1
VIRTUAL RESEARCH ASSISTANT PROJECT
Research brief provided:
Memorandum on Separation of Powers doctrine in Malawi
COUNTRY
Malawi
DATE COMPLETED
15 August 2014
INTRODUCTION
From the end of the Second World War in 1945, States have increasingly evolved in the way
and manner political power is vested and wielded, towards the democratisation of their public
institutions. This shift has for one, been precipitated by the resolution of the committee of
nations that never again will the world allow absolute power to be wielded by a few and as a
result, cause the wide spread damage to life and property that was seen in WWII.1 Another
important factor that as being played out in recent times is the sweeping spread of the desire of
citizens in various states to be self-determinant and no longer be ruled on the whims of their
erstwhile absolute leaders.2 This in turn has led to an increase in democratic governments in
various parts of the globe.
1
Universal Declaration of Human Rights, GA res. 217A (III), UN Doc A/810 at 71 (1948).
2
The events of the Arab spring which began in December 2010 saw the toppling of the authoritarian regimes in
Tunisia, Egypt, Yemen and Libya . Also, the 1990’s saw the shift of a number of African countries to multi-party
democracy. Examples are South Africa in 1994, Malawi in 1994, Nigeria in 1999.
2
Democracy offers first and foremost the chance for citizens to choose their leaders. Secondly,
as a check to the powers vested in the elected officials, there is the enshrining of the doctrines
of rule of law and separation of powers. As noted by Sang, the idea behind the doctrine of
separation of powers is that a concentration of too much power in a single entity will lead to
the abuse of power.3 The doctrine of separation of powers as posited by Montesquieu4 and
John Locke5 embodies a number of principles, first off which is that in order to adequately
balance power, there has to be a formal distinction between the legislative, executive and
judicial branches of government.6 The second principle is that the separation of power also
includes the separation of functions which means that each branch of government exercises
distinct roles and duties.7 The third principle, is that of separation of personnel, which requires
that each of the different branches be staffed with different officials. 8 Lastly, the separation of
powers doctrine more importantly entails the principle of checks and balances where each
branch of government is entrusted with special powers designed to keep a check on the
exercise of the functions of others.9 While the dynamics of the composition and powers of each
branch of government varies from State to State, there is the general trend which permits each
branch to check the powers of another branch of government and occasionally intrude into the
functions of other branches of government.10
3
Oscar Sang, ‘The separation of powers and new judicial power: how the South African constitutional court plotted
its course’, (2003)Elsa Malta Law Review 3.
4
Baron de Montesquieu, “The Spirit of the Laws”, (first published 1750, Thomas Nugent Sr, Hafner
Publishing Co. 1949) bk 11, chs 6 -20.
5
John Locke, “Two Treatises of Government”, (first published in 1690, Peter Laslett ed, Cambridge
University Press 1988) 366-67.
6
Pieter Labuschagne, ‘The Doctrine of Separation of Powers and Its Application in South Africa’
(2004) 23 Politeia 87.
7
Ibid.
8
Ibid.
9
ibid
10
Nicholas W Barber, ‘Prelude to the Separation of Powers’ (2001) 60 Cambridge Law Journal 59, 60.
3
As a result, more often than not, while the legislature for example, checks the executive
through reserving the power to impeach a President, the executive on the other hand checks
the legislature through presidential assent to make a bill into law and veto power to overrule
laws. The judiciary on its part checks the executive and legislature through its power of review
and the executive and legislature check the judiciary through determining the appointment of
the members of the judiciary.11 This cycle of checks and balances ensures that every arm is
accountable to another and as such is limited in the exercise of its power.
While this is the general trend of checks and balances, there is need to specifically examine the
role of the judiciary and how it fulfils its own duties and checks the powers of the other arms of
government.
THE ROLE OF THE JUDICIARY IN A DEMOCRATIC SYSTEM OF GOVERNANCE UNDER THE
DOCTRINE OF SEPERATION OF POWERS
The new constitutions of many fledgling democracies were enacted as a result of the loss of
confidence by the people in the elected arms of government.12 Therefore, in the new
constitutions of these countries it became incumbent upon the judiciary to rectify the wrongs
of the old systems of governance.13 It is largely for this reason that courts under many new
constitutional democracies occupy a privileged place of being the protectors of the
constitutions of their States.14
The judiciary in Malawi finds itself occupying this unique position also, as it has been saddled
with the hallowed task of exercising jurisdiction over all issues of judicial nature along with the
exclusive authority to decide whether any issue is within its competence;15 which it shall
11
Sebastian Seedorf & Sanele Sibanda, ‘Separation of Powers’, in Stu Woolman, Theunis Roux,
Jonathan Klaaren, Anthony Stein, Matthew Chaskalson & Michael Bishop (eds) Constitutional Law of
South Africa (2nd Edition, OS, March 2008) Chapter 12, 12-6.
12
Op cit Sang (n3) 1.
13
Ibid.
14
Ibid.
15
Section 103(2), Republic of Malawi (Constitution) Act, No 38 of 1998. See also Section 9 of the constitution.
4
exercise, independent of influence and direction of any person or authority.16 In line with this
directive, the judiciary has sought to be involved in the politics of states,17 more engaged with
the issues brought before it and more proactive in its determination of issues and its use of
judicial review to check the activities of other branches of government.18 This has however led
to the judiciary in Malawi as with other judiciaries across the world to come under heavy
attack. Critics have posited that judges are unelected and therefore cannot purport to
substitute their interpretations of the constitution for those of the elected legislature as it is
undemocratic, noting that the legislature and the executive, unlike the judiciary, is directly
accountable to the electorate.19 They further stress that the role of the judiciary is not to
undermine the policies of any democratically elected government,20 and that the propensity for
the judiciary to be activist21 in its outlook can be abused by politicians and civil society actors to
win political battles.22
The term judicial activism has become a common parlance with two distinct meanings, often
depending on who is using it and in the context it is being used. On the one hand, it has
assumed a somewhat derogatory meaning when being used by politicians, interest groups and
other actors in the public sphere to refer to judicial decisions which strike down actions by
other arms of government.23 On the other hand it has been used as legalese to describe
situations where the judiciary has departed from precedence to create new authority on an
issue.24 This is viewed as a positive step by some who envision the law as constantly evolving
16
Section 103(1), Republic of Malawi (Constitution) Act, No 38 of 1998. See also Section 9 of the constitution.
17
Dennis Davis, Democracy and Deliberation (Juta & Co. Ltd 1999) 47.
18
Ibid.
19
Op cit Sang (n3) 1.
20
Ibid.
21
Shannon Smithey and John Ishiyama, ‘Judicial Activism in Post-Communist Politics’ (2002) 36 Law & Society
Review 719.
22
Ibid.
23
Op cit Sang (n3) 1.
24
Ibid.
