a better understanding of the genesis of the matter before us, a brief background of
the contents of the proceedings in the High Court that precede this appeal will be
necessary. As we were able to gather from the record , the following were the salient
contents of the proceedings .

20 The respondents (Mr. Charles Kajoloweka being the primary mover of the judicial
review proceedings in particular) had sought for and had been granted leave to move
i r ~1 • re\. 1e w In Form 86A (the formal appl ication for leave to move for judicial
r, .1w1 w) the respon dents stated that the judgments , orders , decisions in respect of
which reliefs were being sought were:

rd
d The decision of the 3 respondent (The State President of Malawi) not to
1
.s;.,t 1 11 l •1 P 1 s respondent (Hon Dr George Chaponda) as a Minister of
Agr1-...ult u 1e pending the conclusion of investig ations of an alleged maize

7
 purchase corruption scandal involving Hon . Dr. George Chaponda and a
Zambian Company ;

(b) The decision of the State President to maintain Hon . Dr. George Chaponda as ri

line Minister when he allegedly was involved 1n a corrup t101' ,r.c3 · ',1 ·

5 being investigated by a Commission of Inquiry instituted by the 3'0 respondent

(c ) The decision of the 3rd Respondent (The State President of Malawi) to appoint
and constitute a Commission of Inquiry whose dome (sic) of its members namely,
Dr Janet Banda and Mr. Isaac Kayira , are civil servants , therefo re subordinate to
the Respondent including Hon . Dr. George Chaponda who has not been
10 suspended contrary to the safeguards of impartiality of commissioners of inquiry
as per section 7 of the Commissioners of Inquiry Act and clear principles of
justice and constitutionalism ;

(d) Hon . Dr. George Chaponda 's decision not to resign as a cabinet Minister pending
the conclusion of the investigation by a commission of inquiry;

15 The reliefs sought in the judicial review application were as follows :

(a) A declaration that the State President 's decision not to exercise his prerogative to
suspend or remove Hon Dr George Chaponda pending the finalization of
investigations by the Commission of Inquiry is contrary to the spirit of the
Commission of Inquiry Act , especially section 7 which clearly requires members
20 of a Commission of Inquiry to be impartial and that the said decision violates
principles of natural justice especially one that clearly states that there should not
be an appearance of bias by a decision maker and that it is also generally
against principles of constitutionalism and therefore not supported by law;

(b) Likewise, a declaration that the decision of Hon Dr. George Chaponda not to
25 resign to pave way for investigations into an alleged corruption scandal involving
the said Hon . Dr George Chaponda and Zambian company in the purchase of
maize (the investigations being carried out by the Commission of Inquiry some of
whose members are subordinate to Hon Dr George Chaponda) creates an

8
 appearance of bias and that it violates section 7 of the Commission of inquiry
Act ;

(c) A further declaration that Hon Dr. George Chaponda , being a line cabinet
minister under the ministry that is being directly investigated , may interfere with
5 the investigation;

(d) A like order to mandamus , compelling the State President to suspend Hon Dr .
George Chaponda pending finalisation of investigations by the already
constituted Commission of Inquiry ;

(e) Alternatively , a like order of mandamus , ·compelling Hon Dr George Chaponda to

10 resign pending the finalisation of the investigations by the Commission of Inquiry ;

(f) Any other remedies the court may grant in its discretion ;

(g) If leave to move for judicial review is granted , then the same should operate as
an interlocutory injunction restraining Hon Dr George Chaponda from discharging
his duties as a cabine t minister pending a further order of this court .

15 (h) An order for costs .

Basically , what was sought by the respondents to be reviewed in the judicial review
proceedings before the court a quo were :

(a) The decision by the Presiden t not to suspend the Hon . Dr. George Chaponda as
cabinet minister (and related to this , of the decision by Hon. Dr. George
20 Chaponda not to resign) pending the finalization of Presidential Commission of
Inquiry. The relief sought was a declaration that the failure to suspend Hon.Dr.
George Chaponda as a cabinet minister was contrary to the spirit of the
CL''l'n i -;s1on of Inqu iry Act, especially section 7 , and a violation of principles of
natura l Justice. We observe at the outset that no particular principle of natural
25 Justice was mentioned except that we guess it is something to do with bias as
alluded to above . Further , on constitutionalismno particular section of the
1 I
, aspect u ' ,~,Jnst1tutionalism was mentioned .

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 (b) ·The decis ion by the President to have Dr J,rnei f3,1•1dd , :h
Mr Kayira an auditor in government) the two being civil servants , as membe, s ot
the Commission of Inq uiry, contrary to safe guards of impartially under section 7
of the Commission of Inquiry Act.

5 (c) A declaration that Hon Dr. Georg e Chaponda may ·11:er', •. \ i._ I

investigations . We must say that no factual basis was given on why ,t was
thought thatHon Dr . George Chaponda might interfere with the investigations .

This Court notes that paragraph 1 and 3 of the grounds on which relief was sought ,
basically repeated the above information. In paragraph 4 of the grounds on which the
10 relief was sought , it was stated that the 1st respondent was finding it hard to purchase
maize at a local market due to scarcity of the commodity as well as the high prices
prevalent on the market which prices could be attributed to the alleged corruption
scandal. It was then stated in paragraph 5 of the grounds on which relief was sought
that the rest of respondents are NGO 's whose values , principles and mandate are to
15 safeguard democratic and transparent governance of the Republic of Malaw i and they
sought, through the judicial review , to enforce these principles . It was further alleged
that the acts of the appellants are unconstitut ional and illegal as they were made without
due regard to constitutional tenets as well as regard to the provision of the Commission
of Inquiry Act , particularly section 7 of the said Act. Finally , it was alleged that the
st rd
20 actions of the 1 and 3 appellants were Wednesbury unreasonable and the decision
was procedurally improper , illegal unreasonable and unconditional.

The Form 86A was supported by a Statement of facts and affidavit verifying facts. We
will comment on the affidavit later .

The appellants filed an application in the court below where it sought the following
25 reliefs:

(a) To vacate the grant of leave to move for judicial review on the ground that the
Court did not have the jurisdiction in a judicial review of administrative action and
also on the ground that the application did not disclose an arguable case or
serious question fit for further inquiry .

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{b) To remove the 2 nd , 3rd and 4 respondents as parties to the application as they all
did not have sufficient standing in the case ;

t ·s the High Court ruling on that applicat ion that is now under appea l. This Court
has noted that the High Court removed the Attorney General as a party to the
s proceedings , but refused to vacate the grant of leave for judicial review and also
th
refused to remove the 2 nd ,3rd , and4 respondents .

A SUMMARY OF THE CASE FOR WHICH LEAVE FOR JUDICIAL REVIEW WAS
SOUGHT AND GRANTED .

It is impo rtant that we now give a summary of the case for which leave for judicial
10 review was sought and granted . The Court accepts that this has already been captured
above . But we trust that it is necessary to repeat it here before we explore into the
gravamen of our find ings and conclusions on the appeal.

This is an Appeal by the Honourable the Attorney General on behalf of the Appe llants
against the decision of Justice J Chirwa dated the 31 January 2017 .Essentially , the
1s ruling dismissed the appellants' application to vacate leave for judicial review which
leave was initially granted by the lower court ex parte . It is this ruling of 31 January
2017 that is being appealed against by the Appellants.

THE APPEAL BEFORE THIS COURT (THE GROUNDS OF APPEAL)

Six groun ds of appeal have been filed by the appellants as follows :

~o 1. The Judge erred in failing to contextualize the proceedi ngs by (not) recognizing
(i) the non-binding nature of Commission of Inquiry findings on the President and

(ii) to also consider the powers ( e .g . to summon witnesses and compel

produc uon of documents) and duties ( e .g . of impartiality etc . ) of members of
':um111ss1ons of Inquiry vis a vis the allegation of potential inte rference in the
st
:.>s Comm issions work by the 1 appellant (Honourable Dr. George Chaponda) and ,
conse quent ly as there was no evidence on record of efforts to interfere with the
, .._c,n ~ work to hold that there was necessity for the President to ask the
, 1onuL.' 1. k· t)r George Chaponda) to resign from his office or for

11
 the 1st appellant (Honourable Dr. Geor ge Chaponda) to volunta rily resign from
his office pending the inquiry and that therefore , there was no triable issue fit for
a full judicial review application raised by the proceedings ;

2. The Judge erred in failing to fi nd that thoug h som e exe cL1l1vr , ,, ., ,

5 judicialJy reviewable under the new constitutiona l order, Pres idential power s of

appointment , suspension or dismissa l of Ministers can only be reviewed on very

narrow and limited grounds of legality and that the current judicial review
proceedings raised no such issue ;

3. The Judge erred in failing to find that there was no triable issue of the legalit y of

10 the exercise of the Presidential powers of appointment or suspension ( or failure

to do so ) of the 1st appellant that the respondent 's Form 86A raised and which
merited further inquiry in a main jud icial review proceeding;

4. The Judge erred in failing to identify, in light of the law on the reviewabil ity of
Presidential powers of appointment or suspension of Ministers , and in light of the

15 powers of Commissions of Inquiry and the duties of Commissioners , which issue

or issues he found to be triable on a full judicial review application and why ;

5. The Judge erred in failing to identify which constitutional provisions would be

subject to judicial review in light of the facts so far disclosed , at the main judicial
review hearing ; and

20 6. Based on binding precedent from the Malawi Supreme Court of Appeal , and in
view of the facts of the case disclosed in the application for leave for judic ial
nd rd th
review, the Judge erred in finding that the 2 , 3 and 4 respondents have locus
standi to remain as parties to the judicial review proceedings.

What then are the issues for determination that arise and fall to be decided in the
25 appeal under consideration by this Court?As we understand it, the main questions
raised by the appeal are as follows :

ISSUES FOR DETERMINATION

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 As this matter came for a rehea ring, the case for the respondents was that (i) the State
President should have suspended Honorable Dr. George Chaponda or Hon Dr. Geo rge
Chaponda should have voluntarily resigned) from exercising his functions as Minister
responsible for Agriculture pending the Commission of Inquiry into the maize purchase
s because he may interfer with the investigations and (ii) Commissioners Banda ( the
Solicitor General) and Kayira (an Auditor in the Auditor General's office) who work for
Government would be, by reason of their status as public servants alone , biased or be
influenced by the then Minister of Agriculture (Hon Dr. George Chaponda).

Further , in so far as we were able to gather from the grounds , the appeal raises legal
10 issues which this Court is being called upon to determine . The proceedings seem to
raise the following questions viz : whether any court would be "satisfied " that the judicial
review proceedings commenced by the applicants raise prima facie a "clearly arguable"
case: is it a fact that a cabinet minister being investigated by a Commission of Inquiry
would have (witho ut evidence of intention or propensity and in the light of the powers
15 and duties of Commissioners and witness under the Commission of Inquiry Act)
interfered with inquiry proceedings so that he ought to have resigned from his office or
be suspended pending the inquiry, purportedly in keeping with section 7 of the
Commission of inquiry Act and constitutionalism? ; would a cabinet Minister (Hon Dr.
George Chaponda)responsible for Agriculture summoned to give evidence by a
20 commission of inquiry comprising , among others , the Solicitor General and an auditor
from the National Audit office, influence the two in the absence of any other facts
leading to such conclusion but basing only on the fact that the two are public servants?

As regards the first question , it oug ht to be noted that no provision in the Constitution or
any statute has been cited that compels a person under inquiry by a Commission of
25 Inquiry to resign their office pending an inquiry . It furthermore has not been contended
that there is at law a presumption of interference with investigations arising in fact or
Lir1<.ler
any provision of any law . Thus , the question this court will grapple with , on this
appeal therefore is whether or not , in view of the powers and duties of commissioners
and witness under the Commission of Inquiry Act, the matter for which judicial review
{C• was sought and granted prima facie raises a "clearly arguable case" fit for further

13
 inquiry to the satisf action of the court.And , on the second issue , the quest ion 1swh"l ,.
any court would be "sat isfied " that a prima fac1e clearly arguab le case 1nvolv1nLlL 1r1~~ 1

arises in any situation where public officers sit ,n a comm1ss1on o' :·1 qu,, y· ;1"" . 1

cabinet minister.

