* The summons for interlocutory declaratory orders of injunction was unprocedural
* For being improperly brought before Supreme Court Court as well as the High Court itself
By Duncan Mlanjira
The Supreme Court of Appeal has rejected an appeal that Grezelder Jeffrey, Kondwani Nankhumwa and Cecilia Chazama applied after the High Court rejected three politicians’ application that the Democratic Progressive Party (DPP) president, Peter Mutharika violated their political rights when he assigned them to different positions from those they were initially holding.
Made in chambers on December 28, High Court Judge, Justice Howard Pemba maintained that the three failed to demonstrate that they have a good and arguable claim to the right they seek to protect — and thus there was no demonstration of a serious question to be tried as their political rights were not violated.
And in her judgement made on Wednesday, January 3, Justice of Appeal Dorothy nyaKaunda Kamanga said after considering the documents and skeleton arguments filed by both the three applicants and the DPP, as well as hearing their oral arguments, she concluded that the summons for interlocutory declaratory orders of injunction was unprocedural for being improperly brought before Supreme Court Court as well as the High Court itself.
“In the present matter, the so-called ‘fresh’ summons was made under the wrong provisions and the applicants’ procedural approach was likewise unsupported by law.
“It has already been explained that the two provisions cited by the Applicants as the legal basis of their motion before this Court, namely Section 7 of the Supreme Court of Appeal Act and Order I Rule 18 of the Rules, do not authorize the Applicants to seek remedy in the manner that they have.
“Basically, the summons is premature since there is no appeal pending in this court and this court lacks jurisdiction to hear and determine it.
“This Court can only hear matters that have been properly filed. The proper approach would have been for the Applicants to file an appeal against the High Court’s ruling and apply for a stay of the said ruling as well as the suspension of [Mutharika’s] decisions pending the hearing and determination of the appeal.
“In any event, the record shows that the Applicants never followed the prescribed procedure for resolving the political party dispute under the [DPP’s] constitution, and they also failed to demonstrate an attempt to invoke the party’s internal conflict resolution mechanism, so this Court concludes that the dispute was premature for litigation.
“Accordingly, the summons and the interim injunctive reliefs sought by the Applicants against the Respondents are dismissed with costs,” ruled Justice nyaKaunda Kamanga.
The three applied for a injunction from the High Court 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 (Jeffrey); vice-president South (Nankhumwa) and director of women (Chazama) until early 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 Pemba ruled that he is convinced on the balance of probabilities that the three claimants “failed to convincingly demonstrate to the Court that they have a good and arguable claim against the defendants”.
In the first place, he said, the three did not substantially demonstrate any loss that they may suffer if the order of an interlocutory injunction was not granted — saying they opted for legal action seeking a protection of their constitutional and political right which they believed 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.”
And for the avoidance of doubt, Justice Pemba quoted Section 40 of the Malawi Republican Constitution, which provides that:
* 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.
Pemba added that in the case brought before him, the three 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 Pemba maintained that evidence showed that the three claimants had 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”.