5
and as such should not be bound to old rules which may either have been based on previously
faulty reasoning or are no longer in tune with the realities of the times.25
It is therefore imperative to fully examine the role of the judiciary in Malawi vis-à-vis other arms
of the government in order to help it avoid situations where it errs and oversteps while at the
same empowering it to explore its authority to the full and play its role in the democratic
process optimally. For as Albie Sachs, J stated, ‘excessive judicial adventurism could be as
damaging as excessive judicial timidity’.26
As a starting point, the relevant provisions of the constitution which offer guidance on the role
of the judiciary will be espoused in order to determine the extent and ambit of the judiciary’s
power in Malawi. Then case law in Malawi dealing with separation of powers, judicial review
and judicial law making will be examined to inquire into the current path the judiciary is taking
with regards to its interface with other arms of government and whether or not there is need
for any adjustments in its outlook. In order to reach such a determination, this paper will also
examine global trends on the evolving role of the judiciary, with a look at England, the United
States of America and South Africa and with a view to helping the judiciary in Malawi better
understand its role and act accordingly. The paper will conclude with an exposition on the
possible pitfalls the judiciary must strive to avoid, along with ways in which the judiciary can
more effectively function as a vibrant arm of government.
THE CONSTITUTION OF MALAWI AND THE ROLE OF THE JUDICIARY
Under the current model of democratic rule in Malawi, there are three distinct arms of
government; the executive, the legislature and the judiciary.27 In a bid to avoid undue friction
between the arms of government, the Constitution of Malawi has provided expressly for the
25
Ibid.
26
Sang quoting Sachs J in Prince v President, Cape Law Society & Others [2002] (2) SA 794 (CC) [155]-[156].
27
Sections 7, 8 and 9 of the Constitution provide for the separate status, function and duties of the executive,
legislature and judiciary respectively. Republic of Malawi (Constitution) Act, No 38 of 1998.
6
nature, composition and powers of all three arms of government in three separate chapters.28
This distinction in duties, composition and status of the three arms of government is
sacrosanct, as it is provided for in the constitution. Any attempts to modify the set up as
provided by the constitution is a nullity; as Section 5 of the Constitution provides that
“Any act of government or any law that is inconsistent with the provisions of this
constitution shall to the extent of such inconsistency, be invalid”. 29
As such the judiciary is both empowered and limited by the provisions of the constitution with
regard how and in what manner it exercises its duties.
Section 9 of the constitution states that;
“The judiciary shall have the responsibility of interpreting, protecting and enforcing this
Constitution and all laws and in accordance with this Constitution30 in an independent
and impartial manner with regard only to legally relevant facts and the prescriptions of
law”.31
As an amplification of this responsibility, Section 103 of the Constitution provides that
“The judiciary shall have jurisdiction over all issues of judicial nature and shall have
exclusive jurisdiction to decide whether an issue is within its competence32”.33
The above sections expressly state that the primarily role of the judiciary is to interpret the
constitution and other laws of the land and to protect and enforce34 the said provisions based
28
The legislature is provided for in Chapter 6, and the executive is provided for in Chapter 8 while the judicature is
provided for in Chapter 9 of the Constitution. Republic of Malawi (Constitution) Act, No 38 of 1998.
29
Section 5, Republic of Malawi (Constitution) Act, No 38 of 1998.
30
Emphasis mine.
31
Section 9, Republic of Malawi (Constitution) Act, No 38 of 1998.
32
Emphasis mine.
33
Section 103, Republic of Malawi (Constitution) Act, No 38 of 1998.
34
Emphasis mine. It is important to note that the mandate requisite in enforcement goes beyond merely
interpreting statutes and more often than not will require active participation.
7
on the facts of issues brought before it. In a bid to do this, it is empowered to assume
jurisdiction over any issue, so long as it is a judicial issue brought before it for its adjudication.
By the import of this, the judiciary is limited in its scope, to legal issues brought before it for
adjudication, as such it cannot of its own, be adventurist and suo moto institute a case before
itself and proceed to pass judgment on it. This is a cardinal tenet in the determination of the
court’s powers. This is because the decisions of the judiciary are final and binding; hence such
power is limited to cases where parties have subjected their autonomy in the specific matters
to the court to decide on, by approaching the courts. The courts cannot assume power to
adjudicate and give final judgment where no such power has been given to it by parties and any
such action by the court would amount to judicial dictatorship.
While the judiciary is limited to matters brought before it, there is little or no limit to the kind of
issues that can be brought before it, as long as the issues before it have legal relevance. As
such, the court is empowered to assume jurisdiction over any matter brought before it by any
parties. This kind of power given to the judiciary is sweeping in its ambit and it is imperative to
inquire into the reasoning of the drafters of the constitution in order to better appreciate the
necessity for the scope of such judicial power.
At the time of the creation of the current constitution of Malawi, there were fears that if
proper safeguards were not created, the Constitution itself would be in danger of being
perverted and distorted by the government that would be in power. 35 The Constitution
therefore created an independent and impartial judiciary.36 Historically, the judiciary was
muzzled and unable to adequately uphold the constitution and the rights of citizens. 37 By virtue
of this, the issue of separation of powers and the independence of the judiciary played an
important role in the discussions leading up to the drafting of the new constitution. 38 The era
35
Jane Mayemu Ansah, ‘The 1994 Malawi Constitution and the role of the judiciary’, Paper presented at The First
National Conference on Review of the Constitution Held at the Capital Hotel, Lilongwe, Malawi 28th –31sth March
2006. Available at http://www.sdnp.org.mw/lawcom/docs/roleofjudiciary.pdf, accessed on 1 August 2014.
36
Ibid.
37
Ibid.
38
Ibid.
8
where the judiciary was precluded from hearing matters brought before it because it would
‘rock the boat’ and affect the unchallenged will of the executive and legislature were sought to
be emphatically brought to an end. Also the impunity exhibited in the appointment and tenure
of judges prior to 1994 was sought to be remedied in order to ensure administration of justice
devoid of fear or favour.39 The new constitution thus gave the judiciary exclusive arbiter powers
and the rights and in fact duty to decide whether or not any action by any party is in conformity
with the laws and the constitution and to render such action null and void if seen to not be so
compliant.40 The backdrop of the powers of the judiciary in Malawi is therefore such that the
judiciary is to no longer be limited in the administration of its duties.
Evidently, the new and expansive powers of the judiciary come as both a backlash to and a
safeguard against previous impunity by other arms of government which stifled the judiciary in
the administration of its duties. Consequently, under the new dispensation of equality of all the
arms of government and the realisation of a more independent judiciary, there has been a
greater tendency for friction between the judiciary and other arms of government. 41 There
have been allegations that the judiciary oversteps its mandates and is overly intrusive in the
affairs of other arms of government. This increasing discomfort in the other arms of
government and seeming uncertainty in the judiciary call for an examination of the actions of
the judiciary thus far to enquire whether indeed the judiciary has overstepped its bounds or
there is simply not an apt enough understanding of the powers of the judiciary under the new
constitution.