5 As we unders tand it further , the main questions raised by the appeal , following our
reading of the grounds of appeal enumerated above, arise from the grounds of appeal.
There are therefore basically four issues for determination before th is Court. As this
matter came for a rehearing, the parties were desirous of the following issues
determined on this appeal viz . :Whether in the circumstances of the case and the facts
10 before the lower court, the judge was just ified to hold that the execut ive powers of the
Appellants are reviewable ;Whether in the circumstances of the case and the facts
nd
before the lower court the learned judge was justified to hold that the 2 , the 3rd and 4 th
respondents (we will refer them to as 'the other respondents ') have locus standi in the
present proceedings .

15 For all intents and purposes , with regards to the issue of sustenance or vacation of
leave to proceed with judicial review , the pivotal issue is whether or not the executive
powers of the 2nd appellant (The State President ), in the circumstances of the case at
hand, are reviewab le .

THE ARGUMENTS (THE PARTIES ' POINTS OF CONTENTION)

20 This Court will now look at the arguments that have been raised by the parties in either
support or opposition to these grounds of appeal and questions for determination arising
from these grounds of appeal. We shall start with the appellants ' arguments then move
on to consider those put forward by the respondents .

25 The Appellan ts' Arguments

Respec ting ground one , the appellants surmis es that the Judge er red in failing to
co ntextualize the proceedings by recognizing (i) the non-binding nature of Commission
of Inquiry findings on the Presid ent and (ii) to also consid er the powers of members of

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Commi ssion s of Inquiry when considering the allegation of potential interference in the
Comm ission's work by the 1st appellant as there was no evidence on record of efforts to
.
interfere with the Commission 's work . Thus , he erred in holding that it was necessary for
the President to ask the 1st appellant to voluntar ily resign from his office or for the
5 1st appellant to voluntarily resign his office pending the inquiry . In the result, the
argument con tinued , there was no triable issue fit for a full judicial review in the
application raised by the proceedings .

It was further submitted by the appellants that the Judge failed to consider material
given to him in oral arguments about the duties and powers of Commissioners under
10 the Commissions of Inquiry Act and those of witnesses . Thus , he failed to consider the
lack of evidence showing a strong probability (and not just a mere poss ibility) that Hon .
George Chaponda would interfere with the Commission or that the two Commissioners
would be biased in his favour .Appellants add that the judge failed to notice the absence
of a law, statutory or constitutional that obliged resignations for officers under inquiry . It
15 was then put to this Court that had the Judge considered all this , he surely should have
come to the inescapable conclusion that an arguable case fit for judicial review had not
been made out.

The appellants have argued grounds two , three , four as well as five together and put it
thus

20 First, the appellants argue that the Judge erred in failing to find that though some
executive action may be judicially reviewable under the new constitutional order ,
Presidential powers of appointment , suspension or dismissal of Ministers can only be
reviewe d on very narrow and lim ited grounds of legality and that the current judicial
review proceedings raised no such issue ; secondly , it was the view of the appellants
25 that the Judg e erred in failing to find that there was no triable issue of the legality of the
exerci se of the Presidential powers of appointment or suspension (or failure to do so) of
,, <1pf eflanr that the responde nts' Form 86A raised and which merited further

1 , Jc.t.11, 1a1 review proceeding, thirdly , the appellants co ntended that the
Juuy e e1red in failing to identify , 1n light of the law on the reviewability of President ial
30 power s of appointment or suspension of Ministers , and in light of the powers of

15
 Commiss ions of Inquiry and the duties of Commissioners . which issue or issues he
found to be triable on a full judicial review appl ication and why . Lastly , the appellants
argue that the Judge erred in failing to identify which const itut ional provisions would be
subject to judicial review in light of the facts so far disclosed , at the main judicial review
5 hearing .

Respecting ground six of the appeal , it is submitted by the appellants that based on
binding precedent from the Malawi Supreme Court of Appeal , and in view of the facts of
the case disclosed in the application for leave for judicial review, the Judge erred in
finding that the 2nd, 3rd , and 4 th respondents have locus standi to remain as parties to
10 the judicial review proceedings .

It is for the above reasons that the appellants contends that the grant of leave to move
nd rd th
for judicial review be vacated and that the 2 , 3 and 4 respondents lack locus standi
in the case. It is also urged on the part of the appellants that the respondents be
condemned in costs of this appeal as well as those of the Court below .

15

The Respondents Arguments

20 The respondents begins by contending that leave to proceed with judicial review was
properly granted . It is then submitted by the respondents that at the stage of application
for leave the requirement for an applicant to have leave for judicial review is to sieve out
trivial cases and that a High Court judge 's duty at this stage, to hear an ex parte
application for leave for judicial review while sitting as a single judgedoes not have to
25 dwell into the matter at depth but has to merely consider whether there is an arguable
case . The Court 's attenti on was then drawn to the dictum of Justice of Appeal Msosa in

16
 Malawi Broadcasting Corporation v Ombudsman 1to support the preceding argumen t
that at this stage the court is not supposed to dwell in-depth into the substantive merits
of the case . We are therefore urged to consider that the question at this leave stage
should be whether the judge in the court below went into the inquiry of whether there
s are questions fit for further inquiry and not necessarily whether the appellant had raised
a good case against the respondents claim. This Court 's attention was further drawn
tothe Zambian case of Cha/we v Attorney Genera!2, where the Zambian High Court
considered an application made under Order 53 of of the Rules of the Supreme 1965 to
discharge leave for judicial review. It is said that the Court dismissed the application and
10 advised that on applications to discharge leave for judicial review, especially those
premised on the basis that the applicant has no arguable case , the application for
discharge should only be granted under exceptional circumstances. Counsel for the
respondents continued to submit that if anything the merits (the strength of a case)
should be a matter for the substantive hearing. It is further argued that the test to be
1s used in determining whether at this stage the respondents herein have an arguable
case , therefo re, is whether the respondents have reasonable grounds for believing that
there has been breach , or threat or failure to perform a public duty and that the issues
require further inquiry by the court . Counsel then concludes that the court a quodwelt at
length to discuss the issues that required further inquiry in terms of the arguments that
20 were before it including the main argument , i.e.whether executive orders not to suspend
cl cabmet rn1n1sterwas reviewable . It is argued that the court below rightly concluded
that all executive powers under contemporary constitutional law is reviewable . Thus ,
this being the main bone of contention on the question whether the Order for Leave for
Judicial review should be sustained or not, it effectively meant that the appellant 's case
lacked the 1equ1s1telegs to stand on and was meritoriously dismissed . In addition , the
respondents submitted that the Court has the authority to review acts of the executive in
cases where such executive actions have the propensity of being ultra vires
co nstitutional law. It is therefore surmised that since the main question in this case is

17
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whethe·r or not the 1st and 2 nd appellants' action or/and 111act1on

vis-,,-..,,,, ' 1·

alleged corruption scandal in the purchase of maize from Zambia are in compl iance 1,v1
lh
Malawian Constitutional law as well as the Com mission of Inquiries ' Act, in particular
section 7 of the Commiss ion of Inquiries' Act , this is a question fit for further inquiry

5 It is further our understand ing of the respondents that this appea l 1s prem 1seri ,:;-- '' '•
opinion that the powers of the 2 nd appellant not to suspend a cabin et minister histor ically
emanate from what were hitherto called royal prerogative powers and therefore
historically not subject to judicial review . As an alternative or exception to the preceding
argument , the respondents are of the view that the appellant s are arguing that if at all
10 reviewable , then the 2nd appellant's executive powers to appo int, suspend or dismiss a
cabinet minister is so narrow and can only be on the basis of legality as laid down under
section 94 of the Constitution and that the present case does not fall within this
provision . The respondents are of the contrary view and submit that 'legality ' in the
context of exercise of the 2 nd respondent 's powers encompa sses a lot of issues . For
15 example , this means whether the 2 nd respondent followed sect ion 7 of the Comm ission
of Inquiries ' Act by not suspending the 1st appellant pending the conclusion of the
Commission of Inquiry. Further , they opine that by reading the Constitution as a whole ,
st
the 2nd appellant acted utra vires the Constitution by maintaining the 1 appellant as a
line Minister in a Ministry which was being investigated in a gross corruption scanda l
st
20 with the likelihood of his interfering with investigations and also by putting the 1
appellant in a situation which would compromise the public trust bestowed on him .In
fact , it is the respondents ' argument that in compa rable jurisdictions , the Courts have in
times past reviewed the constitutionality of appoi ntments , suspension and removal of
Cabinet or Prime Ministers . In other words , suspension , removal appointments of
25 Cabinet Ministers is a subject for judicial review . In sum , the respondents submits that
at this stage , it is not necessary for them to go into the merits or demerits of its case
except to point out that there is a serious quest ion fit for further inquiry at judicia l review
hearing and that the court below had the authority to review the President 's powers
(not) to appoint or remove or suspend members of the Cabinet.Thus , the Court was
30 referred to the Papua New Guinea case of Re Reference to Constitution section 19(1)
by East Sepik Provincial Executive [2011] PGSC 41 where the Supreme Court of Papua

18
 New Guinea consid ered the question whether the removal of the then Prime Minister
and appoint ment of another Minister was legal and Consti tut ional within the Context of
their Constitutio nal law and held that the Supreme Court of Papua New Guineahad the
powers to consider such a subject. This Court was howevernot favoured with a copy of
s the decision or the Constitution of Papua New Guinea so as to allow us an opportunity
3
to see if such authority could be used to interpret our own Constitution .

T he respondents also commented on the case of President of the Republic of South

4
Africa v South African Rugby Football Union and others relied on by the
appellants .It is submitted by the respondents that this case should be distinguished by
10 this Court . The respondents submit that one of the questionsthe court was dealing with
was whether the appointment of Commission of Inquiry amounts to an 'administrative
action' reviewable under the South African Constitut ion . In the view of the respondents
that under South African Constitutional law, 'executive actions ' are distinguished from

3 ect ion 11 of th e Ma lawi Co n stitut io n ins tru ctive ly p ro vid es as follow s rega rdin g how o ur

Const ituti on sho ul d be interpr ete d :

·· 1nterp rcta tion
( l) App ro pri ate pr inc ipl es o f interpr et ati on of th is Cons tituti on shall be developed and
empl oy ed by th e cour ts to reflect th e unique character and supr em e status of thi s

Co nstitution .
(2 ) In interpret ing the provisio ns of thi s Con stitu tion a court ofla w shall -
(a) promote the values whi ch underli e an ope n and democrati c soci ety;
( b) take full accou nt of the pro visions o f C hap ter Ill and Chapt er IV ; and
(c) whe re appli ca ble, hav e rega rd to curr en t no rms of p ublic in ternational law and

L·u111p
a r:1bk lc.m .:ign ca se law .
-rL· .1 l tH1rt
, , \\ 1,L 0

Pl . Id\\ lkcl arc~ an ac t orexecutive o r a law to be in va lid, that co urt

rna:, appl) suc h int erpre tatio n of that ac t o r law as is co nsiste nt w ith thi s Con stituti on.
(4 ) Any law that o usts or purp or ts to oust th e j urisd iction of the court s to ent ertain matter s

l o thi s Con stitu tio n shall be inva lid.' '

l' L'rl:1i11i11g
.... · l · 1-.\.· ill\ o h L'd the cha llen ge o f pre sidenti al appo intm e nt of Co mm iss ion of

19
 '

.
'administrative actions '. They continued to argue that under the ;:,oulh Africa•"
Constitution only 'admin istrative actions ' are subject of judicial review and not 'executive
act ions'. It is their furthe r argument that this distinction made the Court arrive at the
conclusions it arrived at in the case . Thus, distinguishable from Malawi where under our
s Constitutional law, every decision of the executive , whether classified as 'adm1nistrat1ve
or 'executive ' is reviewable by courts of law.

Regarding the issue of locu s standi , the respondents begin by observing that the
Attorney General had submitted that the court a quo erred by holding that the other
parties have locus standi in the present matter notwithstanding the Sup reme Court of
10 Appeal position in Civic Liberties Committee v The Minister of Justice and Others 5
, the CILIC case') and subsequent High Court decision in Trustees, Women and Law
(Malawi) Research and Education Trust v Attorney Generaf( 'the WILSA case').

