‘No prerogative powers in Malawi constitution’: Law expert says every Executive order is subject to judicial review
A constitutional law expert Edge Kanyongolo, who is lecturer at University of Malawi’s Chancellor College, has said every decision by the Executive is subject to review bu the courts if the society decided to challenge it.
Kanyongolo was commenting after High Court in Mzuzu sustained an injunction against Agriculture, Irrigation and Water Development Minister George Chaponda until investigations into the maizegate are concluded.
Attorney General Kalekeni Kaphale had argued that the court should vacate the order for leave for judicial review because the court does not have the power and authority to review Executive orders by the President.
He also prayed that the civil society organisations (CSOs) that obtained the injunction must be removed from the list of applicants.
But the court ruled that its the jurisidiction to handle the matter and that the CSOs must not be removed from the lists of applicants as they have “lucus standi” (sufficient interest) to seek for review of Executive decision.
In comments quoted in The Nation newspaper report on Wednesday, Kanyongolo agrees that every Executive decision is subject to court review, saying Malawi constitution has no “prerogative powers”.
“You remember in 2001 the court also reviewed a decision by the President to ban demonstrations and assemblies. That was reviewed, and it was declared unconstitutional.
“I think we use the word prerogative wrongly, because prerogative power is essentially unquestionable. We have no prerogative powers in the Constitution, but Executive powers of different kinds,” he explained.
Meanwhile, the three CSOs—Centre for the Development of People (Cedep), Church and Society of CCAP Livingstonia Synod as well as Youth and Society (YAS) havefiled contempt of court charges against suspended minister Chaponda at the High Court in Mzuzu.
The CSOs’ lawyer Wesley Mwafulirwa confirmed to have filed for a leave to proceed with committal proceedings for Chaponda.
The minister two weeks ago sneaked to Germany on alleged official duties which contravened the dictates of his injunction, hence the CSOs decision to drag him to court for contempt. He sneaked into the country last Wednesday through Chileka International Airport.
Mwafulirwa said the Judge is yet to set a date for the contempt of court matter.
He could not divulge details in the application.
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Kaphale with that distinction at your Masters degree graduation and you still fail to interpret the constitution? Komadi kokhonza kwambiri mkalasi kumachitika mdi zinthu zambiri eti including kuloweza basi. Kapena a Kaphale mwadya chi banzi?
..some kind of thinking by these so called lawyers is outright rubbish ! what the hell is prerogative power ! we demolished dictatorship for that very kind of stupid thinking !
WAGWA NAYO!!!
Dziwani ichi Mbuzi ikagunda galu zili bwino galu ikagunda kapena kuluma Mbuzi ndi yachiwewe. Prerogative does not apply when it is APM then it is not justice. Let us be consistent in our arguments or we contradict ourselves
Mr. Kaphale I respect you as one of the experienced lawyers in Malawi. But I am now starting to doubt your integrity by saying that no one can challenge executive orders.
Mr. Kaphale is well aware about the concept of separation of powers and should answer Malawians who is to check the executive in the event that evecutive makes unconstitutional orders. Abale inu!!!!!!!
Much as i very much agree with the rulling,the only problem i have now is Mr Kanyongolo,he’s contradicting his earlier statement on the same issue.Mr Kanyongolo is on record to have said the earlier rulling by His worship Judge Chirwa on the suspension of Dr Chaponda was highly unusual as that was tantamout to usurpation of executive powers by the Judiciary.Now look at what he is saying,should we say he has now woken up from slumber?
I am sure, he has now been schooled by other lawyers hence a u-turn. A Kaphale nawoso sakufuna kupanga face reality. Akutaya nthawi ku defenda mbavazi awa. Kungoononga ndalama za boma basi!
Dzina you are damn right. last time he said that he found the ruling strange and now he says something different
Has prof. Kanyongolo changed tune? Do you remember what he said when this relief was sought?
Koma abale
Ma Plof a ku Chirunga ndi a ganyu, olo lendi awa! Chimodzimodzi uja anathawira ku Cape Town – amati Danwood Chirwa uja. Ana asukule ofuna low ya mphamvu akutulukamo mukalasi yache!
Kaya anatha bwanji kulemba bukhu losilizira (thesis) pa Mastars olo PhD, thobvu mkamwa ndi m’mphuno? Kalanga ine! Koma ku Malawi kuno bvuto lizatha ngati? Ndi anthu ngati awa ma Plof osaganiza bwino chonchi! Tinalozedwa eti?
Mr attorney general should know that in our constitution even the president is not above the law. that why in 2014 him kalekeni kaphale rushed to court to seek a relief after president joyce banda ordered that she has nullified election results. if the president had that prerogative powers i believe that decision could have been valid. this kind of thinking by our so called learned people is the one destroying our democracy. they think they are above the law. executive decision can be reviewed by courts..
you really hav a point yah…