DECISIONS OF THE JUDICIARY THAT HAVE REQIRED AN INTERVENTION INTO THE POWERS AND
ACTIONS OF OTHER ARMS OF GOVERNMENT, POST THE 1994 CONSTITUTION.
Through the 1994 constitution, the judiciary has been assigned as the watchdog and protector
of the Constitution.42 However in the exercise of this sacred duty, the court is limited to the
39
Ibid.
40
Ibid.
41
Ibid.
42
Section 9, Republic of Malawi (Constitution) Act, No 38 of 1998.
9
cases brought before it for adjudication. In essence the court can only be moved to act by
litigants;43 and the fact that Malawi confronts the challenges of high levels of poverty and
illiteracy greatly hamper the practical application of the court’s powers.
Nevertheless, one paramount duty the courts have been given in the exercise of its duties, is
that of judicial review, and it is the mechanism through which the courts can adjudicate on the
actions of the other arms of government and subsequently bring such actions in conformity
with the constitution when they err. Section 108 of the Constitution provides that
“The High Court shall have original jurisdiction to review any law, and any action
or decision of the Government, for conformity with this Constitution,44 save as
otherwise provided by this Constitution and shall have such other jurisdiction
and powers as may be conferred on it by this Constitution or any other law”. 45
This power of judicial review is with regard to any46 law or action of any arm of government.
The courts have exercised this power of judicial review in a number of cases and laid
precedence on how this power is to be used. In the case of Kalumo v. Attorney-General
47
the
high court stated that judicial review is apt and required where a public authority has acted
without jurisdiction or exceeds its jurisdiction.48 It also stated that the process of judicial review
is not concerned with the merits of an action, but it is rather concerned with the procedure that
birthed such action or decision (with some exceptions).49 These principles are important, in that
they limit the scope of judicial review to the determination of due process and are not
necessarily concerned with substantive actions or decisions. As such, the judiciary cannot
43
Op sit Ansa (n35) pg 5.
44
Emphasis Mine.
45
Section 108, Republic of Malawi (Constitution) Act, No 38 of 1998.
46
Emphasis mine.
47
Kalumo v. Attorney-General [1995] MLR 669.
48
Ibid.
49
In the instant case, the court also found that the actual decision taken by the Army Commander lacked merit and
was not in the public interest. It stated that the rules of natural justice must be complied with when making
decisions. Ibid.
10
review an action, policy or decision of another arm of government merely because it is
uncomfortable with such a decision, as long as it is well within the rights of that body to take
such a step and it does not occasion an injustice or breach of the constitution.50
In the case of Chioza v Governors of Marymount Secondary School51 the court stated
importantly that while the relief of judicial review can only be against a public body and not
against the actions of private bodies, the actions of private bodies may be made subject to
judicial review when they perform such duties that are in the public domain, such as the
admission and expulsion of pupils.52 This exposition by the court is important in that it is an
indication of the intent of the relief of judicial review to remedy any possible injustices
wherever they may occur in decision making as opposed to being a tool intended by the
judiciary to specifically witch hunt and second guess the actions of other arms of government.
In Attorney-General v Lunguzi and another,53 the court stated unequivocally that the actions of
the President were subject to review and could in fact be declared unconstitutional if and when
they ran contrary to the provisions of the constitution. This practical application of the powers
of the judiciary to limit the excesses of the president served to justify the inclusion of the right
to make judicial review in the constitution. Importantly also, this case involved another high
powered official under the executive arm, in the person of the Inspector-General of Police, thus
reinforcing the principle that the relief of judicial review is for serving the cause of justice and
not for pitting various organs of government against each other. In addition, the nature of the
case gives voice to the intent of the constitution to ensure the dispassionate dispensation of
justice regardless of the politics underlining the issues brought before it.
The courts have also stated that judicial review cannot be applied retrospectively54 as this will
occasion injustice and is in fact contrary to the principles of fair hearing enshrined in the
50
Ibid.
51
Chioza v Governors of Marymount Secondary School [1996] MLR 109.
52
Ibid.
53
Attorney-General v Lunguzi and another [1996] MLR 8.
54
Zaibula v Council of University of Malawi, [1997] 1 MLR 356
11
constitution.55 According to the court in Chawani v The Attorney-General 56parties seeking the
relief of judicial review must make applications for this within three months of the making of
the decision for which they seek review. This is logical so as to prevent the actions of the court
from being an unnecessary clog in the wheels of the state and in extreme situations a wanton
backtrack and distraction, preventing organs of the state from performing their duties. This
being further indication of the fact that the intent and usage of judicial review is not one meant
to hound other offices of the state.
However, despite the outcomes and judicial reasoning in the above cases, the new found
power of judicial review wielded by the judiciary has been met by stiff opposition by other arms
of government, especially the legislature, who have opined that the actions of an elected body
should not be subjected to examination and limitation by an unelected institution.57 The
seeming conflict was played out in the case of Malawi Congress Party and Others vs The
Attorney General and The Speaker of National Assembly( Press trust case),58 where the court
held that the Press Trust Reconstruction Act was in contravention of the Constitution. Also this
occurred in the case of the Registered Trustees of the Public Affairs Committee and the AG, The
Speaker of National Assembly,59 where a proposed amendment to Section 65 of the
Constitution which deals with crossing floors was declared unconstitutional, null and void. As
was the action of the Speaker of the National Assembly declared unconstitutional in the case of
Nseula v Attorney-General and another,60 where the court stated that there is no defence to an
unconstitutional action; going even further to reaffirm the constitution as the grund norm and
superior to all other laws or institutions. This caused much disaffection with the judiciary, in the
55
Section 42(2)(vi), Republic of Malawi (Constitution) Act, No 38 of 1998.
56
Chawani v The Attorney-General [2000-2001] MLR 77.
57
The State and The Speaker of National Assembly ex-parte Mary Nangwale. Misc civil cause No. 14 of 2005
(Lilongwe District Registry).
58
Malawi Congress Party and Others vs The Attorney General and The Speaker of National Assembly civil case nos.
2074 of 1995 and 1861 0f 2003.
59
The Registered Trustees of the Public Affairs Committee and the AG, The Speaker of National Assembly, Civil
case no. 1861 0f 2003
60
Nseula v Attorney-General and another [1997] 2 MLR 294.
12
legislature. While the often made criticism by the legislature of lack of direct accountability to
the electorate by the judiciary may be true, it does not necessarily imply that the judiciary is
unaccountable to no one. For one, it is accountable to the legislature who through the
appointment of judges has the opportunity to filter the right candidates to the highest judicial
office.61 In addition to this, the judiciary has self-regulatory mechanisms which make judicial
officers accountable to the profession.62 So while it may appear to the legislature that the
judiciary ordinarily has no authority to question the actions of another arm of government, it
can and should point out when and where it has erred in line with the constitution.
