President of Malawi & Anor. v Kachere & Ors. (MSCA Civil Appeal 20 of 1995) [1995] MWSC 2 (19 November 1995)

Key Facts

Issues

• This issue questions the legality of the Attorney General serving as a Member of Parliament. The respondents argue this may conflict with constitutional provisions regarding the independence of the Attorney General's role.
• The fourteenth issue challenges the Government's failure to comply with section 146 of the Constitution, which mandates the calling of Local Government Elections, arguing this omission is a constitutional violation.
• The thirteenth issue asserts that the National Assembly breached the Constitution (section 8) by amending the Constitution to introduce an appointed second Vice President, contradicting the principle that all high offices of state must be elective.
• The seventh issue claims the President breached constitutional provisions (sections 51(2)(e) and 94(2)(e)) by appointing cabinet members who retain their status as sitting Members of Parliament, potentially violating rules against political officeholders in public appointments.
• The fourth issue challenges the President and Cabinet's compliance with section 88(3) of the Constitution, which requires disclosure of personal and spouse's assets, liabilities, and business interests upon election. The respondents allege non-disclosure constitutes a constitutional violation.
• This issue claims the President and Executive Branch failed to comply with the constitutional requirement (section 7) to determine the public's express wishes before initiating a constitutional amendment, undermining democratic legitimacy.
• This issue addresses whether the President of Malawi failed in his constitutional duty to uphold and defend the Constitution by permitting the presentation of an Executive Branch Bill or Bills that allegedly violated section 88 of the Constitution. The respondents argue the President's actions undermined his constitutional obligations.
• This final issue questions whether the President and National Assembly have complied with the Constitution by not establishing the Senate, which is presumably a required constitutional body.
• The eleventh issue argues that the National Assembly breached constitutional principles by creating high offices of state that are not elective, conflicting with the preamble and section 6 of the Constitution, which emphasize democratic principles.
• The first sub-issue under this category asserts that the President breached constitutional provisions (sections 50(2)(e) and 98(6)) by appointing a Minister of Justice who is concurrently a Member of Parliament, potentially creating a conflict of interest.
• This sub-issue challenges the President's appointment of two individuals to effectively lead the Ministry of Justice, arguing it contravenes section 98(6) of the Constitution, which likely restricts such dual appointments.
• The second issue examines whether the National Assembly has the authority to amend the Constitution during the provisional application period, as outlined in section 212 of the Malawi Constitution. The respondents challenge the timing and legality of such amendments before the scheduled National Constitutional Conference.
• The first issue questions whether the Defendants violated the Malawi Constitution by not ensuring compliance with section 96(2) prior to presenting an Executive Branch Bill or Bills aimed at amending the Constitution. This section likely pertains to procedural requirements for constitutional amendments, and the respondents argue that the failure to adhere to these procedures constitutes a breach of the Constitution.
• This issue argues that the President violated section 98 of the Constitution by appointing the Attorney General as a cabinet member, which may conflict with the office's independence as a principal legal adviser to the Government.
• The ninth issue questions whether the National Assembly has the constitutional authority to amend the Constitution in the manner it did, referencing section 212. The respondents argue the amendment process followed was procedurally invalid.
• This issue challenges the President's authority to assent to the Bill amending the Constitution, suggesting his role in this process may be constitutionally restricted or require specific procedural compliance.

Holdings

• The appeal was allowed with costs, overturning the lower court's decision to permit proceedings against the President and Speaker. The court concluded that the respondents lacked locus standi to challenge the constitutionality of the acts in question.
• The Speaker of the National Assembly was found to be immune from legal proceedings for utterances made in Parliament, as protected by section 60 of the Constitution. The court emphasized that such immunity aligns with common law principles and constitutional provisions.
• The court held that the President of Malawi is not a public officer and therefore cannot be sued personally in his capacity as Head of Government. Legal actions against the President must be directed through the Attorney General under section 3(1) of the Civil Procedure Act.

Remedies

• The court awarded costs to the appellants in this case.
• The appeal is allowed as per the court's ruling.

Legal Principles

• The court emphasized that political offices (President, Speaker) are constitutionally distinct from 'public offices' (e.g., DPP, Inspector General) and that the latter are explicitly defined. This distinction justified the exclusion of the President and Speaker from the public officer category for litigation purposes.
• The court strictly applied the Literal Rule to determine that the President and Speaker are not 'public officers' under the Constitution, relying on the plain wording of sections 91(1) and 60. This approach avoided expansive interpretations of constitutional terms, ensuring alignment with explicit statutory definitions.
• The court upheld the President's Sovereign Immunity from civil proceedings as Head of State and Government, citing section 91(1). It clarified that while the President cannot be sued personally, the office remains subject to judicial orders regarding constitutional rights and duties.

Precedent Name

• Boyce v Paddington Borough Council
• Lunguzi v Attorney General
• Re Barnato
• Thorne District Council v Bunting
• UDF v Attorney General
• Dyson v Attorney General
• Fairchild v Hughes

Cited Statute

• Civil Procedure (Suits by or against the Government or Public Officers) Act (Section 113)
• Administrator General's Act (Cap 10:01, Section 2)
• General Interpretation Act (Cap 1:01, Section 7)
• Civil Procedure (Suits by or against the Government or Public Officers) Act (Section 3)
• Constitution of Malawi (Section 91)
• Courts Act (Cap 3:02, Section 11)
• Constitution of Malawi (Section 78)
• Constitution of Malawi (Section 46)
• Constitution of Malawi (Section 60)
• Finance and Audit Act (Cap 3:02, Section 53)
• Constitution of Malawi (Section 89)
• General Interpretation Act (Cap 1:01, Section 2)

Judge Name

• Mr Justice Kalaile
• Mr Justice Mtegha
• Mr Justice Chatsika

Passage Text

• "The Speaker... shall not, in respect of any utterance in the National Assembly... be amenable to any other action or proceedings in any court..."
• "No person holding the office of the President... may be sued in any civil proceedings but the office of President shall not be immune to orders of the courts concerning rights and duties under this constitution."
• "3 - (i) save as may be otherwise expressly be provided by any Act, suits by the government shall be instituted by or against the Attorney General..."