1s submitted by the respondents that theyagree with the Attorney General that the
CILIC case is binding on the court a qua and that the CILIC case was actually followed
_5 by the lower court. The WILSA case on the other hand, they continued , was not binding

on the court below and the court a quo had the discretion to depart from it.The
respon dents further argue that they agree with the Attorney General that thf WILSA
case is indeed one of the most recent decision on the issue of locus standi . However ,
they observe that the said decision is from a court of the same jurisdictional hierarchy
20 as the one that made the decision, the subject matter of this appeal and therefore not
binding on it. Further , the respondents submitted that in so far as the WILSA case held
that an NGO cannot commence judicial review proceedings unless its own rights have
been violated, then it was per incuriam the CILIC case and the constitutional right to
access to justice .

zs It was further the submission of the respondents that the threshold set down in the
CILIC case for NGOs is whether there is the presence of another NGO with a better
claim than the NGO in question . They continued to note that the Supreme Court of

5
MSCA Civil Appeal Number 12 of 1999 .
6
High Court , Principal Registry, Constitutional Case Number 3 of 2009

20
 Appe al in the CILIC case held that the court sho uld also look into the objectives of the
App licant NGO and see whether they fight for the ideals that are in issue. It is the
arg ument of the respondents that all these points exercised the court a quo's mind
th
whe n it held , inter alia , that it cannot be disputed that the 2nd , 3rdand 4 respondents are
5 organisations concerned with the championing of the rule of law in Malawi ; that it can
also not be disputed that the application sought to enforce the rule of law; that it would
thus seem to follow that there is a direct relationship between the said respondents and
the subject matter of these judicial review proceedings ; and that in answer to the
ques tion under discourse , the 2 nd , 3rdand 4th respondents had sufficient standing or
10 interest in theproceedings .

The respondents further submitted that CILIC case is not for the proposition that NGOs
cannot bring up public interest cases . In their view the threshold is, among other issues ,
that there is an absence of other organisations that are better placed to take up the
case . Thus , in their opinion at the hearing of the application the respondents herein
15 demonstrated that for the subject matter , there are no organizations with better interest
than the respondents herein and that theappellants did not raise any objection to this
speci fic point. Accordingly , it is their submission that the decision of the court below
was in line with the CILIC case which case was binding on it.

The respondents have invited this Court to note that the case at hand is very significant
20 in vindicating the rule of law in that it would help to hold the executive to be more
accoun table and transparent. They went on to submit that in any case , the whole case
1s about whether the appellants acted within the law considering that both Appellants
are membe rs of the executive whose exercise of powers should always be checked by
the Judiciary as part of checks and balances . It is further said the case raises very
25 significant constitutional law issues as well as human rights questions as the rights of
ci11y Malawians to access basic staple food may be affected by the Appellants'
k-.. ::;,un f-"' rne, ,t 1s the subrn1ss1on of the respondents that the matter raises the
quest1onswhether and to wha t extent should the Judiciary check the powers of the
exec utive branch of government. Thus , it is said that these questions are so important
·ri • . • they should move the Court to approach the issue of locus in a liberal way . The

21
 respondents then further claim that no other NGO can claim a better nexus to the issues
raised than the parties here at. In the alternative , the respondents submit that it is high
7
time this Court overrules the CILIC case , Attorney-General v Fred Nseula ;Attorney -
General v Malawi Congress Part/and The President of Malawi and another v
5 Kachere 9 and adopt a more liberal approach to locus standi which is human-right s
based and more aligned to Chapter IV of the Malawi Constitution and contemporary
international human rights standards and depart from what the respondents term
otherwise hitherto Supreme Court of Appeal posit ion which they said can easi ly be
interpreted as conservative and retrogressive .It is in this regard their view that the issue
10 of locus standi is based on the interpretation of Order 53 of the RSC (or Order 54 of the
CPR , 1998) read with Section 15 (2) of the Constitution, 1994 as most recently
amended. They therefore submitted that section 15(2) of the Constitution read with
section 46(2) should be interpretedmore broadly and purposively , giving more meaning
to the right to access to justice and right to effect ive remedy as opposed to limiting it.
15 The respondents then invited us to consider that in cases like the present one, the rural
masses who are most likely to be the hardest hit by any scarcity of maize cannot easily
nd rd th
take up cases like the present one . On the other hand NGOs like the 2 , 3 and 4
respondents have the resources to take up cases like the present one on behalf of the
poor masses . The respondents also submit that in the context of this case and in the
20 context of similar cases where NGOs take up cases on behalf people who cannot so
easily stand for themselves , a limitation on access to justice based on a restrictive
interpretation of standing amounts to unreasonab le limitation of the right to access to
justice. It is therefore submitted that a conservative and restrictive interpretation of
standing laws easily violates their right to access to justiceand that such restriction
25 cannot meet the standard of limitation allowed under section 44 of the Constitution .

The respondents then took us on a journey of international human rights law standards
on locus standi which they invited us to follow in the matter on appeal. It was then

7
MSCA Civil Appeal No. 32 of 1997
8
MSCA Civil Appeal No. 22 of 1996
9
MSCA Civil Appeal No. 20 of 1995

22
 subm itted by them that contemporary international human rights law has evolved to set
stan dards that are more liberal and recognize the rights of civil so cieties to bring up
action popularis . It was urged on behalf of the respondents that an 'open and
democratic society ' is one that allows for vibrant civil society and media with more
s flexibl e standing laws , especially for cases involving exercise of public authority. It is
further argued that suchmore flexib le standing lawshave been developed in 'more open
and democratic societies '.

The respondents then concluded their submission on the issue of locus standi by saying
that the difficulty in Constitutional challenges is that the negative effects of locus standi
10 are most often not felt by a particular class of the society but by the public generally .
Thus , in their view , restricting direct and personal effect on every public decision as a
yardstick for standing in public law cases of the present nature would invariably kill the
whole idea of checks and balances as practically there may be no one with interest
·over and above ' that of the general publi c.

15 In sum , the respondents submit that the appeal herein should be dismissed with cost ;
and that this Court should give the necessary directions for an expedited hearing of the
Motion for Judicial Review .THE LAWAND DISCUSSION

The Law

Supreme Court of Appeal Act 10

20 Section 21 of the Supreme Court of Appeal Act provides for how civil appeals of the
nature before this Court should be handled. The relevant parts of the said section 21 of
1.1.:~Suµrerne Court of Appeal Act states , inter alia , that:

''An appeal shall lie to the Cou rt from any judgment of the High Court or any
judge thereof in any civil cause or matter :
2s Provided that no appeal shall lie where the judgment ...... is-

.,. rle, allowrny c:in t]Xtens1on of time for appeali ng from a judgment ;

l 11.1p t1..·r.1.(J I ul th~ Laws orMalm-\-i

23
 .
'

(b) an orde r giving uncond itional leave to defend an action;

(c) a judg ment which is stated by any written law to be final

(d) an order absolute for the dissolution or nullity of marriage in favour of any
party who having had time and opportunity to appeal from the decree nisi
5 on which the order was founded has not appealed from that decree "

Further , section 22 of the said Supreme Court of Appeal Act gives powe r to this Court.
on the hearing of an appeal from any judgment of the High Court in a civil matter , to
confirm , vary , amend , or set aside the judgment or give such judgment as the case may
require . The said section 22 of the Supreme Court of Appeal Act is in the following
10 terms as regards the powers that this Court can exercise on an appeal in civil matters:

"( 1) On the hearing of an appeal from any judgment of the High Court in a civil
matter , the Court-
(a) shall have power to confirm , vary , amend , or set aside the judgment or
give such judgment as the case may require ;

15 (b) may , if it thinks it necessary or expedient in the interests of justice-

(i) order the production of any document , exhibit , or other thing connected
with the proceedings , the production of which appears to it necessary for
the determination of the case;
(ii) order any witness who would have been a compellable witness at the trial
20 to attend and be examined before the Court , whether he was or was not
called at the trial , or order the examination of any such witness to be
conducted in manner provided by rules of court before any member of the
Court or before any officer of the Court or other person appointed by the
Court for the purpose , and allow the admission of any deposition so taken
25 as evidence before the Court ;
(iii) receive the evidence , if tendered , of any witness (including any party) who
is a competent but not compellable witness , and , if a party makes
application for the purpose , of the husband or wife of that party ;

24
 (iv) remit the case to the High Court for further hearing , with such instructions
as regards the taking of furthe r evidence or otherwise as appear to it
necessary ;
(c) shall , if it appears to the Court that a new trial should be held, have power
5 to set aside the judgment appealed against and order that a new trial be
held ;

(d) may make such other order as the interests of justice may require.

(2) Whenever the Court gives instructions for the taking of further evidence, it
shall make such order as will secure an opportunity to the parties to the
10 proceedings to examine every witness whose evidence is taken ."

As it were, this Court , on the hearing of an appeal from any judgment of the High Court
in a civil matter has wide powers . It can confirm, vary , amend , or set aside the judgment
of the court a quo or give such judgment on appeal as a particular case may require.
Section 22 of the Supreme Court of Appeal Act gives this Court unqualified capabilities
15 to do justice according to the dictates of the law by either confirming , varying ,
amending , or setting aside the judgment of a court a quo or giving such a judgment on
appeal as a particular case requires . So much about the powers of this Court on an
appeal in civil matters . We shall now proceed to deal with issues arising and falling to
be determined on this appeal.

20 Thus , respecting the applicable law in this matter , this Court will make reference thereto
as we consider the various issues raised herein by the parties . This , we will be doing
hereunder as follows :

Leave for judicial review

It will be recalled that leave to apply for judicial review together with an order of
25 interlocutory injunction was granted to the respondents restraining the 1st appellant from
discharging his duties as a cabinet minister . As it were , the case for the respondents
r,1s ti';: lt 11 • 1h 0 State President must suspend Hon . George Chaponda or that Hon
,v, •~l: c, dp , 'Ut 1 must resign) from exercis ing his functions as Minister responsible
ior Agriculture pending the Comm 1ss1onof Inquiry into the maize purchase . The premise

25
 upon which such orders were so ught was stated to be tra 1
It WJS fr-;:i ' r, '

George Chaponda may interfere with the investigation s, and that (11) Co•rn'r.,

Banda ( the Solicitor General) and Kayira (an auditor in the Auditor General's office)
who work for Government would , by reason of their status as public servants alone , be
5 biased or be influenced by the Minister of Agriculture (Honorable George Chaponda )

We would like to agree with the court below on its understanding of the law when it
stated that "leave should be granted, if on the material then available the court thinks
without going into the matter at depth , that there is an arguable case granting the relief
11
claimed by the applicant . The test to be applied in deciding whether the judge is
10 satisfied that there is a case fit for further investigation at a full inter parties hearing for a
substantive judicial review is also discussed in R v Secretary of State for the Home
Department. Ex parte Rukshanda Begum 12 . As we understand it, the key words in the
above dicta are the words "an arguable case" and "if the judge is satisfied." What do
these words import and what level of scrutiny must the material subjected tobefore the
15 judge grants leave? Thus, in R. v Inland Revenue Commissioner, ex parte National
13
Federation of the Self Employed and Small Businesses it was instructively put that
the rightto refuse leave to move for judicial review is an important safeguard against
courts being flooded and public bodies being harassed by irresponsible applicants for
judicial review. Further , in the same judgment it was stated by Lord Diplock stated that
20 the requirement of leave may prevent administrative action being paralyzed by a
pending, but possibly spurious , legal challenge. 14 It is easy to understand that the aim of
this requirement is therefore to "sieve out" proceedings which in the court's view, are
spurious , and remain with those which the court is satisfied , are "arguable cases." The
purpose for the requirement of leave is to eliminate at an early stage, any applications
25 which are either frivolous, vexatious or hopeless and to ensure that an applicant is only

11
see R.v inland Revenue Commissioner s, ex parte National Federation of Self Employed and
Small Businesses Limited [1982] A.C 617 , 644
12
[1990] COD 109 CA
13
[1982] A.C 617
14
Ibid. 643

26
 IJ

allowed to proceed to a substantive hearing if the cou rt is satisfied that there is a case fit
fo r further cons ideration . The require ment that leave must be obta ined is designed to
preve nt the time of the court being wasted by busy bodies with misguided complaints of
administrative error , and to remove the uncertainty in which public officers and
s authorities might be left as to whether they coul d safely proceed with administrative
action while proceedings for judicial review of it were actually pending even though
misconceived . This is the essence of the judicial pronouncement in R.v Inland
Revenue Commissioners ex parte National Federation of self-Employed and
Small Businesses case above. Hence , the hold ing in Ex parte RukshandaBegum ,
10 above that leave to proceed to judicial review shou ld be granted only where the court is
"sat isfied " that there is a case fit for further enq uiry. Thus , in R. vs the Legal Aid
15
Bureau , citing with approval Ex parte Ruksha nda Begum case .it was instructively
held that before leave to move judicial review may be granted , the court must be
satisfied that there is a prima facie case or an issue which is fit for further consideration
1s by the court.