While, it would seem that the actions of the judiciary with regards to judicial review and respect
of the doctrine of separation of powers have been up to par and in conformity with the
constitution, the relentless agitations of the other arms of government is cause to inquire into
the practices of other democracies, both established and fledging, in order to juxtapose with
that of Malawi and come to an assessment of whether or not the judiciary in Malawi has
indeed begun to overstep its mandate under the new democratic dispensation.
THE PRACTICAL APPLICATION OF THE DOCTRINE OF SEPERATION OF POWERS AND THE USE OF
JUDICIAL REVIEW INTERNATIONALLY.
United Kingdom
The doctrines of common law as applied in Malawi have a strong reliance on the legal practices
in England. As such, it is of great benefit to examine the practices there and how they bear any
similarities or discrepancies with what is obtainable in Malawi.
The United Kingdom has a largely unwritten constitution, meaning that many of its doctrines
and practices are not necessarily codified. This is particularly true of the doctrine of separation
of powers which while not codified is implicit in the structure of government and the practices
of the state. The dimension of separation of powers is somewhat different in the UK where the
61
Section 111(1), Republic of Malawi (Constitution) Act, No 38 of 1998.
62
Section 111(2) and (3), Section 112, Section 116, Section 117, and Section 118, Republic of Malawi (Constitution)
Act, No 38 of 1998.
13
executive is at the heart of Parliament.63 In addition to this, the office of Lord Chancellor had for
a very long time been a peculiar position, in that the Lord Chancellor both served as head of the
Judiciary and Speaker of the House of Lords.64 This meant that his functions branched into all
three arms of government. With this unique position, the position the erstwhile head of the
judiciary occupied posed a threat to the independence of the judiciary. However, the case of
McGonnell v United Kingdom65 reaffirmed the requirements for independence and impartiality
of the judiciary. None the less, the various flaws in the structure of the arms of the state led to
the systematic reform of the UK constitution, to guard separation of powers principles and
make amendments to the previously sacrosanct doctrine of Parliamentary sovereignty, through
the Constitution Reform Act 2005.66 Under this act, the Secretary-of-State now heads a new
Department for Constitutional Affairs and has assumed many of the Lord Chancellor's duties.67
The role of the head of judiciary is now held by the Lord Chief justice.68 The new Supreme Court
replaced the Appellate Committee of the House of Lords which is now separate from
Parliament;69 as a further guard to the infringement of the separation of powers symbolised by
the Lords in Parliament's second chamber. The Lord Chancellor also seized to be a judge or
Speaker, but retained limited roles in the judiciary which include involvement in judicial
appointments and judicial discipline. The Act also created a new system for judicial
appointments, which reinforces judicial independence.70
While the Constitution Reform Act mainly concentrates on further institutional separation of
powers; the constitutional roles of the 3 branches of government themselves remain
63
The Executive is headed by the Prime Minister who is the leader of the party with the most seats in Parliament.
64
Yuen Kit Kuan, ‘The Ultimate Ruling Principle of the British Constitution?’, The Student Journal of Law, available
at http://www.sjol.co.uk/issue-5/the-ultimate-ruling-principle-of-the-british-constitution#_ftn22, accessed on 30
July 2014.
65
Ibid.
66
Constitutional Reform Act 2005 c 4
67
Ibid.
68
Ibid.
69
Ibid.
70
Section 61, Constitutional Reform Act 2005
14
untouched.71 The courts have expressed the authority of the judiciary to judicially review an act
of the executive as in the case of M v Home Office72 where it was stated that judicial review
cannot be against the Crown, but that however, a minister or officer acting on behalf of the
Crown is subject to judicial review. The power of judicial review does not extend to the ability
of the court to query the validity of legislation as seen in British Railways Board v Pickin,73
although the courts varied slightly from this position in R v R74 by ignoring a word in an Act of
Parliament in order to yield a different meaning.
It must be noted that while the judiciary is limited in its functions to simply interpreting
legislation enacted by Parliament, the use of the legal interpretative tool of the golden rule
where the courts interpret legislation in a way to prevent manifest absurdity from occurring in
practice, helps the courts decide the text’s meaning and thus the final effect of legislation.75 In
addition to this, when interpreting an ambiguous statutory provision, there is a strong
presumption that the substantive rule of law applies.76 Although upholding the rule of law is
limited in that it cannot provide protection for a right or freedom which legislation does not
grant as a specific legal right,77 it can however override parliamentary sovereignty as the courts’
interpretations can effectively alter Parliament’s legislative intentions.78 According to the House
of Lords in Council of Civil Service Union and others v Minister for the Civil Service79 judicial
review can be grounded on illegality, irrationality and procedural impropriety.80 The courts
71
Yuen Kit Kuan, ‘The Ultimate Ruling Principle of the British Constitution?’, The Student Journal of Law, available
at http://www.sjol.co.uk/issue-5/the-ultimate-ruling-principle-of-the-british-constitution#_ftn22, accessed on 30
July 2014.
72
M V Home Office [1993] WLR 433 (HL)
73
British Railways Board v Pickin [1972] AC 765 (HL)
74
R v R [1992] 1 AC 599
75
Op cit Kuan (n70) 9.
76
Ibid.
77
Malone v Metropolitan Police Commissioner [1980] QB 49
78
Op cit Kuan (n70) 9.
79
Council of Civil Service Union and others v Minister for the Civil Service [1984] 3 All ER 935 (HL)
80
727 per Lord Diplock, ibid.
15
decide whether a public body’s action or decision was illegal and whether it was acting ultra
vires and if found to so be, the courts can issue prohibiting orders to prevent the public body
from proceeding further with their actions or decisions that are deemed void.81 This is the
Wednesbury unreasonableness test82 where the court will only interfere with the decision of a
public authority where it was so unreasonable that no reasonable authority could ever have
come to it.
As can be seen from the example of the UK, it is not uncommon for the judiciary to be able to
assess the nature and application of the powers of other arms of government. This position it
plays because it is strategically placed as the arbiter between the organs of the state and the
state and the people. While the courts in the UK are not quick to jettison their legacy of
Parliamentary sovereignty, parliament and other parastatals are not simply permitted to act as
they please, as they are still held up to the scrutiny of judicial review.
The United States of America
Perhaps the closest example of a similar political system with Malawi in the developed world is
that of the USA. The clear distinction in the various arms of government replicated in Malawi
and various parts of the world is greatly influenced by the American democratic system. It is in
the American legal system that the doctrine of separation of powers has found the most
expression; both in ideology and in practice. This is primarily evident in the Country’s
constitution which is the oldest written constitution still in use till date.83 The drafters of that
constitution, fully aware of the ills of the concentration of power in an absolute monarchy and
influenced by the jurists of the time sought to create a government that had its powers not only
vested in the people but equally administered by the various arms that governed them. 84 The
various checks put in place from the onset of the creation of the United States of America,
81
R v Electricity Commissioners [1924] 1 KB 171
82
Principle laid out in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB
223, from where the legal principle gets its name.
83
The constitution came into effect on June 21, 1788.
