What’s all this fuss about Judicial Review in Malawi maizegate? — Law scholar Madise

In the past days, social media has been abuzz with the matter before the Mzuzu High Court. Now the purpose of this article is not to discuss the Maizegate or the merits of the matter before the Court. This article is aimed at clarifying some of the issues around the matter before the Court.

Judicial Review

Judicial Review is a type of a “court proceeding, in which a judge reviews the lawfulness of a decision or action or failure to act, by a public body exercising a public function.” Put simply, in Judicial Review proceedings, the State calls upon one of its organs [Respondent(s)] to answer to some ‘complaint’ that a member of the public or some other body has made. Judicial Review is a way of supervising “the administrative decision making” process.

Procedurally, the Applicants must first be permitted to bring an application for Judicial Review. The legal term is called granting leave. The Court can refuse to grant leave where it considers that the application is vexatious, frivolous or raises no arguable or triable issues. The purpose of this process is to weed out claims of this type. On the grant of leave, the Court may also grant the interim reliefs that have been asked for. An injunction is one such interim relief.

Now the grant of any interim relief is always discretionary. It is up to the Applicants to convince the Courts at face value (prima facie) that it is in the interest of justice to grant such a relief. Now the term interest of justice is interesting. In a case, the ‘winning’ celebrates saying the interest of justice has been served while the losing side laments that the interest of justice has not been served. How is it then possible that in the same one case, justice can both be served and not served? The answer lies in difference between justice and justice according to law. In determining an issue, the Court applies the law to the facts. That is what the process of judicial adjudication can be simplified to.

The State v Chaponda and others Ex Parte Kajoloweka and others
In this matter Mr Kajoloweka and others applied for Judicial Review in a matter which the Minister of Agriculture George Chaponda, the Attorney General and the President are Respondents. Leave was granted and an injunction Order was also granted. The Order restrains Dr Chaponda from discharging his duties as a Cabinet Minister until the finalisation of the investigations by the Commission of Inquiry. It further warned that any person who disobeyed the Order risks being guilty of Contempt of Court. It also gave the Respondents the right to vacate or vary the order provided they gave the Applicants 48-hours’ notice. The Respondents, through the Attorney General filed an application to vacate the leave granted.

They argued that:
(a) The Court does not have jurisdiction to conduct Judicial Review in this matter
(b) The Application by the Applicants does not disclose an arguable case or serious questions fit for further inquiry at Judiciary review hearing.

It must be noted that the Respondents did not apply to vacate the injunction, but vacation of leave. If this argument were to be successful, the Application for Judicial Review would be thrown out wholesale. There would therefore be no injunction needed to be vacated. It has since transpired that the Court has sustained the grant of leave for Judicial Review as well as the injunction. This means the injunction still subsists (exists) and that Dr Chaponda is restrained from discharging his duties as a Cabinet Minister until the finalisation of the investigations by a Commission of Inquiry.

The issue of the Restraining order has attracted a lot of debate, some of it acrimonious. Has the Court in effect suspended the Minister, something it does not have jurisdiction to do. A restraint order is a preventative order. It does not dismiss or suspend him as a Minister. He remains a Cabinet Minister but is prevented from discharging his duties during that time.

But, what is a suspension? It is an act of temporality removing a person from office or privileges. So there is a difference between restraining and suspending but is there a substantial difference? I would argue that in practical terms there no difference. In my view, when the Court issued the restraining order, it is in fact also suspended the Minister. Should he have been suspended? Does the Court have the power to suspend him? That are matters which the Court will have to adjudicate on and we can only await the judgement after a full hearing. For now, he is suspended. That is the law.

Conclusion

In summary Judicial Review is concerned with, not the merits, but the decision-making process itself. In the State v Chaponda Ex Parte Kajoloweka, we cannot say whether the decision, action or inaction of the Respondents is unlawful. This is for the Court to eventually decide. We cannot also say whether or not the Court has jurisdiction over this matter. That also is for the Court to decide. What happens to Dr Chaponda in the meantime? Well unless the order is varied, he remains restrained or put plainly, suspended. This is an avenue that no one in Malaŵi has travelled before. We are all learning from the experience and look forward to the precedence that the Court will set out in the end. For now, at least this can be said, the term no-one is above the law is starting to have some meaning.

• This is an abridged version. For the full article visit: http://sunduzwayo.blogspot.com/2017/01/whats-all-this-fuss-about-judicial.html

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