What then does the word "satisfied ' used in the cases cited above import or entail? In
16
R. v Liverpool City Justices, ex pa rte Grogan , the meaning of the phrase "if a
magistrate court is satisfied " occurring in the Magistrate Courts Act , 1980, is
enlightening and throws some light. The court held that justices could only be 'satisfied '
20 that a person who had been remanded was unable by reason of illness or accident to
appe ar or to be brought before the court at the expiration of the period for which he had
been remanded 1f they had solid grounds on which they could reasonably found a
reliable opinion .

The ex parte Grogan case and the Legal Aid Bureau case entail , in our view , a
>s ,c~q ,,r ernent ttla t where the gran t of leave is challenged , the judge must of necessity
)L·n, , -:,lfatr to Ilic parties why he 1s satisfied" that there is an issue fit for further
'illiL,lfY at tile main Judicial review hea ring, and obviously, the judge would do better to

', \/ l l ~ I ! I I{ (I' ) X

27
 '

state ·the issue or provide an outline of it. In the Lega l Aid Burea u case the court
pointedly said :

"This was an ex parte application . In such a case leave is or should only be

granted if prima facie there is already an arguable case for grant ing the relief
5 claimed. This is not necessarily to be determined on 'a quick perusal of the
material ' although clearly , a 'prima facie arguable ' case in depth examination is
inappropriate. Furthermore , a 'prima facie arguable' case is not established
merely by the disclosure of 'what might on further consideration turn out to be an
arguable case ."

10 As we understand it therefore, it is only when there is undoubtedly an arguable case

that leave should be granted ex parte. Equally , it is only when prima facie there is
unmistakably no arguable case that leave should be refused ex parte .

In the discussion and analysis that follows , the Court will demonstrate that no arguable
case was made out fit for judicial review. This finding and conclusion will be grounded
15 on the fact that there was no viable ground for the judicial scrutiny of executive action
disclosed by the respondents and also because largely , there was no arguable case for
judicial review that was made out. It will also be noted that apart from putting it in
handwritten ink on Form 86A that this was a case fit for judicial review and without
stating any reasons why, the judge also failed , in the ruling under challenge in this
20 appeal , to disclose any reasons satisfying the requirement that this case raised an
arguable case fit for judicial review when challenged to do so at the application to
discharge the grant of leave . This was on the alleged ground that he did not want to
"delve " into the main issues . Did this bar the judge from at least identifying the issue he
did not want to delve into and discuss in outline , why he was satisfied there was an
25 arguablecasefor judicial review?

THE COURT'S VIEWS AND DETERMINATION

We must agree with the appellants as well as the respondents that this appeal raises
very important questions of public law and public interest litigation . It is time that we

28
 '

should as a nation address the issues that face the Malawi nation with a sober mind.
The parameters of what the court s should delve into in judicial review proceedings need
to be defined or refined .And , whether a case is fit for judicial review should not be based
on popular opinion clothed with the courts blessing by merely saying 'we say so . This
s Court is alive to the fact that the public expect more from its judic iary. On the other
hand , it is also important for the Courts to alway s remember the prescriptions of the
Constitution in section 103 which provides for the independence and jurisdiction of the
courts and the judic iary . The relevant parts of the said section 103 in subsect ion (1) and
(2) instructively states that ;

10 "(1) All courts and all persons presiding over those courts shall exercise
their functions , powers and duties independent of the influence and
direction of any other person or author ity .

(2) The judiciary shall have jurisdict ion over all issues of judicial nature
and shall have exclusive authority to decide whether an issue is within its
15 competence ."

We must advise that if the courts are not careful and not apply the law but as it were
rende r their decisions by a mere "we say so" premised on popular public opinion then
there will be no room for the courts to act on challenges to the grant of leave for judicial
review or refusals to grant leave . As a matter of fact , that will be abdication of our
20 constitutional mandate or what the Constitution enjoins us to do at all times after we
J•v• OL.1 J.ic1L 1.i l oath of office i e to do justice to all mann er of people without affection
17
1will and o nly dec ide cases based on facts presented .
o r 11

The Judge erred in failing to properly identify which const itutional provisions would be
subject to judicial review at the main judicial review hearing in light of the facts so far
1,scl .i sP,f Th,c; is reflected in the dictum of the judge when one reads the reason

1 11 .: ,, t.:1 ll , , t.L l' "1tl Hit11rL'-.,PL'L·t to persons. and do equal right to the poor and to the rich,
. 1, i 1.1111.iL.I!:-
.111,I 1111paniallydischar ge and perform all the dut ies incumben t upon us acco rding
: ) l' , l ,, 1 , LII .ibilitics and untkr standing. agreeably to the constitution and laws of the

29
 -,

advanced for granting leave for judic ial review . The ratio decidendi of the court below
on this point is captu red in the following words :

"The case of Council of Civil Service Union v Minister for the C1v11 ,C:,prvirP r · ,,,, ·

AC 374 is no longer valid law and so is the Mponda Mka ndaw1re v Attori'ey
s General [1997] 2 MLR 1, case . This is on the basis of R v Home Secretary , Ex
Parte Bentley [1994] QBD 394 , Ex Parte Everette [1989] QB 811; Patson v AG,
2008 (2) BCLR 66 . Preroga tive powers are reviewab le if they affect the rights of
individuals . The President must exercise all powers according to the Constitution
[Section 89(5) of the Constitution] . Hence , 'turning to the dec isions comp lained
10 by the applicants in Form 86A , the same being decisions which have, alleged ly,
been made by the Respondents in total disregard of their constitutional powers
and obligations ought , no doub t, to be the subject of judicial review by the
judiciary .... ' All constitutiona l powers whe ther you prefer to call them "execut ive
powers" or "administrative powers " are a subject of judic ial review ."

1s First, it is well in this regard that we ought to be very cautious and careful here so as not
to lose focus. Constitutional review is availab le against President ial powers of
appointment of Min isters or Commissions of Inquiry but it is very limited review,
restricted to legality , at most. Secondly , and most importantly , it must be pointed out
that no case has been established of any specific provision of the constitution impacting
20 on the need to suspend Hon George Chaponda or affecting the two Commissioner 's
partiality that will be or will need to be examined in a fu ll j udicial review hearing .

In other words , having the powers to review is one thing. Having the matter or issue to
be reviewed is a totally different matter altogether . Judicial review should only ensue
where the court is satisfied that the re is prima facie ; a clearly arguable case fit for
25 judicial review. In this Court 's conc lusion, there is no such arguable case on the issue of
suspension of the Minister or the partiality or lack thereof of the Commiss ione r
deserving further investigation by way of judicial review . The court did not delve deep
into the question of identifying the questions fit for judicial review purportedly "out of fear
of usurping the powers of the court which is to handle the substantive judicial review ."
30 This was wrong. At least on the challenge of the grant of leave , these issues ought to

30
 '

have been identified for the challenger to be convinced that the court was "satisfied " of
the exist ence of such issues . No such issues fit for further inquiry exist actually, and that
could explain the failureby the court a quo to attempt to identify them, and in any case,
as this Court willfurther demonstrate below, no arguable case exists .

s Reviewabilit y of Ex ecutive Ac t ion o r Inaction

The court a quo reasoned that sections 4 , 12 (1) (f) and 108 (2) of the Constitution gives
it the power to review all decisions or actions of Government for conformity with the
constitution . It further held that this review power is not limited to administrative action
but extends to include executive decisions .

10 However , it must be pointed out there is no denying of the fact that limited powers to
review 'executive actions ' in the form of appointments of Ministers or Commissions of
Inquiry exist. It was actually conceded by the appellants in the court below and was
therefore not an issue. What was an issue and still remains so under this appeal are the
circumstances under which the review arises but the court below did not discuss .

15 As we understand it, on the issue of the reviewability of executive action derived from
prerogative powers , the appointment of Ministers and Commissions of Inquiry are not
judicially reviewable being executive action . At first glance, this line of reasoningmight
seem overboard but for the South African case of Presiden t of South Africa v South
16
African Rugby Footba ll Uni on . The case raises important questions of legal principle
20 concerning the basis on which the courts may review the exercise of presidential
powers . It makes it understandablethat Presidential powers derived from royal
1 rer oga11ves whi ch do not have any statutory or constitutional underpinnings or
llm1tat1ons or do not affect individual rights , are the ones that are not amenable to
judicial review . Thus, other prerogative powers are reviewable. In other words , not every
25 presidential power derived from prerogative is non-reviewable . Some are others are not.
As 1r were there is criteria for rev iewability . It is subject matter and justifiability related
.i11c.J µres 1dent1al powers of app ointment of Ministers and Commission of Inquiry do not
flt into the reviewability criteria . The following remarks of the South African

1
\,"" o.;:
11li;_or~/a casc s/7.ACC/l 999/1 1.html last accessed on 5 September 2018

31
 Constifut ional Court in President of South Africa v South African Rugby Fo otball
Union are apt and instruct ive in this regard:

"[145) All of the powers conferred by section 84(2) are origina l const1tut1011rl
l
powers . They are concerned with matters entrusted to the state , subject in some
5 cases and only for the initial transitional period , to an obligation to consult with
the Deputy President. None of them is concerned with the implementation of
legislation in any sphere of government. The exerc ise of some of the powers Is
strictly controlled by the express provisions of the constitution . For example , the
responsibility conferred by section 84(2) (a)-(c) concerning the assenting to and
10 signature of bills is regulated by section 79 of the Constitution ...
These are very specifically controlled constitut iona l responsib ilities directly
related to the legislative process and the const itutional relationship between the
executive , the legislature and the courts . In exercising these responsibilities , the
President is clearly not performing administrative acts within the meaning of
15 section 33. Section 84(2)(d) and (e) which refer to the President's power to
summon extraordinary sittings of Parliament and his responsibility for making
appointments required by the constitution are similarly narrow constitutional
responsibilities which are not related to the administration of legislation but to the
execution of provisions of the Constitution .
20 [146] The remaining section 84(2) powers are discretionary powers conferred
upon the President which are not constrained in any express manner by the
provisions of the Constitution . Their scope is narrow: the conferral of honours ;
the appointment of ambassadors ; the reception and recognition of foreign
diplomatic representatives ; the calling of referenda ; the appointment of
25 commissions of inquiry and the pardoning of offenders. They are closely related
to policy ; none of them is concerned with the implementation of legislation.
Several of them are decisions which result in little or no further action by the
government: the conferral of honours , the appointment of ambassadors or the
reception of foreign diplomats , for example . It is readily apparent that these
30 responsibilities could not suitably be subjected to section 33 . In the case of the
appointment of commissions of inquiry, it is well-established that the functions of

32
 a comm ission of inq uiry are to determine facts and to advise the Presi dent
through the making of recommendations .11[3] The Preside nt is bound neither to
accept the commission 's factual findings nor is he or she bound to follow its
recommendations.
s [147) A commission of inquiry is an adjunct to the policy formation responsibility
of the Pres ident. It is a mechanism whereby he or she can obtain information and
advice . When the Pres ident appointed the commission of inquiry into rugby he
was not implementing legislation; he was exercising an original const itutional
power vested in him alone. Neither the subject matter, nor the exercise of that
10 power was administrative in character. The appointment of the commiss ion did
not , therefore , constitute administrative action within the meaning of section 33 . It
should , nevertheless , be emphasised again that this conclusion relates to the
appointment of the commission of inquiry only . The conduct of the commission ,
particularly one endowed with powers of compulsion, is a different matter ....
15 [159] ... It follows from our conclusion that the act of the President in appointing a
commission under section 84(2)(f) of the Constitution does not constitute
administrative action , that the "audi principle "19 has no application to such
appointment , whatever the source may be from which the obligation to observe it
might otherwise arise. "20