84
The Constitution of the United States.
16
made it self-evident that absolute and unchecked power was not going to reside in any arm of
government.85
The principle of separation of powers was institutionalized by the Supreme Court ruling in
Marbury v. Madison,86 where the US Supreme Court struck down part of the Judiciary Act,
1789, holding that it violated the US Constitution.87 This action by the court was predicated on
the idea that since the Constitution was supreme, anything that ran contrary to it would be
illegal. However, this responsibility assumed by the courts to declare constitutional illegality
was tempered with the notion of the need for restraint by the court from undue interference in
the actions of other branches of government, and judicial review was viewed as a tool only to
be used when the laws made could by no means be reconciled with the provisions of the
constitution. As such it was not to be used as an arbitral tool. In the long history of American
jurisprudence, especially on judicial review, there have been times where there has been heavy
involvement of the judiciary in the outcome of political and legislative developments,88 and
there have been periods of taking a conservative approach.89 In the 1950’s the landmark
decision of Brown v. Board of Education, Topeka90 ruled against the practice of segregation of
races in schools and found that not only was the theory of “separate but equal”91 based on a
false premise, it in fact imposed inequality and was contrary to the tenets of the constitution. 92
Importantly also, the court in that case held that; in interpreting the constitution, the ‘modern
day’ implications of the constitution’s provisions must be noted and applied accordingly. While
the decision was met with stiff opposition in many quarters, it yielded the much needed change
to racial segregation, which many state legislators were mostly unwilling to implement.
85
Ibid.
86
Marbury v. Madison, 5 U.S. (1 Cranch 137) (1803).
87
Ibid.
88
Mathew J. Lindsay, ‘In Search of Laissez-Faire Constitutionalism’, Harv. L. R. 123. (5).
89
Ibid.
90
Brown v. Board of EducationTopeka 247 U.S. 483 (1954).
91
Plessey v. Ferguson, 163 U.S. 537 (1896). where the Court stated that separate facilities were legal, as long as
essentially the same service were provided.
92
Brown v. Board of EducationTopeka 247 U.S. 483 (1954
17
Perhaps the most vociferous attacks on the judiciary came after the decision in Roe v Wade;93
both due to the substantive decision and the approach the courts had taken to reach this
decision. Some commentators alleged that the judiciary was usurping legislative powers in its
decisions and was exhibiting an “improvident and extravagant exercise of the power of judicial
review”,94 while other stated that the interpretation given by the court was well within the
scope of the right to privacy and as such the decision was the right step in the right direction.95
In more recent times, the judiciary has varied on a number of cases, with it sometimes having
no issues overturning legislation96 and in other cases being weary of interfering with the actions
of the legislature.97 So while it is apparent that the judiciary in America has sweeping powers of
judicial review as guaranteed in its constitutional separation of powers, the application of this
tool is limited to the ambit of the constitution and what the courts find is an adequate
expression of its provisions.
South Africa
The current political system and legal regime in South Africa is a product of hard negotiations,
concessions and collaboration,98 as was that of Malawi, which is an important reason to
93
Roe v Wade, 410 U.S. 113 (1973). In this case the appellant Jane Roe, a pregnant mother who wished to obtain
an abortion, sued on behalf of all woman similarly situated in an effort to prevent the enforcement of Texas
statutes criminalizing all abortions except those performed to save the life of the mother. The Court held that
statutes that criminalize all abortions except when medically advised for the purpose of saving the life of the
mother are an unconstitutional invasion of privacy.
94
See dissent judgment of White, J, Roe v Wade, 410 U.S. 113 (1973).
95
J.M. Balkin, ‘What Roe v. Wade Should Have Said’, New York University Press, New York. 2005.
96
In the case of Citizens United v. Federal Election Commission 558 U.S. 08-205 (2010), the courts overturned the
2002 Bipartisan Campaign Finance Act which dealt with limits that had been imposed on private spending in
electoral campaigns.
97
National Federation of Independent Business vs. Kathleen Sebelius, Secretary of Health, 132 S.Ct 2566, where
the court upheld the legal validity of the controversial Patient Protection and Affordable Care Act, popularly known
as ‘Obamacare’.
98
The Presidency, Republic of South Africa, ‘Twenty Year Review: South Africa’, available at
http://www.20yearsoffreedom.org.za/20YearReview.pdf, accessed on 28 July 2014.
18
examine the legal regime in South Africa. Also, as a fledgling democracy as that of Malawi,
lessons can be learnt from a country which more often than not faces similar challenges as
Malawi. The product of South Africa’s painstaking constitutional process is evident in the
country’s constitution, which has been hailed as one of the most progressive in the world.99
While the division of the three arms of government is similar to the parliamentary system of
the UK, supremacy lies in the constitution.100 The constitution having being a product of wide
spread consultation and input is viewed as the ultimate expression of the people’s will and the
embodiment of their collective and individual aspirations.
This constitution vests wide powers in the judiciary,101 which is as a result of a conscious effort
to avoid the concentration of powers in the legislative arm; of which the executive is a part
of.102 On the converse, the nature of powers given to the judiciary is such that it carries an
inherent danger of abuse if not restrained in its reach. 103 Therefore, even though the power
granted to the Constitutional Court is an incident of the checks and balances under the
separation of powers doctrine, the scope and extent the court’s power as outlined in chapter 8
of the Constitution is not easily defined and can have the effect of straining the relationship of
the judiciary with the other two branches of government.104 This state of affairs bears close
resemblance to the sweeping powers granted to the judiciary in Malawi. Perhaps this is due to
the similarities in both nations’ long history of single party rule with the many attendant
injustices that occasioned such a system.
The judiciary in South Africa being fully aware of its powers has sought to strike a balance in the
fulfilment of its role as the custodian of the people’s will as embodied in the constitution and as
an equal branch of government that seeks to work in consonance with the other arms of
99
Ibid.
100
Section 1 (c) and Section 2, Constitution of the Republic of South Africa Act No. 108 OF 1996.
101
Chapter 8, Constitution of the Republic of South Africa Act No. 108 OF 1996.
102
Op cit Sang (n3) 1.
103
Ibid.
104
Ibid.
19
government for the fulfilment of the people’s aspirations. This is evident in the long line of
decisions by the Constitutional Court which address this seeming conflict.
