Malawi’s High Court snubs DPP on Section 65

The High Court in Mzuzu has ruled that the Democratic Progressive Party (DPP) cannot answer for a public authority whether as amicus curie (literally a friend of the court or under any status at law), saying their interest is therefore insufficient in that regard.

Judge Dingiswayo Madise made the ruling on Tuesday in a case in which Mzimba Solola MP Patrick Mwanza and six others sought leave to move for judicial review against the decision of the Speaker of the National Assembly to call for fresh evidence from the DPP in a matter where the former ruling party had petitioned the Speaker to invoke the anti-defection law section 65 of the Republican Constitution against them.

The DPP wanted to “join” the Speaker in opposing the motion for judicial review.

Kaphale: Represented DPP in the matter

Judicial Review is the most effective means by which courts control administrative actions by public bodies. (Including inferior courts and tribunals).  It is a supervisory jurisdiction which reviews administrative action rather than being an appellate jurisdiction.

Mwanza and six others alleged in their affidavits that the Speaker had made a determination and was not supposed to call for fresh evidence. 

But the DPP through their lawyer Kalekeni Kaphale prayed to Court to be allowed to be heard as a friend of the court arguing that the DPP had sufficient interest to be granted leave to be heard.

However, the applicants’ lawyer Victor Gondwe opposed the application on the premises that the Attorney General was the legal representative of the Speaker as a public authority and that the DPP had not shown sufficient interest for them to be granted the Amicus curie status.

Mr. S. Kayuni representing the Attorney General concurred with Gondwe that the Attorney General was very able to represent the Speaker and there was no need to invite other non public bodies to be granted leave to make submissions in a judicial review matter.

But Kaphale insisted that that the DPP was not joining the proceedings but simply wanted to be heard as a petitioner in the section 65 matter.

In his nine pages judgement Judge Dingiswayo Madise noted that the DPP does not want to join these proceedings but simply want to be heard as Amicus curie as a petitioner who moved the Speaker to invoke section 65 of the Republican Constitution against the Applicants.

“They simply want to be heard claiming that they are directly affected by the outcome of the case. The Applicants think differently,” Madise said.

Madise said in his view the public body is the Speaker whose legal representative is the Attorney General.

“There has not been presented before this Court any evidence to suggest that the Attorney General will not represent the Speaker or that if they represented the Speaker no greater effort will be attached to the case as to suggest an unholy alliance between the Applicants and the Attorney General to rape the provisions of the law,” he said.

The Judge also noted that there is no dispute that the DPP like most Malawians have a vested interest in the outcome of this case as well as the petitions the Party presented to the Speaker of Parliament.

“The question before me is whether the DPP has sufficient interest to be allowed to be heard as an amicus curie in a judicial review matter. Will their presence add any value to the proper determination of this matter?

“Will the Court benefit from their brief as to suggest that their absence will greatly affect the final outcome and that the Court may fail to determine all the questions and issues before it adequately?

“I fail to see how allowing the DPP as a private person to be heard as amicus curie in a public law content will add any value to the administration of justice in this matter.  The Speaker of Parliament will be present to answer for himself and he will be represented by the able office of the Attorney General,” Madise said.

He then directed that hearing of the interpartes summons for the continuation or discharge of the order of injunction must be heard within 21 days.

“Leave to appeal is hereby granted should the DPP wish to seek the views of the most senior bench,” Madise said.

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