20 The above excerpt reflects the true position at law of the reviewability of presidential
powers (executive action or inaction of the President) . As we understand it, and we so
find , not all presidential powers derived from royal prerogative can be judicially
reviewed . Some can and others cannot. The reviewable power would have had
statutory founda tions or affect rights of individuals so as to render them justiciable . This
2~ pos ItIon reflects the current universally accepte d position . Those prerogative powers

'" This is a shorthand phrase refe rring to the audi alteram partem principle (the right to be given a
li-:.11111g hcl cirL' :1 (kcis ion is made) and it was first adopted by Corbett CJ in Administrator,
1 \ 1,! 1 ll li.: , -., \ I rnu h ,11h l ( >thcrs 11989] /ASCA 90: 1989 (4) SA 731 (A) at 762F -

- \~ \~s, 1tl i1.1i 1:g,_; a cast:s. /,/\('( 1999 I I .html last accessed on 5 September 2018

33
 that a·re reviewab le would be those that are impacted upon by legislation or the
Constitution or which affect individual rights . We must add that this shift 111
posIt10, ' "'-'
found full manifes tation in England in Council for Civil Service Unions v Minist er for
21
Civil Service where Lord Roskill said the following :

5 "In short th e orthodox view was at that time that the remed y for abuse of the
prerogative lay in the politic al and not in the judicial field .
But fascinating as it is to explore this mainstream of our lega l history , to do so in

connection with the present appeal has an air of unreality . To speak today of the
acts of the sovereign as "irresistible and absolute" when modern constitutiona l
10 convention requires that all such acts are done by the sovereign on the advice of
and will be carried out by the sovereign 's ministers currently in power is surely to
hamper the continual development of our administrative law by harking back to
what Lord • Atkin once called , albeit in a different context , the clanking of
mediaeval chains of the ghosts of the past: see United Australia Ltd v Barclays
15 Bank Ltd [1941] AC 1, 29 . It is, I hope, not out of place in this connection to quote
a letter written in 1896 by the great legal historian F. W . Maitland to Dicey
himself : "the only direct utility of legal history (I say nothing of its thrilling interest)
lies in the lesson that each generation has an enormous power of shaping its
own law" : see Richard A. Cosgrove , The Rule of Law; Albert Venn Dicey;
20 Victorian Jurist (1980) , p.177. Maitland was in so stating a greater prophet than
even he could have foreseen for it is our legal history which has enabled the
present generation to shape the development of our administrative law by
building upon but unhampered by our legal history .
My Lords , the right of the execut ive to do a lawful act affecting the rights of the
25 citizen , whether adversely or beneficially , is founded upon the giving to the
executive of a power enabling it to do that act. The giving of such a power usually
carries with it legal sanctions to enable that power if necessary to be enforced by
the courts . In most cases that power is derived from statute though in some
cases , as indeed in the present case , it may still be derived from the prerogat ive.

21
[1984] UKHL 6, [1985] AC 374

34
 '

In yet other cases , as the decis ions show , the two powers may coexist or the
statutory power may by necessary impl icatio n have replaced the former
p~rerogat1ve power . If the executi ve in pursuan ce of the statutory power does an
act affecting the rights of the citizen, it is beyond question that in principle the
5 manner of the exercise of that power may today be challenged on one or more of
the three grounds which I have mentioned earl ier in this speech. If the executive
instead of acting under a statutory power acts under a prerogative power and in
particular a prerogative power delegated to the respondent under article 4 of the
Order in Council of 1982, so as to affect the rights of the citizen, I am unable to
10 see , subject to what I shall say later , that there is any logical reason why the fact
that the source of the power is the prerogative and not statute should today
deprive the citizen of that right of challenge to the manner of its exercise which
he would possess were the source of the power statutory . In either case the act
in question is the act of the executive . To talk of that act as the act of the
15 sovereign savours of the archaism of past centuries. In reaching this conclusion I
find myself in agreement with my noble and learned friends Lord Scarman and
Lord Diplock whose speeches I have had the advantage of reading in draft since
completing the preparation of this speech.
But I do not think that that right of challenge can be unqualified. It must, I think,
20 depend upon the subject matter of the prerogative power which is exercised.
Many examples were given during the argument of prerogative powers which as
at present advised I do not think could properly be made the subject of judicial
review . Prerogative powers such as those relating to the making of treaties , the
defence of the realm , the prerogative of mercy , the grant of honours, the
25 dissolution of Parliament and the appointment of ministers as well as others are
, 1.,t I :t 11nK susc eptible to Judicial review because their nature and subject matter
1s suct1 as not to be amenable to the judicial process. The courts are not the
place wherein to determine whether a treaty should be concluded or the armed
forces disposed in a particular manner or Parliament dissolved on one date
r -1therthan another

35
 The above case , popularly known as the GCHQ case was one wher e under preroga: ,v0
powers , Margaret Thatcher 's government prevented GCHQ civil servants from being
members of trade unions . The unions sought judi cial review of the decision . The
question in court was whether prerogat ive powers could be made the subject of jud1c1a!
5 review and the question was answered in the affirmativ e although the applicant lost the
case in view of the national security nature of GCHQ . The court effectively held that
although prerogative powers can be subject to judicial review, there are certain
exceptions, one being whether the power is used in the interest of national security , as it
was in theGCHQ case .

10 Further , the GCHQ case is therefore highly important for it holds that the application of
judicial review is dependent on the nature of the government's powers , not their source.
The case also shows that where the power sought to be reviewed is a political issue
and not a legal one ; it is not to be determined by a court . Thus , it ultimately depends on
the justiciabi lity of the use of the power . As their Lordships held, where there are
15 statutory underpinnings to the use of the power or the use of the power affects rights of
citizens, the use of the power is reviewable.

Following the GCHQ case, in R v Foreign Secretary, ex parte Everett2 2 , a decision

taken under royal prerogative whether or not to issue a passport was subject to judicial
review , although relief was refused on the facts of the particular case. Taylor J
20 summarized the effect of the GCHQ case as making clear that the powers of the court
"cannot be ousted merely by invoking the word prerogative."The majority of their
Lordships indicated that whether judicial review of the exercise of a prerogative power is
open depends upon the subject matter and in particular whether it is justiciable . At the
top of the scale of executive functions under the prerogative powers are matters of high
25 policy , of which examples were given by their Lordships: the making of treaties, making
war, dissolving parliament, mobilizing the armed forces. Obviously, those matters and
no doubt a number of others , are not justiciable but the grant or refusal of a passport is
in a quite different category . It is a matter of administrative decision affecting the rights

22
[1989] 1 QB 11

36
 '

of individ uals and the ir free doms of trave l. It raises issues which are justici able , as for
example , the issues arising in immigration cases .

The Ex Parte Everett decision , which dealt with the prerogative power to issue or
refuse to issue a passport, is therefore in sync with the underlying reasoning in the
s GCHQ case to the effect that where a prerogative power has statutory underpinnings or
affects individual rights or deals with a justiciable question , its exerc ise will be the
subject of judicial review .The same can be said of the case of President of the
Republic of South Africa v Hugo 23 cited by the applicants (respondents) which dealt
with the exercise of the prerogative of mercy (pardon). The Constitutional Court in South
10 Africa found the exercise of such prerogative reviewable on the basis of its subject
matter as affecting rights . In analyz ing the reviewability of prerogat ive powers , the
Constitutional Court of South Africa agrees with the English position above . Accordingly ,
Justice Goldstone stated as follows under paragraph 18 of the judgment of the court on
the reviewability of prerogative powers :

15 "In England, where the prerogative powers were historically beyond the reach of
the courts , the exercise of some prerogative powers has been subjected to
judicial review . In 1984 , in Council for Civil Service Unions v Minister of the Civil
Service (CCSU), a majority of the law lords held unambiguously that a decision
making power derived from a common law and not a statutory source is not "for
20 that reason only " immune from judicial review ; and that is so in respect of
prerogative powers . What determ ines whether the exercise of such a power is
subject to the power of review is not its source but its subject matter ...
Lord Scarman put it thus :
'If the subject matter in respect of which prerogative power is exercised is
25 justiciable , that is to say if it is a matter upon which the court can adjudicate , the

- ------- -
'; Prcsidc111urthe Republic ol" South Afr ica and Others v South African Rugby Football Union
.111d Others (CCTl6 /98) [ 19991 ZACC 11; 2000 (1) SA l ; 1999 (10) BCLR 1059 (10 September
·, ' 1 111:n ,,,,11,.,,11lii ,1rg /a cnscs 1/./\CCIJ997/4.html lsast accessed on 6 September 2018 last
. "'t' ~

37
 '

exercise of the power is subject to review in accordance with the principles

developed in respect of the exercise of statutory power '
In R v. Home Secretary, ex parte Bentley [1994] 08 349, at 363 A-0 W atkins. LJ
said the following :
5 'The CCSU ([1985] AC 37 4) case made it clear that the powers of the court
cannot be ousted merely by invoking the word "prerogative ". The question is
simply whether the nature and subject matter of the decision is amenable to
judicial process. Are the courts qualified to deal with the matter or does the
decision involve such questions of policy that they should not intrude becaus e
10 they are all ill-equipped to do so? Looked at in this way , there must be cases in
which the exercise of the Royal Prerogative is reviewable in our judgment. If for
example, it was clear that the Home Secretary had refused to pardon someone
solely on the grounds of their sex , race or religion , the courts would be expected
to interfe re and , in our judgment , would be entitled to do so .
15 We conclude therefore that some aspects of the exercise of the Royal
Prerogative are amenable to the judicial process . We do not think that it is
necessary for us to say more than this in the instant case. It will be for other
courts to decide on a case by case basis whether the matter in question is
reviewable or not.
20 We do not think that we are precluded from reaching this conclusion by authority.
Lord Roskill's (in CCSU) passing reference to the prerogative of mercy in CCSU
case was obiter" '.

We must add thatthe reviewability of the exercise of prerogative power depends on the
subject matter was restated by the Privy Council in Reckley v Minister of Public
25 Safety and Immigration and Others 24, where Lord Goff of Chievely stated that the
CCSU case:"recognized that the exercise of a prerogative power was not ipso facto
immune from judicial review ; but it certainly did not go so far as to suggest that every
25
exercise of such a power was amenable to that jurisdiction. "

24
[ 1996] 1 All.E.R 562
25
Ibid. 571

38
 On the strength of these authorities , it is safe to conclude that , in contemporary English
law, the exercise of a prero gative power may be reviewed if, and to the extent that, the
subject matter thereof is amenable to judicial process . Further , having studied the South
African constitutional law position and concluded that the courts would be given to
s review the exercise of pres idential power s including prerogative ones like it obtains in
England in most of the cases , Justice Goldman in the Hugo case, made the conclusion
below relating to the overall reviewab ility of prerogative powers, which position
ultimately, is no different from the Englishviewpoint:

"[28] ... However , it may well be that , because of the nature of a section 82(1)
10 power or the manner in which it is exercised , the provisions of the interim
constitution, and in particular, the Bill of Rights , provide no ground of an effective
review of a presidential exercise of such a power ."26

Hence , even in South Africa which is a comparable juridisdiction , some exercise of

Presidential powers , may not be subject to judicial review. This then puts into
1s perspective the holding in the Constitutional Court of South Africa judgment of
President of South Africa v South Africa Rugb y Fo otball Union , (decided in 1998,
three years after Hugo) cited previously , which held that the Presidential powers to
appoint or remove Ministers or Commissions of Inquiry are not judicially reviewable as
they are not constrained by any statutory or constitutional provisions. They are what
20 were called "executive actions " and the courts were ill-suited to judicially review them.