The first prominent intervention of the Constitutional Court in the domain of another arm of
government post 1994 was in the case of Doctors for Life International v Speaker of the
National Assembly and Others,105 where the court had to make a determination on whether the
control of parliamentary internal arrangements, proceedings and procedures which are areas of
legislative competence, are subject to examination by the judiciary.106 In that case, the
applicants had challenged the passing of four bills by Parliament relating to issues of health on
the ground that the legislature failed to fulfil its constitutional obligation of facilitating public
participation during the process of enacting the laws. 107In its decision, the court held that due
to the role of Parliament, as the principal legislative organ of state, it must be free to carry out
its functions without interference.108 It further affirmed that Parliament has the power to
determine and control its internal arrangements, proceedings and procedures. 109 It stated that
if Parliament were always to defend its actions in the courts it would paralyse government
processes.110 Importantly also, It asserted that the constitutional doctrine of separation of
powers also required that other branches of government refrain from interfering in
parliamentary proceedings.111 However, upon laying out these tenets, the Constitutional Court
proceeded to review the procedure that brought about the statutes in question and declared
the Acts of Parliament in dispute unconstitutional since they did not follow the constitutional
procedure.112 By virtue of this decision, the court laid out clearly that while it does not
subscribe to the notion of persistent scrutiny of the legislature, such scrutiny nonetheless is
required where there has been a contravention of the constitution. This is especially where
105
Doctors for Life International v Speaker of the National Assembly and Others [2006] (6) SA 416 (CC).
106
Ibid.
107
Ibid.
108
Ibid.
109
Ibid.
110
Ibid.
111
Ibid.
112
Ibid.
20
such a contravention runs afoul of the intrinsic principle of participatory democracy as
envisioned by the constitution.113The constitutional court has also applied its powers of judicial
review to cases where portions of a statute run contrary to the constitution, as in the case of
Minister of Home Affairs and Another v Fourie and Another,114 where the court held that the
definition of marriage according to the Marriage Act and the Common law would occasion a
breach of fundamental human rights.115 Upon making this observation it was confronted with
the option of either remedying the defect through reading-in the omissions or referring the
legislation back to Parliament for amendment. In a bid to reinforce the principle of separation
of powers, the court directed parliament to make the necessary amendments as it is the body
best equipped and given the constitutional mandate to create laws.116
In addition to these cases, the court held in President of the Republic of South Africa & Another
v Hugo117 that that the power of the president is subject to review with regard to prerogative
powers of the executive.118 However, as with its dealings with the legislature, the judiciary has
been weary of interfering with actions within the scope of the executive. This was made evident
in the case of Glenister v President of RSA and others 119 where the Constitutional Court had to
consider whether or not it was appropriate for it to make any order setting aside the decision of
the national executive through the cabinet to submit bills before Parliament.120 In its decision,
the court stated the importance of the doctrine of separation of powers and found that in the
instant case, the executive had carried out its constitutionally mandated task of initiating and
preparing legislation.121Also in the case of Kaunda v President of RSA;122where the court was
113
S 41 (1) (c) Constitution of the Republic of South Africa, Act No. 108 OF 1996.
114
Minister of Home Affairs and Another v Fourie and Another [2006] (1) SA 524 (CC).
115
Ibid.
116
Ibid.
117
President of the Republic of South Africa & Another v Hugo [1997] (4) SA 1 (CC).
118
Ibid.
119
Glenister v President of RSA and others [2009] (1) SA 287 (CC).
120
Ibid.
121
Ibid.
122
Kaunda and Others v President of the Republic of South Africa [2005] (4) SA 235 (CC).
21
called to compel the State to make diplomatic representation to protect citizens and prevent
them from being extradited to Equatorial Guinea,123 the court held that on issues of foreign
policy such as the timing and language of representations to be made and, the sanctions to be
issued, courts were ill-equipped to intervene and it was well within the purview of the
diplomats take well considered action with regards to securing the release of citizens. While
noting that a judicial determination on diplomatic issues was well within the rights of the
judiciary, as it had shown in Mohamed v President of RSA124 it would not be apt in the specific
case.125
In the area of the enforcement of socio-economic rights guaranteed in the South African
constitution, the judiciary has had to walk a tight rope in balancing the conflicting interest and
giving voice to the intent of the constitution without unduly pressuring the executive to act;
especially in the face of limited resources. This attempt at balancing has played out in several
landmark cases such as Soobramoney v Minister of Health (Kwazulu-Natal),126 Government of
the Republic of South Africa v Grootboom and others,127 Minister of Health v Treatment Action
Campaign,128 and Mazibuko and Others v City of Johannesburg and Others.129 As it currently
stands, the courts apply a test of reasonableness130 in the determination of how and when
123
Ibid.
124
Mohamed and Another v President of the Republic of South Africa and Others [2001] (3) SA 893
(CC). In this case, the constitutionality of the State extraditing a foreign national wanted for terrorism to the United
States of America was up for determination. The court held that asserted that any order issued for the
enforcement of the Bill of Rights would be appropriate and that such an order could not be negated on the ground
of the separation of powers doctrine since the supremacy of the Constitution meant that the Bill of Rights is
binding on all organs of state.
125
Ibid.
126
Soobramoney v Minister of Health (Kwazulu-Natal) [1998] (1) SA 765 (CC).
127
Government of the Republic of South Africa v Grootboom and others [2001] (1) SA 46 (CC).
128
Minister of Health v Treatment Action Campaign (No. 2) [2002] (5) SA 721 (CC).
129
Mazibuko and Others v City of Johannesburg and Others [2010] (4) SA 1 (CC)
130
The reasonableness test as laid out in the case of Grootboom provides that the court would review the
measures taken by the state to see if they were reasonable and in line with the duties and responsibilities of the
22
socio-economic rights may be provided by the state. While this has become the litmus test, the
outcome of the application of the test has varied;131 indicating the intent of the court to simply
hold the actions of the executive to an impartial test and declare on the propriety of the action
based on the unique facts of each case brought before it. In furtherance of this stance, the
Constitutional Court has rejected the ‘minimum core’ argument for the enforcement of rights,
stating that it is both impractical to set a minimum core for socio-economic rights, and that it is
an overstep of the court’s authority, as it is a matter best addressed in the first place by the
other arms of the State.132
In summary, while the principle of separation of powers is largely universal, the dynamics of its
application is unique to each state, depending on its unique legal and political history, the path
it seeks to chart and most importantly the provisions of its constitution. In the case of Malawi,
the constitutional provisions are quite clear with regard to the powers they give the judiciary
and it has been shown in the jurisprudence of other countries above, the notion that the
judiciary would be empowered to check the excesses of other arms of government is not such a
‘wild’ idea in the administration of a truly democratic state. However, it is instructive to note
that while there has been a propensity for the courts to act judiciously, the sweeping powers it
is granted also pose a number of challenges.
One such major challenge is in the area of creating precedence. It is accepted law that the
judgments of competent courts form a part of the law, as do legislation created by parliament.
However, not only do the courts have the power to ‘create’ law, they also have the power to
mould the other forms of law created by parliament through their interpretations of those
laws. While the laws created by parliament can either be vetoed by the executive in the person
of the President or can be declared null and void by the judiciary, there is no external check to
the law created by the judiciary. The possibility of altering judge made law only goes as far as
state with regard to meeting their obligations to the people. In the instant case, the court declared that the state
had breached its duty.
131
In the case of Mazibuko, the court held that in applying the reasonableness test, the state had taken all
reasonable steps to provide water for the appellant.
