Case note: Jessie Kabwila V Malawi Electoral Commission

On the 4th day of April 2014, Justice Dunstain Mwaungulu released a decision in the above matter insisted that it is not a judgement but “directions”. However the Court did not just give directions but gave a well-reasoned judgement and in doing so rekindling the debate whether Nseula and Kachere are good law.

To start with Judge Mwaungulu has not disappointed. The decision was long awaited and was worth reading, of course with Google permanently on standby and online dictionaries frequently consulted. Vintage Mwaungulu! This was not just a decision about the candidacy of one Dr Jessie Kabwila, ‘firebrand human rights activist’ whose decision to ‘rather than influence government policy and action from an interest or a pressure group, decided to be involved in government directly by running for public office’ has not escaped the notice of the Court.

Justice Dunstan Mwaungulu :  Delivered his determination on  the matter

Justice Dunstan Mwaungulu : Delivered his determination on the matter

The Judge holds that Dr Kabwila is a civil servant and would have been caught by section 51(2) of the Constitution but for the fact that she had obtained leave of absence. I find his reasoning in bypassing the hurdle using the leave of absence route ingenious and progressive but I disagree strongly with his holding and his reasoning that Dr Jessie Kabwila or indeed any worker in a public university and other such institutions are civil servants.

The Judge kinds of summarises the whole decision under “Introduction” and ends up by emphatically concluding that ‘the Electoral Commission and all sundry should regard this direction as final and there is no right of appeal against it to the Supreme Court of Appeal.’

There has been some debate whether a provision that limits one’s right of appeal to the ultimate or apex court is constitutional, but that may be a debate for another date. Suffice to say, I for one, view this limitation as wanting and worthy challenging.

The High Court (HC) by its nature cannot be the final court of appeal in [some] matters where there is a higher court. And since the decision does more than just give directions, one may argue that even if the provision making the HC the final arbiter were to be upheld, this would only relate to the giving of directions (whether to accept or reject a candidate) but the other parts of the decision would in my view be fair legal game for adjudication because they raise other issues other than the simple question of whether to accept or reject.

The Judge also opens old wounds. He discusses the Malawi Supreme Court (MSCA) decisions in The President v Kachere and Nseula v Attorney General and concludes that these decisions are per incuriam, or in lay speak, they are wrong in law and should not be followed. From the evidence that he has presented all I can say is Q.E.D!

CONCLUSION

The decision of Kabwila v EC is a good contribution to legal debate and legal discourse as well as the shaping of our jurisprudence. The decision gives directions to the EC but does more than that.

Judge Mwaungulu has through this decision ably demonstrated that the decisions of the MSCA

in Kachere and Nseula are per incuriam. It is a view that he has long held, but this is the first time that he has been able to lay it down in a judicial statement for all to see and take note.

There was a section of the legal fraternity which held that Kachere and Nseula were decided  for political expediency and were wrong (recall the Press Trust case saga?) Indeed the MSCA has sometimes come under criticism for attempting to be politically correct in some of its  decisions. Nseula and the Press Trust case are some of these decisions. Amongst the legal fraternity, there is general agreement the Press Trust case as decided in the MSCA is bad law.

Maybe with time, the same fate will befall Nseula.

But the definition of public officer is still at large!

 

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