This reasoning would also help explain the reasoning in the Botswana case of Patson v
27
. AG which was ess entiall y an immigration issue dealing with the issuance of a
passport and was for the proposition that theexercise of prerogative powers was
reviewable at common law where the subject-matter of the prerogat ivewas just iciable ,

l'rc--.idcnl orthe Republic orSout h Africa and Other s v South African Ru gby Foot ball Union
an d Others (CCT 16/98) [ I 999] ZACC 11; 2000 ( 1) SA 1; 1999 (10) BCLR l 059 ( 10 September
I l)l){)J http· \\ ,, \\ .sallii.o rg/za/cases /ZACC/1997 /4 .html lsas t accessed on 6 September 2018
I(, ,! IC)

39
 i.e. where it entailed the making of an adm inistrativedecision which affected the rights of
individuals .28

The cases cited above are far away from home but in jurisdictions like ours,
commonwealth and common law jurisdiction . Thus, the case authorities are instructive
5 and informed the Court . This we do having regard to the fact that England , South Africa
and Botswana are comparable foreign jurisdictions. As for England it is a common law
jurisdiction and its case law should be informative . We are alive to the fact that South
Africa and Botswana apply Roman-Dutch law but have written Constitutions and are
commonwealth countries. Understandably the court decisions from these countries are
10 not binding on the courts in Malawi as they are not decisions of a court within the
structure of the courts in Malawi . Nonetheless , since most of the commonwealth
countries received English common law, recourse may be had to the decisions of the
commonwealth countries applying the common law to see how a particular law has
been interpreted. Actually, this Court in Kaipa v Reginam 29 instructively said that
15 where no English case authority is available for a proposition of law in issue , the courts
in Malawi may have recourse to commonwealth authorities and where a large number
of common wealth courts have come to a common conclusion the decisions of such
courts will be highly persuasive. We shall therefore be guided accordingly by the
decisions from England , South Africa and Botswana on reviewability of executive
20 powers reposed in the President under the Republic of Malawi Constitution.

On evaluation of the cases cited above , it cannot therefore be correct to say that the
courts in Malawi have unlimited power to judicially review every exercise of presidential
power derived from royal prerogative . Judicial review of exercise of presidential will all
depend on the subject matter and justiciability of the matter. Further, as demonstrated
25 above, issues to do with ministerial appointments including the appointment of the

28
The Botswana High Court applied the case of Council of Civil Service Unions and Others v
Minister for the Civil Service [1984] 3 All ER 935, HL (E) at p 956 and R v Secretary of State
for Foreign and F Commonwealth Affairs ex parte Eve rett [I 989] 1 All ER 655 (CA) at p 660
applied.
29
1964-66 ALR Mal. 142

40
 Commission of Inquiry, which have no statutory or const itutional underpinnings are by
and large not amenable to judicial review . Thus, one wo uld therefore have expected
that the· applicants (respondents), at leave stage , would have demonstrated why the
issue of Ministerial appointment or suspension or the appoi ntment of Commissioners of
s Inquiry would have qualified for review in light of numerous instruct ive authority
precedent pointing the other way . Actually , the court should have asked itself the
important question why it thought the matter would fit a billing for further inquiry at a full
inter parte judicial review hearing in view of the plethora of authorities of which cases
are fit for judicial review from comparable jurisd iction where the subject matter concerns
10 exercise of Presidential Executive powers .

It is accepted that Hon George Chaponda was suspected of participating in some maize
scam . But then it was well to consider that he was just a suspect and or an accused
person and entitled to be presumed innocent until proven guilty by a competent court of
law.30 1fsame person were to be brought for trial , the court would have already adjudged
1s him and prejudice the presumpt ion of innocence . The quest ions that then arise and fall
to be determined are : would one have to be suspended as a Minister or even resign
their position , simply for being a suspect or even as an accused person? Considering
that Hon George Chaponda was to be presumed innocent in terms of the Constitution ,
who between appellant and the respondents is in need of protection by courts?

20 As we underst and it, the courts wou ld be promot ing executive paralysis and chaos if
they were to set a precedent that all it takes to have a Minister suspended from office , is
merely to 'suspect' him/her of a crime . Further , would the courts not paralyze and
destabi lize the execute arm of government if we simply allowed that if a Minister is
suspected of commi tting an offence, a suspe nsion sho uld inexorably and unfailingly
25 fol low? Are we as cou rts not the bulwar ks of civilization and social and political order ,
that we need to look at the bigger picture in our decision making? These questions have
vxerc,sed ou r mi nds and will inform our decision on this appeal.

1::.tallt cc1se t11Is Court has noted that the respondents failed to
lt-n1 011stratethat the court below had Jurisdiction, eit her by reference to the Constitution

"'"·c11l111-LY~>
lrJ (iii) or tht: Co nstitution
41
 or precede nt from compara ble juri sdi ction, to subjec t the power to app oint a Minister o•
a Commiss ion of Inquiry to judicial review . As it were, no constitutiona l 0r statutorv
underpinni ngs to the ap po intments have been shown . And no law that anyone
suspected of a crime must resign or be suspended , has been cited . We can well
5 understan d, that when serious criminal allegat ions are leveled against senior public
officer , it is only wise and moral ly prudent that such officer shou ld step aside the :r
offices to allow for what would be seen as unimpeded investigation. That is a course
and practice we would all expect and encourage . But it is a practice that courts cannot
enforce as it is a practice outside our legal , statutory or const itutional frame .

10

For all that we have discussed we conclude that there is virtually no legal , statutory or
constitutional basis to the prayers in the judicial review application. On the other hand ,
this Court has read dicta from England , South Africa and Malawi demonstrating the
opposite . As we understand this dicta , the power to appoint Ministers and Commissions
15 of Inquiry is simply non-reviewable . It is for this reason that this Court finds and
concludes that the respondents failed to put up a case fit for further review in a judicial
review hearing.

Section 94 read with 95 of the Constitution

We wish to go further than what this Court has observed above and note that even if
20 this was to be taken as a section 108 review , section 94 of the Constitution (dealing with
appointment of cabinet ministers) and section 89 of the Constitution dealing with the
power to appoint commissions of inquiry) have not in any way been violated by the
President or Hon George Chaponda or any of the commissioners . It is not before us that
Hon George Chaponda failed for appointment as Cabinet Minister or has fallen foul of
25 any of the disqualifying factors under section 94 of the Constitution . Under section 94(3)
(c) nothing short of a conviction for a crime of dishonesty would serve as a disqualifying
factor for appointment and , of course , a fortiori , and continuation in office. Merely being
a suspect does not , anywhere in the Constitution , serve as a disqualifying factor for
appointment as cabinet minister. Therefore , merely being a suspect cannot lead to loss
30 of office , or suspension .

42
•

Further , it is our understanding of these sections that when read together they do not
provide for removal of a Minister if there is an appointment and it later turns out that
there is· a criminal allegation against such Minister . Section 94 of the Constitution
provides for the qualification for one to be appointed a cabinet minister as follows:

s "94. (1) The President shall have the power to appoint Ministers or Deputy
Ministers and to fill vacancies in the Cabinet.

(2) A person shall not be qualified to be appointed as a Minister or Deputy

Minister unless that person-

(a) is a citizen of the Republic who upon taking office , has attained the age of
10 twenty-one years ;

(b) is able to speak and to read the English language ; and

(c) is registered as a voter in a constituency.

(3) Notwithstanding subsection (2), no person shall be qualified to be appointed

as a Minister or Deputy Minister who-

15 (a) owes allegiance to a foreign country;

(b) is, under any law in force in the Republic, adjudged or otherwise declared
to be of unsound mind ;

(c) has , within the last seven years , been convicted by a competent court of a
crime involving dishonesty or moral turpitude ;

20 (d) is an undischarged bankrupt , having been adjudged or otherwise declared

bankrupt under any law in force in the Republic ;

(e) holds or acts in any public office or appointment;

(f) belongs to, and is serving in the Defence Forces of Malawi or in the
Malawi Police Service ;

43
 ,.

·(g) has , within the last seven years . been C:(' ''"" led t,.., 1
any violation of any law relating to election of the President or elRct, · I :v

membe rs of Parliam ent. "

5 Section 95

Section 95 (2) of the Const itution gives discretion to the President to remove a Minister
and provides as follows :

"95 ... ..

(2) The President shall have the power to remove Ministers or Deputy Ministe rs
10 from their posts ."

These are specific powers given in the President and in the ordinary exercise of state
powers he/she is allowed to exercise them. If we wer e to allow that cou rts should
intervene or interject by way of review , that would be judici al ove rreach . This should be
distinguished from where the President acted cont rary to what the Constitution provides ,
15 then obviously he will be challenged for infringement , if that fits the billing in terms of
section 94 and 95 of the Constitution . It is well to remember that we do not quest ion the
President where he uses his powers in reverse . If for example he wants to remove
somebody as a Minister it iswithin his discretion , but we cannot compel him to remove a
Minister. It is overbearing and overreaching the constitutional mandate of the court.

20 The legal presumption is that the President would in good faith and in good conscience
act within the law. Yes , he might fall below expected level but where he is within the law
do we substitute his decision w ith ours ? In a democracy his choice of the people he
wants to work with could be faulty but where the law is not infringed and even where his
judgment could have been better , should the court really come in and dictate his
25 choices of who should be in cabinet. Is that really to be determined by the court or any
other person or body? Indeed , the President makes these decisions based on politics
and that is not a matter for the courts .

44
 '

We add that issues of constitutional policies which were made reference to by the
respondents in advancing their case are just a matter of preamble and introduce the
policies ;· but later on the constitution delineates what the President should or should not
do. It goes further to say certain decisions will be left to be decided by the President
5 and the basis of those decisions are provided. This is where section 94 rules. We are
not entitled to go outside section 94 and look for sense elsewhere? This would be like
asking the President to go outside section 94 of the Constitution . You cannot judge the
President's compliance with the Constitution by going outside the Constitution itself
which is the realm of the law.

10 We have looked at the record and this Court simply does not have before it even a faint
outline or mosaic of an argument that cites a constitutional provision that the President
has offended by keeping Hon George Chaponda in office and or that Hon George
Chaponda has offended by staying in office that the court would have to grapple with on
review , if at all.Further , this Court does not see any justification in allowing the
15 respondents proceed to a full inquiry either under section 108 of the Constitution or
under Order 53 of the Rules of the Supreme Court.

It is important to be reminded that in Form 86A , the respondents did not mention any
constitutional provision that the President may have offended by keeping Hon George
Chaponda in office after he was suspected of an offence . Further, the respondents did
20 not mention any constitutional provision thatHon George Chaponda would have
offe nded by remaining in office . In this Court 's viewthe respondents had a duty to show
a provision of the Constitution that would have necessitated further inquiry at a judicial
review hearing . None is cited and as the Court has shown above none exists. As seen
earlier , the qualifying criteria for ministerial appointment is under section 94 of the
•1-.,
t11ut1on It was not cited by the respondents but comes close to mind in so far as
' 1 I j f.t .,, .ire concE::
rr ,ed dlld clearly that section has not been violated .It is the
L,11
uerstand1ng of tt11sCourt that mere citation of the word "constitution " without more, is
not enough to bring a case up for further inquiry in a full judicial review setting . We are
further of the view that where nothing or no provision was mentioned at permission
t· L t•11111ss1o
n ought to have been granted by the court . Mere mantra of a

45
 I'

possibte infringement of constitutionalism should not lead to the grant of permission for
judicial review. It is advisable that specific provisions of the Constitution which would
merit further inquiry ought to have been cited and a prima facie argument based on
constitutional provisions fit for further in depth inqu iry ought to have been provided .What
s we have is that the Constitution is just being thrown in without particular reference to the
provision of the constitution that brings up the issue of constitutionalism .

It is noted further that section 7 of the Commissions of Inquiry Act has been cited . This
section talks about the duties of commissioners to be impartial. It does not discuss any
duty of the person being investigated to resign his office . It cannot therefore be argued
10 logically that there is or that there was an arguable case for judicial review based on
section 7 of the Commissions of Inquiry Act. This section does not demand that
whoever is being investigated must be suspended from office . It speaks to the duty of
commissioners to be impartial. There is no relationship at all between the two so as to
lead the court to order a further inquiry by judicial review.And , as already noted, the duty
15 was on the respondents to show how the commissioners would not have been
independent or impartial beyond mere speculation .