132
Mazibuko and Others v City of Johannesburg and Others [2010] (4) SA 1 (CC)
23
the highest court of the land and when these courts make decisive findings on issues, they
more often than not are unwilling to overturn precedence. As such, bad law may hold sway for
many years without any recourse to an alternative.
Another problem that may arise from the excessive powers vested in the judiciary is in the
‘limited’ pool of deliberation. In Malawi for example, the Supreme Court of Appeal sits with an
average of 3 judges on a matter. While more often than not, the decisions of the Supreme
Court are well considered, in theory, the reality that judgements and eventual precedence can
be determined by the personal inclinations of only a few may give room for concern. According
to legal realist theories, the decision of judges is more often than not shaped by their personal
beliefs, inclinations and outlook on many issues.133 This often means that even where and when
the legal precedence is cited; it is more likely merely done to give legal authority to a previously
held sentiment.134 As Nagel has stated, there is a tendency for the judiciary to ascribe to itself
and consequently celebrate and propagate itself in the role of being leaders of moralistic
reform.135 While it is impossible to disassociate the thought process of judges from judicial
decisions, conscious effort must be made to ensure that while judicial independence and
enterprise is encouraged, judges maintain a personal disinterest in the cases they decide.136 A
situation where the actions of judges can already to be predicted merely based on the type of
matter brought before them does little to instil public confidence,137 especially where such
matters concern other arms of government. The judiciary must avoid a posturing of unwavering
antagonism against the legislature and executive.
A case often made for the restriction of judicial power to merely interpreting the law, is that
unlike other forms of law and policy that is made by the executive and the legislature, the law
133
Michael Steven Green, ‘Legal Realism as Theory of Law’, (2005) 46 Wm. & Mary L. Rev. 1915.
134
Ibid.
135
Robert F. Nagel, ‘Unrestrained: Judicial Excess And The Mind Of The American Lawyer’, (2008) New Brunswick:
Transaction Publishers.
136
Paul D. Carrington and Roger C. Cramton, ‘Judicial Independence in Excess: Reviving the Judicial Duty of the
Supreme Court’, (2009) Cornell L. Rev 94(3).
137
Ibid.
24
made by the judiciary is not subject to the checks of other branches of government 138 and while
the actions of the executive and legislature can be checked without making necessary recourse
to the specific individuals behind the decision, in the case of the judiciary, any attempts to
check its actions will more likely result in personal sanctions against a specific officer or group
of officers of the court. The result of this is that while the actions of the judiciary in checking the
excesses of other branches can more easily be read as mere official actions in the normal cause
of duty, the actions of the other arms against an erring judge will more likely be viewed as an
undue interference and as an attempt to victimize and undermine the judiciary,139 and so lead
to little or no antagonism of otherwise overindulgent acts by the judiciary. Such a skewed
system can over time lead to a perception of being untouchable in the judiciary and
consequently lead to an eventual abuse of power, because the other arms of government are
walking on egg shells around the judiciary.
Perhaps the greatest irony in the notion of the independence of the judiciary is in the legal
principle of stare decisis which binds lower courts to follow the ruling of higher courts on
matters with similar facts, because while the highest court of the land is relatively free in the
way it decides matters, lower courts have little or no room to wriggle in their determination of
suits, even where they have contrary positions.140 Therefore in a sense, the arm of government
that clamours the most for independence may in itself be offering little or no independence to
its officers in the dispensing of their duties. As has been seen in America for example, when the
judiciary makes binding law on an issue with deep political, religious and personal
undercurrents and is thus intrinsically divisive, as is the legalization of abortion, same sex union
and gun control;141 it hands down law which may even though be subject to wide deliberation,
possible contestation and eventual overturn, remains the substantive law which must be
138
Schindler v. Schiavo, 404 F.3d 1270 (11th Cir. 2005) in this American case, the judiciary held that Congress was
not constitutionally empowered to reverse a judicial decision denying federal jurisdiction over the matter of
medical care.
139
Op cit Carrington (n134) 15.
140
Ibid.
141
Ibid.
25
followed. Not only are these judgements binding on lower courts all across the country, they
are also binding on the citizenry at large. This in itself can amount to a form of judicial
dictatorship. In a country like Malawi, parallels may be drawn where the judiciary is either too
keen on fuelling social change in its judgments which aren’t backed by a corresponding will of
the people for such change, as in issues of customary law or in other situations is being too
conservative in outlook when the public tone shows a shift towards a more progressive
disposition as in the case of the advancement of socio-economic rights.
All these then raise the question whether or not the judiciary in the actual sense of it is equal to
the other arms of government or it is in practice the de-facto head of government and in the
words of Judge Richard Posner has become a "super legislature" that sits chiefly to proclaim
new law to govern future transactions and relations.142 The fact that the judiciary has final
arbitral powers for one means that all issues tentatively have their final determination with the
court. Also, the fact that the officers of the court are not answerable to any other arm of
government after approval and appointment mean that they alone provide internal checks on
themselves, and the other arms of government and the citizenry alike have to have faith that
the ethical standards of the judiciary will continue to be upheld through internal systems that
groom, train and equip impartial judges. Perhaps a healthy balance in the powers and
accountability of the judiciary lies in the true enforcement of the rule of law and not the
enforcement of law as envisaged by the judiciary. The judiciary itself must be bound by the laws
they have been chosen to administer.143
If indeed the enforcement of the rule of law is the case, the court must make conscious effort
to uphold its tenets of impartial and legally sound judgement. It must now, more than ever rise
up to the duty reposed on it by the people through the constitution. Any attempts to unduly
assume the role of lawmakers, as when courts impart principles into the Constitution that have
scant textual basis, or when the courts choose to disregard or stretch the text of valid
142
Richard A. Posner, ‘The Supreme Court 2004 Term-Foreword: A Political Court’, (2005)119 Harv. L. Rev. 32, 35-
39, 60
143
Op cit Carrington (n134) 15.
26
legislation, will mean that they invite political accountability of the sort to which legislators are
subject to.144 Such scrutiny can have untold effect on the integrity, independence and efficacy
of the judiciary.
Going forward, the judiciary must avert its attention to other areas where it wields power and
take steps to give proper guidance. These areas must be explored in order for the judiciary to
maximally exercise is authority as a viable and equal arm of the state while at the same time
avoiding the risks of overreaching its powers. Some of such arrears are with regard to the
following
THE JUDICIARY AND THE ENFORCEMENT OF HUMAN RIGHTS
A major point of discontent with the former political system in Malawi was with regard to the
constant and unhinged abuse of fundamental human rights. The new constitution sought to
remedy this in the provision of a specific chapter for human rights145 with emphasis on certain
rights as been non-derogable.146 While, the rights provided for are not as expansive as those
provided for in other contemporary constitutions as in that of South Africa, the constitution
makes provision for rights which have hitherto being a source of contention with little regard
given to them, such as the rights of children,147 women,148 political rights149 and education.150 It
is therefore the responsibility of the courts to give meaning to these rights and set out the
barometers of their implementation. The situation with regard to human rights litigation is
however not bleak; for while such litigation is generally limited, there have been a number of
significant decisions where the Malawian courts have tried to provide guidance.
