* They are still members of the National Governing Council and can still take part in the activities of the DPP
* Even at the highest level of a National Governing Council and/or a Central Committee
* Can this really be a violation and/or a deprivation of one’s political rights? I don’t think so
By Duncan Mlanjira
The High Court sitting in Lilongwe has ruled that not any political right of Grezelder Jeffrey, Kondwani Nankhumwa and Cecilia Chazama was violated by the Democratic Progressive Party (DPP) President, Peter Mutharika’s decisions when he assigned the three to different positions from those they were initially holding.
Made in chambers today, December 28, Justice Howard Pemba maintained that the three have failed to demonstrate that they have a good and arguable claim to the right they seek to protect — and thus there is no demonstration of a serious question to be tried as their political rights were not violated.
The three applied for the injunction in pursuant to Order 10 rules 1,3, 27 and 28 of the Courts (High Court) (Civil Procedure) Rules 2017, arguing that they were serving as the Party’s secretary general (Jeffery); vice-president South (Nankhumwa) and director of women (Chazama) until early this month of December when Mutharika assigned them to other positions.
Jeffrey was assigned as vice-president Central and was replaced with Clement Mwale while Nankhumwa and Chazama were assigned as DPP presidential advisors.
Apart from seeking the interlocutory order suspending Mutharika’s decision assigning them to the aforementioned positions, Jeffrey was stopping Mwale from being the new secretary general as well as nullifying DPP’s proceedings and resolutions made at its national governing council (NGC) meeting on December 13 at Mangochi.
Having heard their arguments as well as the DPP’s own defence, Justice Tembo ruled that he is convinced on the balance of probabilities that the three claimants “have failed to convincingly demonstrate to this Court that they have a good and arguable claim against the defendants”.
In the first place, he said, the three “have not substantially demonstrated any loss that they may suffer if the order of an interlocutory injunction is not granted”, saying they opted for legal action seeking a protection of their constitutional and political right which they believe has been violated or is under threat by the decision.
“However, in as far as the circumstances of their cases are concerned, this Court believes that there is no any violation of the Claimants’ political right as enshrined in Section 40 of the Constitution of the Republic of Malawi.
“For the avoidance of doubt, Section 40 of the Malawi Republican Constitution provides as follows:
* 40(1) Subject to this Constitution, every person shall have the right—
(a) to form, to join, to participate in the activities of, and to recruit members for, a political party;
(b) to campaign for a political party or cause;
(c) to participate in peaceful political activity intended to influence the
composition and policies of the Government; and
(d) freely to make political choices.
“In the present case, the Claimants still enjoy all their political rights as provided for in Section 40(1) of the Malawi Constitution which rights include to form, join and peacefully participate in the activities of the [DPP]”.
Justice Tembo maintained that evidence shows that the three claimants have not been removed from the DPP as they are still its members and enjoy all their political rights in accordance with the DPP’s constitution.
“Evidence is further rife that the Claimants have just been reshuffled and moved from the positions they were initially holding to other positions. This, according to the [DPP’s] constitution is not a removal from a position and it is erroneous by the Claimants to suggest that what has happened herein is a removal per se.
He further observed that according to the DPP’s constitution, positions of vice-president and secretary general, “for example, are both high ranking positions and under Articles 9(2) and 10(6) of it, any person holding either of these positions becomes a member of a National Governing Council and Central Committee”.
“Similarly, members holding the positions of presidential advisors, to which [Nankhumwa and Chazama] have been assigned, are ex officio members of the National Governing Council under Article 10 (7) with powers to vote and/or make any decision thereto.
“Under Article 9 of the DPP’s constitution, such other members of the National Governing Council may be invited to attend the meetings of the Central Committee which is the second hierarchical structure of the [DPP].
“This literally shows that all the claimants are still members of the National Governing Council and can still take part in the activities of the [DPP] even at the highest level of a National Governing Council and/or a Central Committee.
“Can this really be a violation and/or a deprivation of one’s political rights? I don’t think so,” ruled the Judge, while emphasizing that the brought in some conditions to Article 10 (8) “which do not exist”.