In sum , this Court is not saying that all prerogative powers are not reviewable . As this
Court understands the law, some prerogative powers are reviewable. The law is that
presidential prerogative powers of appointment or suspension of Ministers and
20 Commissioners are notreviewable under judicial review proceedings . Indeed, the
appointment of Minister is at the pleasure and discretion of the President. Courts
should not start questioning decisions of the President as to who he wants to be in his
cabinet. 31

Secondly, section 7 of the Constitution of Inquiry Act does not specify who can be
25 appointed to a Commission of Inquiry. We take judicial notice , as a matter of fact, that
most commissions of inquiry in our jurisdiction comprised of civil servants and or public
servants. Most of them were chaired by serving Judges or Justices of Appeal. That is a
political decision that the President has to make and manage the consequences
politically.

31
Para 5.31 of the red book Mark be Blackinjudici al review 2nd ... publi ca tion s
46
.,

Thus this Court concludes that grounds 2 , 3, 4 , and 5 of the grounds of appeal must
succeed .

Whether the 2 nd ; 3 rd ; and 4th respondents have locus standi in the case

s As O' Regan J correctly observed in Ferreira v Levin NO and Others; Vryenhoek and
Others v Powell NO and others 1996 (1) SA 984

"[E]xisting common-law rules of standing have often developed in the context of

private litigation . As a general rule, private litigation is concerned with the
determination of a dispute between two individuals, in which relief will be specific
10 and , often, retrospective , in that it applies to a set of past events. Such litigation
will generally not directly affect people who are not parties to the litigation. In
such cases , the plaintiff is both the victim of the harm and the beneficiary of the
relief . In litigation of a public character , however , that nexus is rarely so intimate .
The relief sought is generally forward-looking and general in its application , so
15 that it may directly affect a wide range of people. In addition, the harm alleged
may often be quite diffuse or amorphous . Of course, these categories are ideal
types : no bright line can be drawn between private litigation and litigation of a
public or constitutional nature. Not all non-constitutional litigation is private in
nature. Nor can it be said that all constitutional challenges involve litigation of a
20 purely public character: a challenge to a particular administrative act or decision
may be of a private rather than a public character . But it is clear that in litigation
of a public character , different considerations may be appropriate to determine
who should have standing to launch litigation ."

Now , regarding ground six of the appeal , this Court finds and concludes that based on
.·s binding precedent from this Court , and in view of the facts of the case as disclosed in
• 'c. 4
1µ~ .11...; 1 101· f1 )1 leave for jud1c1
al review , the Judge in the court a quo erred in finding
that the 2 c.13rc.1and 4 th respondents have locus standi to remain as parties to the judicial
11

review proceedings .The court a quo had reasoned as follows to find that the 2 nd ; 3 rd and
1
4 ' responden t all of whom are non-governmental organizations, have locus standi:

47
 ;'The 2nd , 3rd and 4th Ap plicants before the Court are orga nizat ions concerned
with the cham pioning of the rule of law in Malawi and the application at hand
seeks to enfo rce the rule of law, it being alleged that the Responde ·1ts ~av.-; · '
properly exercised their constitutional powers , it would seem to follow that tne; e
5 is a direct relationship between the said Appl icants and the subject matter of the
judicial review proceedings to give them locus standi "

As we see it, the court a quo deli berately chose to depart from bindi ng precedent and
did not explain its reason for doing so. In Civil Liberties Committee v Minister of
Justice and Anor3 2 , the Supreme Court of Appeal in this country held that for an
10 applicant for judicial review to show that he has sufficient interest in the matter , he or
she must show that it is his or her right or freedo m that has been violated as a bas is fo r
taking up the action . Justice of AppealTambala in that case instructively said:

" ... [l]n the field of public law, a private plaintiff can establish standing to bring an
action if he can show that the conduct of the defendant adversely affects his or
1s her legal right or interest. A strong belief or conv iction that the law generally or a
particular law should be observed , or that conduct of a particular kind shou ld be
prevented is not sufficient to ground standing . They also establish that an
ordinary member of the public who has no interest other than that which any
member of the public has in uphold ing the law, has no standing to sue to prevent
20 the violation of a public right or to enforce the performance of a public duty . The
two cases further express the view that a strong desire to enforce public law as a
matter of principle or as part of an effort to achieve the objects of a particular
organization and to uphold the values which it was formed to promote is not
sufficient to establish locus standi to commence an action. Finally , the two cases

32
[2004) MLR 55 or (MSC Civ il Appea l No. 12 of 1999) [2004 ) MW SC 1 (decis ion of 8 April
2004) http s://malawilii. org/mw /j udgment/supre me-court -appeal/200 4/1 last accessed on I 0
September 2018
48
 •
•

from the countries of the Commonwealth support the view that , in public law,
locus standi is a j urisdictional issue."33 [Emphas is supplied by us]

The High Court has persistently and consistently upheld this decision in Trustees ,
34
Women and Law (Malawi) Research and Educat ion Trust v Attorney General and
5 very recently in The State and Attorney General , ex parte Lameck Mtoza and other
ex-employees of Malawi Savings Bank. 35As stated earlier , the court a quo chose to
depart from binding precedent and did not explain its reason for doing so . In this regard
what Dr. McNight R.E. Machika observed in his book entitledThe Malawi Legal
36
System: An lntroduction perhaps should help all courts in the conduct of business
10 that comes before it:

"Broadly stated , the common law doctrine of precedent is to the effect that each
court in the hierarchy of courts is bound by the principles established by prior
decisions of courts above it in the hierarchy and the courts of equal standing are ,
with certain qualifications , bound by their own prior decisions . In a practice
15 statement the Lord Chancellor of England announced modification in the Practice
of the House of Lords. Though the House continues to regard its previous
decisions as normally binding , it now feels free to depart from any decision "when
it appears right to do so ." A marked relaxation in the practice of the court of
Appea l too has been noted .
20 One can say very little against judges paying the greatest attention to earlier
decisions of their colleagues in an effort to decide cases as they have always
been decided . Human nature ensures this and justice according to law demands
no less But more is demanded by the English doctrine than this . It is that when a
Judge ,s faced with dec ision bind ing on him because it was delivered either by a
25 court above him in the hierarchy or by one of co-ordinate jurisdiction , in theory he

'' I~00-1I f\11R ~5 or (M SCCivil Appeal No. 12 of 1999) (2004] MWSC 1 (decision of 8 April
' l 1
1, 1
1
,., il'i 11rg Ill \\ jud!.!llll'nt1-;urreme-co urt-appea l/2004/1 last accessed on 10

.ii l>!.q21-,11
.' ,i,: tl CasL' Number J
_.. 1. ,11ht1tu11u11: or
2009 (unr eported)
._ , 1•,,, 1ptl RL·~1-..11:, c i,tl Rnic,, l'asc
. .l11d1 umber 39 of 2015] decision of 15
\prii ~Ill.:; h:, the I l1gh Co urt
'" I :1" lkp:trtrncn t Chancellor College, ZOMBA 13th October 1983 . ( 1983 )
49
 ts bound to apply the principle laid down there though to his mind it Is clear that
the principle is wrong or incorrect.
The doctrine of precedent is used interchangeably with the principle of sta re
decisis , which means to stand by decisions and not to disturb settled matters .
s The principle of stare decisis is of ancient origin and the reasons for it were
stated to be stability and certainty in the law, conv enience , and uniformity of
treatment of all litigants . The idea was that a system of law which lacks certainty
and stability would be faulty and undesirable . It would be impossible for a lawyer
to give any dependable advice to a client. The result would be that the judge
10 would apply to each particular case his own personal views and would substitute
the desires of the law by his own desires. The decision of the court wou ld lose all
semblance of justice. As Spenser Wilkinson , C.J. explained in Kharaj v. Khan
[1923-1960] ALR Mai. 381the result would be that the law will fall into confusion .
In this state of confusion confidence in the honesty and integrity of the courts and
1s in their impartiality would not be maintained . Uncertainty in the law would lead to
chaos and a breakdown of organized society ."37 [Emphasis supplied by us]

As it were , the authorities above remain the position on locus standi until departed from
for reasons given.

The situation in the instant case is that the 2 nd ; 3rd and 4 th respondents have actually not
20 sworn any affidavit supported by a Statement of facts . No facts on record showing any
interest in the case other than a mere assertion that they are there to uphold their
foundational aims and objectives under their respective constitutional documents. We
have not seen their respective Constitutions. They were not placed before the court
below . As stated earlier, the respondents submit that the issue of locus standi is based
2s on the interpretation of Order 53 of the RSC (or Order 54 of the CPR , 1998) read with
Section 15 (2) of the Constitution , 1994 as most recently amended. They therefore
submitted that section 15(2) of the Constitution read with section 46(2) should be
interpreted more broadly and purposively , giving more meaning to the right to access to
justice and right to effective remedy as opposed to limiting it. The respondents then

so
 J

"
•

invited us to consider that in cases like the present one , the rural masses who are most
likely to be the hardest hit by any scarcity of maize cannot easily take up cases like the
present ·one. On the other hand NGOs like the 2nd, 3rd and 4th respondents have the
resources to take up cases like the present one on beha lf of the poor masses . The
5 responde nts also submit that in the context of this case and in the context of similar
cases where NGOs take up cases on behalf people who cannot so easily stand for
themsel ves, a limitation on access to justice based on a restrictive interpretation of
standing amounts to unreasonable limitation of the right to access to justice. It is
therefore submitted that a conservative and restrictive interpretation of standing laws
10 easily violates their right to access to justice and that such restriction cannot meet the
standard of limitation allowed under section 44 of the Constitution .

The respondents then took us on a journey of international human rights law standards
on locus standi which they invited us to follow in the matter on appeal. It was then
submitted by them that contemporary international human rights law has evolved to set
15 standards that are more liberal and recognize the rights of civil societies to bring up
action popularis . It was urged on behalf of the respondents that an 'open and
democratic society ' is one that allows for vibran t civil society and media with more
flexible standing laws , especially for cases involv ing exercise of public authority. It is
further argued that such more flexible standing laws have been developed in 'more
20 open and democratic societies '.

The respondents then concluded their subm ission on the issue of locus standi by saying
that the difficulty in Constitutional challenges is that the negative effects of locus standi
are most often not felt by a particular class of the society but by the public generally .
, ,, tl 1, , ; 1110w restricting direct and personal effect on every public decision as a
c·s yarust,ck for standing in public law cases of the present nature would invariably kill the
whole idea of checks and balances as practicall y there may be no one with interest
'over and above that of the general public.

1 t1t· c11Jove sentiments . we observe . are matters of law and their op inion of how the law
· , u ,s :::itl:11L11sll ould be interprete d and not sworn statements (affidavit evidence) in
, :, ;J J1t of r u•m 86A

51
 ,

•
The fact remains , the case for the 2 nd . 3rd and 4" resporvJp·11s 1s 11,~1 ,1 n
facts. It was not and it is not for this Court to find the facts for the respondents We
believe that the court below did not notice this vacuum in the respondents ' case. If it
nd rd th
had , surely the court would not have upheld the case for the 2 , 3 and 4
5 respondents. The court takescognizance that there was allegedlya serious concern in
the country on the availability of maize at the time this case was brought up. But, if
there were factual situations around that matter, the basis ·upon which a case is brought
to court which relies on such facts situation , courts will require the facts to be presented
in a prescribed manner. This was not done. Thus , we are not able to confirm the
th
10 constitutional mandate of the 2nd , 3rd and 4 respondents for lack of evidence of their
respective constitutions and further we have no factual basis whatsoever upon which to
evaluate the three respondents ' contentions . Our courts rely on tangible facts and
tangible evidence.

This takes us to the case for the 1st respondent , Mr Charles Kajoloweka . For this
15 purpose , which we might as well have done earlier, it will be instructive if we go back to
the grounds upon which reliefs are sought in statement of facts and the affidavit
st
verifying the facts relied upon in the application in support of the 1 respondents case
on the question of locus standi.