144
Ibid.
145
Chapter 4, Republic of Malawi (Constitution) Act, No 38 of 1998.
146
Section 44(1), Republic of Malawi (Constitution) Act, No 38 of 1998.
147
Section 23, Republic of Malawi (Constitution) Act, No 38 of 1998
148
Section 24, Republic of Malawi (Constitution) Act, No 38 of 1998
149
Section 40, Republic of Malawi (Constitution) Act, No 38 of 1998
150
Section 25, Republic of Malawi (Constitution) Act, No 38 of 1998
27
In Attorney-General v Lunguzi and another,151 the court importantly stated that while the
constitution did not expressly define what human rights are but merely provided for them, the
list of human rights are not closed ended and merely those provided for in the constitution.
According to the court, other rights find expression in other portions of the constitution and
that generally, rights are simply a reflection of the respects that must be accorded an individual,
based on a common sense of justice. This decision by the court served to open the doors for the
acceptance and acknowledgment of various other rights not necessary provided for in the
constitution but are also not inherently antithetical to its provisions. While the court have
consequently upheld various human rights by simply applying the provisions of the constitution
to the facts of the case152 situations that involve a proactive reading of the constitution have
come before the courts. This was the case in the case of Rep v Mwenda153 where the court had
to consider whether or not the provision for corporal punishment in Section 16(1)(g) of the
Children and Young Persons Act was in line with the rights of the child as stated in the
constitution. The court found that such a provision was inconsistent with the rights enshrined in
the constitution and thus unconstitutional. Also in the case of Gwede v Attorney-General154the
court had to apply a balance of interests between the right to property and the Forfeiture Act.
Upon examining the purpose of the act along with international law on the right to property,
the court stated that the act was not arbitrary and did not amount to the legalisation of
expropriation; as such it was not an infringement on the rights to property and was not
contrary to the constitution. While in the case of The State, The President of Malawi and
Malawi Law Society155the court stated that a directive by the President to ban all forms of
demonstration in relation to intended constitutional amendments by the President, was both
an overreach of the president’s powers but was also an infringement on the rights of the
people and so was an unacceptable limitation of the rights guaranteed in the constitution.
151
Attorney-General v Lunguzi and another [1996] MLR 8.
152
Director of Public Prosecutions v Banda and others [1997] MLR 7
153
Rep v Mwenda, [1999] MLR 356.
154
Gwede v Attorney-General [2000-2001] MLR 145
155
The State, The President of Malawi and Malawi Law Society [2002-2003] MLR 409.
28
As seen above, the judiciary has made concerted and deliberate effort to be firm in its
upholding of human rights, even where these rights have been threatened by acts of other
arms of government. In giving life to the rights in contention, it has sought to rely on the
constitution and its provisions as the basis for its findings. This is important, so as not to stray
and make findings based on mere objections or a perception of undue prosecution of the
citizenry.
However, there is room for improvement in the enforcement of the socio-economic rights
provided for in the constitution. The decisions of the South African Constitutional Court in this
regard can further give guidance to the Malawian courts.
THE JUDICIARY WITH REGARD TO POLITICS AND POLITICAL ISSUES
Per the court in Chakuamba v Ching’oma156 the judiciary must desist from getting involved in
the political arena as courts are not best suited for resolving political disputes. Such matters
threaten the independence of the judiciary, and by effect, the sanctity of separation of powers.
While this is the rule with regards to the decisions of the court, not every situation is necessarily
clear cut, and there are often political issues which have legal ramifications, for which the
implications may often be far reaching. These situations therefore warrant a considered look at
whether or not the courts should indeed stay away from the fray all together or delve in or
merely resolve the issues that have legal bearing. In the determination of this, it is perhaps
instructive to be guided by the constitution. In this regard, the courts should only allow itself be
involved where there is a manifest breach of the constitution, anything beyond this mandate
may be tantamount to the judiciary playing politics and consequently usurping the power of the
people to choose their leaders.157
CONCLUSION
156
Chakuamba v Ching’oma, [1996] MLR 425.
157
Carrington and Cramton critiquing the decision of the American Supreme Court in Bush v. Gore, 531 U.S. 1046,
1046-47 (2000). Op cit Carrington (n134) 15.
29
As seen from some cases outlined above, one major importance judicial intervention has on the
state is that more often than not, such intervention can initiate the kind of positive change
grounded on constitutional principles; which the other arms of government are either too
scared or unwilling to make for reasons which border on them being elected officials and as a
result dogged by the urge for re-election.158 However, for these changes to be meaningful, they
must be grounded on rule of law, constitutionalism and an unbiased judiciary that is tempered
and yet circumspect in its findings and not quick to throw the personal feelings of its officers
into the fray. In the early years of the establishment of separation of powers as a principle of
law and governance, the judiciary made law only in that modest common law way, 159 always
conscious of not overstepping its mandate. It was the measured sense of efficiency that spurred
the repose of much confidence and power in the judiciary; trusting it to be objective and
impartial and leading it to be viewed as the "the least dangerous" branch of government. 160 It
is thus important to return to such manner of adjudication.
A situation where the judiciary proceeds unbridled in its use of its powers may result in extreme
measures by the legislature and the executive in terms of appointments and funding, which can
lead to friction between the arms of government and may not augur well for democracy for as
Hamilton blatantly put it, “the executive has the sword and the legislative has the purse; the
courts have “no influence” over either.161 However, this kind of external check on the powers
of the judiciary is viewed by Nagel as the only viable and eventual solution to checking possible
excesses of the judiciary and maintaining real separation of powers, because according to him,
internal restraints, such as personal and professional modesty will not work because the legal
culture by its nature overwhelms judicial officers.162 As in the words of Judge Posner about
judges; "Cocooned in their marble palace, attended by sycophantic staff, and treated with
158
Op cit Sang (n3) 1.
159
Op cit Carrington (n134) 15.
160
Alexander Hamilton, ‘The Federalist’ No. 78, at 465.
161
Ibid.
162
Op cit Nagel (n134) 15.
30
extreme deference wherever they go, Supreme Court Justices are at risk of acquiring
exaggerated opinions of their ability and character”.163
But while many seek to ascribe many of the tendencies of the judiciary generally to overstep its
authority on an over bloated sense of importance, in more specific cases, it may well be a
reactionary jerk to often unbridled attempts by other arms to wield absolute power and control
over situations and the people as a whole. The judiciary must thus be careful to give measured
response to such action through the judicious use of its judicial powers. While it is now
apparent that the judiciary in Malawi has been granted sweeping powers by the constitution, it
must be minded by the main objective of separation of powers, which is to keep all arms of
government in check in order to keep things in perspective, even if it means checking itself in
the absence of external checks.
163
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
31