As we shall be familiar by now, the genesis of the matter is the issuing of a commission
20 of inquiry into the arrangement to purchase maize from Zambia and allegations of
corruption around it against the first appellant ( Dr. George Chaponda) . According to
paragraph 4 of the grounds upon which reliefs are sought:

st
"The alleged corruption scandal directly affects the rights of the 1 Applicant who
2s is finding it hard to purchase maize at the local market due to scarcity of the
commodity as well as the high prices prevalent on the market which high prices
will be attributed , at trial , to the alleged corruption scandal. "

In the statement of facts , it is said , in selected paragraphs:

30

52
 '
'
•
1. "That the 1st Applicant is a middleclass citizen of Malawi who has been
struggling to purchase maize at the local depots of ADMARC (Agricultural
Development and Marketing Corporation of Malawi). "

5 2. That since the subject matter of this judicial review revolves around issues
that directly affect the 1st Applicants access to maize, his staple food, and
to governance issue s the 1st Applican t has locus standi.

10. That the allegations go further to suggest that as a result of the said
10 scandal , there is scarcity of maize in most state owned ADMARC depots
and that the little available corn is going at exorbitant prices "

At this point we should set out the affidavit verifying facts relied upon in the application .

ltstates:
15

"Affidavit verifying facts relied upon in this application

I, CHARLES KAJOLOWEKA, of C/O John Tennyson &Associates, Private Bag

20 79 , Mzuzu in the Republic of Malawi , make oath and state as follows:

1. THAT I am the Applicant in this matter, of full age and therefore

compete nt to swear this Affidavit on my own behalf .

25 2. THAT the matters deponed to herein are from our personal knowledge ,
information and belief .

3. THAT the statements contained in all paragraphs of the Statement of

Facts , marked "A" and both exhibits attached to the said Statement are
true to the best of our knowledge , information and belief .

4 THAT I seek to chal lenge the decision of the Respondent contained in

f-orrn 86A filed herew ith and I seek reliefs also contained in the said Form
86A.
) ''

53
 • ,
•
•

'5 . THAT I make this declaration conscientiously knowing the conte nts hereof
to be true to the best of our knowledge, information and belief and by
virtue of the Oaths, Affirmations and Declarations Act.

5 SWORN by the said Deponent at Mzuzu)

CHARLES KAJOLOW EKA

This ...................... day of ........... ....... ............ 2017)"

10

The affidavit above is puzzling and troubling . It is not clear what the deponent , Mr
Kajoloweka , who is the sole signatory , is trying to do or say . In the first paragraph , the
affidavit is made on his own behalf. Immediately , in the second paragraph , he draws in
15 others , presumably the 2nd 3rd and the 4th respondents . He continues to do so by
rd th
paragraph 3. As he gets to paragraph 4 , the 2 nd , 3 and 4 respondents are dropped.
Paragraph 5 is a combination of "I" and "our." He eventually signs alone . We could not
answer the simple question as to whose affidavit this is, is it for Kajoloweka alone or for
all the respondents. These matters were raised during the hearing of this appeal.
20 There was no clarification at all. We must recall that the statement of facts cannot stand
on its own without an affidavit confirming the veracity thereof. We are not clear whether
the court below read the affidavit and made sense out of it. The issues in this matter
had far- reaching implications . Both the applicants and the court were duty bound to
exercise extra care and due diligence . What we see is a shameful laxity and lack of
25 clarity in the case for the respondents that should not find itself in the High Court .

We should nonetheless look at the statement of facts . Again the approach is too
casual. In the first paragraph there is no attempt made to specify which ADMARC
depots might have been visited by the applicants . To make it even more difficult for the
30 court , paragraph 10 talks about "allegations go further to suggest that as a result of the
said scandal , there is scarcity of maize ......"

We have already stated earlier , that there was said to have been a general outcry about
shortage of maize in the country during the period referred to in the matter. However , if

54
 ''
•
we are to institute and premise proceedings around such a matter , we should not
expect a court of law to be moved by "allegations that go further to suggest." In fact it is
quite apparent to us that Mr Kajoloweka realised that he needed to do more.- That is
why in paragraph 3 of his affidavit he refers to " ....... both exhibits attached to the said
5 statement of facts ...... " The statement of facts does not refer to any attachments and in
fact , none were attached.

The orders that were made by the court below drew on and accepted the affidavit of
Charles Kajoloweka . It is the same affidavit that allowed the rest of the respondents to
10 be granted leave to seek judicial review .

We are unable to draw any clarity from the reliefs that are being sought as read with the
statement of facts and the affidavit in support. On this basis we would again not uphold
leave for judicial review.
15
While we are on the issue of standing, we wish to briefly revive one point, as put in
8
Malawi Human Rights Commission v. Attorney Generaf it was emphasised that
human rights , by the expression are bestrode in human beings. It is therefore human
beings who are intended beneficiaries of human rights . When human rights are
20 threatened or violated , it is human beings whose rights will have been threatened or
violated . That as a priority where human beings affected can be ascertained , they
should be allowed the opportunity to vindicate their rights . The justification for this by
human rights defenders is roofed in lack of opportunity of the victims in approaching the
threshold of courts for various reasons. That it would be wrong , dangerous and unfair , if
25 it became the practice of human rights defenders to snatch away cases from individuals
who themselves are quote capable of complaining or bringing up actions in courts for
redress . Obviously of the dangers is taking away the individuals' right to sue or to make
, ir i informed choice not to take any action .

55
 •
..

Related· to these considerations is that it then beco mes imperat ive that the hun1a•1
person or group on humans whose rights are alleged to have been v1ol,:iled he ,rle'lt1f ei
with some particular ity. It is unlikely that an act ion tha · pfp rs to •t,p 1 ·, , 1r

would succeed . Even a "public " would have some classification as opposed t() t' ,
s general public . This is primary because , for the reasons we advance earlier, the public
in general , would encompass individuals who have adverse interest or might have take
informed decision not to take any action .

In any case human rights defenders wou ld invariably be taking up representat ive action.
10 It is a primary requirement in representative act ion that the group or groups being
represented be identifiable . It would not be in the interest of particular human beings
just as it is not to deal with cases whose litigants are at large , falling short of being
unknown .

15 The Commission of Inquiry

Finally , we should address the 1ssu1ngof the Commission of Inquiry further to the
observation that we have earlier made . Form 86A cited the Commission of Inquiry
Act. 39 1ndeed, the whole judicial review proceedings arise within the context of a
commission of inquiry appointed by the President under the Commission of Inquiry Act.
20 What is of concern is that going through the arguments by the Attorney General , is the
issue of non-binding nature of the commission of inquiry report .It was suggested by the
appellants that Commissions of Inquiry are not legally binding on Presidents or on
anybody and the public is still entitled to take action they may wish that contradicts the
findings of a Commission . Further , the appellants contended that the findings of a
25 Commission are not self-executing . Hence , even where one is found culpable of a
crime by a Commission or liable civilly , a criminal proceed ing or a civil suit will still have
to be taken to establish guilt or civil liability to finally settle the matter . As a matter of
fact, it was submitted that neither our Constitution nor Commissions of Inquiry Act talks
about the legal significance of a Commission of Inquiry 's findings .

39
Chapte r 18: 01
56
 •

We need to point out at the outset that if we adopt the position that a commission of
inquiry report cou ld be disregarded by the Presiden t it would be sad. If the inquiry
establishes a fact showing impropriety , a President , for reasons of good governance ,
cannot just ignore the findings and recommendations of the commission of inquiry . It
5 would be acting in bad faith if the President was toignore the findings and
recommendations of the commiss ion of inquiry.

Now turning to the issue of lack of impartiality or disqualification raised by the

respondents , this Court would like to comment as follows :

First, it is well to note that section 7 of the Commissions of Inquiry Act imposes a legal
10 duty of impartiality on Commissioners . Thus , this Court is not satisfied that an arguable
issue existed , in the absence of any evidence that Hon . George Chaponda intended to
interfere with the Commissioners . We also do not subscribe to the view that section 7 of
the Commissions of Inquiry Act imposed a duty on the State President to suspend him
pending the Commission of Inquiry findings in order to foster the impartiality of the
15 Commission . By accepting to serve on a commission of inquiry, the Commissioners
were under the obligation to comply with section 7 of the Commission of Inquiry . He
who alleges that a particular commission will compromise his duty must bring forth
reasonable grounds in support of such allegations . These are allegations that go to the
personal integrity of the commissioners which cannot be lightly accepted .

20 It would therefore be unreasonable for the court to be "satisfied " that there is, here , an
issue fit for further judicial inquiry on the facts and law as presented in Form 86A. This
Court holds the same view respecting the two Commissioners . As we said earlier , it
vvo u lcJ be stretching the imagination to say that any court could be "satisfied ",
considering the Com missioner 's duty of impartiality and the fact that none of them
25 worked directly under the Minister in question , to suggest that a "clearly arguable case"
had arisen or had been raised that the two would be impartial at the hearing. In sum , the
, "' ::.s0I's n f Inquiry Act does not disqualify any person working in the public service
c1 I·1c111u~I
or a Comm1ss1onof Inquiry.There Is no provision that says that public or
c1v1I servants canno t be appointed members of a Commission of Inquiry.

30

57
 •

The power of the Pres ident to issue a Commission of inqui ry emanates from section 8~
(g) of the Constitution . We wish to draw attention to section (2) (1) of the Comrn1ss1onr-f
Inquiry Act which authorizes the President to issue a Commission of Inquiry and
authorize it to inquire into any matter concerning public welfare . This section does not
5 limit the President in respect of whom he or she may appoint , whether fro m the public or
private sector . Second ly, as this Court understands it, aCommission of Inquiry once it
establishes a fact which points to irregularity or inappropr iate behav ior, the Preside nt
cannot proceed to ignore the findings . The President would be acting in bad faith if he
disregarded the findings of a Commission of Inquiry which he estab lished himself
10 through a statutory instrument. ltshouldfurther be appreciated that the powersof the
President to issue a Commission of Inquiry is not in substitution to the powers of any
state organ or agencies to investigate as we discuss earlier .

FINDINGS AND DETERM INATION AS WE LL AS CONCL USIONS OF THE APPEAL

15 For the reasons set out above , the appeal should succeed and leave for judici al review
is discharged. In summary and specifically we determine as follows :

First, it is the position of this Court that it is not court 's business to go as far as
suggesting who should be appointed , removed or suspended from the office of Minister .
We cannot force a cabinet Minister to resign from office as that is a political decision fo r
20 an individual Minister to make where the individual Minister is embroiled in a scandal.
Indeed , where a Minister qualified under Section 95 of the Constitutionto be put in
cabinet the Minister holds the office at the pleasure and displeasure of the President.
Apart from the displeasure of the President , theConstitution , in particular Section 95
thereof , provides for disqualifying factors that may lead to his or her removal. The
25 Minister will be removed if he or she doesnot qual ify in terms of this section .40 No judicial
act can be employed to remove a Minister from cabinet.

It is the finding of this Court that Commissioners Dr Banda and Mr Kayira were duly
lawfully appointed to the Commission of Inquiry.

40
See section 95 (3) of the Constitution.
58
 ..
•
It is finally the finding of this Court that all the respondents have not established
suffi cient factual basis to be accorded locus standi in this matter.

Therefore , the appeal herein succee ds on all grounds. It is hereby allowed while
discharging the grant of permission to apply for jud icial review made by the court a quo

5 on 12 January 2017.

ORDER

The appeal is allowed. The order of the court below is set aside. There was no arguable
case fit for judicial review . We alsowish to point that there was no resolution of trustees
put before Court to show that the Board of Trustees decided to take out the judicial
10 review proceedings . The costs should therefore be borne personally by Mr. Charles
Kajoloweka.We make an order for costs before this Court and the court below against

Mr Charles Kajoloweka.

DELIVERED in Open Court at the Supreme Court of Appeal , sitting at Lilongwe on 13

February2019.

15
Signed: ................................. ......... ............................ .
HONOURABLE CHIEF JUSTICE A.K.C. NYIRENDA SC

20 Signed: .................................................................... .
HONOURABLE JUSTICE E.B.TWEA SC, JA

Signed: .... .......... .......... ........ .... ............................... ..

HONOURABLE JUSTICE F.E. KAPANDA SC, JA

59