Banda v Malawi Congress Party (Civil Case 86 of 2024) [2024] MWHCCiv 6 (6 August 2024)

IN THE HIGH COURT OF MALAWI CIVIL DIVISION- LILONGWE REGISTRY Civil Case No 86 of 2024 [Before Hon. Justice Pemba. ] Between: EDDIE BANDA----------------------------22222eooneennnnneeeeeenee CLAIMANT MALAWI CONGRESS PARTY-------------22-------"---22222 222022" DEFENDANT CORAM: HON. JUSTICE HOWARD PEMBA Mr Soko, Counsel for the Claimant Mr Chitukula, Counsel for the Defendant Mrs. Mwase, Court Clerk and official Court interpreter Ms. Tambose Moyo, Court reporter. RULING Introduction 1. On 31%t July 2024, | reserved my ruling in this matter commenced by Mr Eddie Banda (the Claimant), against the Malawi Congress Party (herein referred to as the Defendant). 2. The brief genesis of the matter is that the Defendant is a political party deemed to have been registered under the Political Parties Act. In terms of its management and control, it is run by its National Executive Committee (NEC) which is established under Articles 30 and 31 of its Constitution. The said NEC is elected by the national convention for a term of five years. These elections are due and have been scheduled to start on 8* August 2024 and candidates have already presented their nomination forms. 1|Page 3. However, on or around 28" February 2024, the Defendant’s National Executive Committee passed a resolution which introduced eligibility criteria for one to contest at the said coming elective convention. The criteria require that for one to contest at this convention, they must have been a member of the Defendant party for a period of not less than 2 years preceding their nomination for election, and that they must have held an office in the Defendant preceding such nomination. 4. The Claimant, who claims to be a member of the Defendant party and desires to contest for a position of a 2"4 Deputy Director - Social Services, is aggrieved with this resolution and challenges it alleging that the Defendant’s NEC has no authority or legal competence under its constitution to pass such a resolution and that the said resolution is inconsistent with the rights that members of the Defendant have under Articles 6 to 15 of the Defendant’s constitution. 5. The Claimant is therefore seeking the following reliefs: a. A declaration that the resolution of the defendant’s NEC is inconsistent with the rights that members of the Defendant have and therefore a nullity b. A declaration that the said resolution is in any event ultra vires the powers the NEC has under the Defendant’s Constitution c. An order setting aside the impugned resolution. 6. The Defendant denies the claim by the Claimant based on the following grounds: i. That the claimant is not a member of the Defendant party and therefore lacks sufficient interest to commence these proceedings ii. That the matter is not justiciable as it is inherently political rather than legal and as such the court is not the appropriate forum for its resolution ili. That even if the Claimant is found to have sufficient interest in the matter, the resolution passed by the Defendant’s NEC is consistent with customs and procedures of all matured political parties in an open and democratic societies and that the NEC acted within its powers under Article 35 (2) of the Defendant’s constitution. 2|Page 7. It is based on these grounds that the Defendant prays before this Court for a dismissal of the Claimant’s claims. Issues for determination 8. Having listened to the parties’ arguments, this Court is therefore called upon to determine the following three major issues: i. Whether or not the Claimant’s matter herein is justiciable or whether the matter is inherently political such that this Court is not the appropriate forum for its resolution ii. Whether or not the Claimant lacks sufficient interest to commence this matter by virtue of him not being a member of the Defendant party iii. Whether or not the restrictive resolution passed by the Defendant’s NEC is consistent with the rights of the members. Law and analysis i. Burden and standard of proof 9. In determining this matter, this Court reiterates that the burden of proof in civil matters lies upon the party that substantially asserts the affirmative of the issue. Lord Maugham in Constantine Line Limited vs Imperial Smelting Corporation (1942) A. C. 154 @ 174 expounded this notion in the following words: “The burden of proof in any particular case depends on the circumstances in which the claim arises. In general, the rule which applies is Ei qui affimat non ei quit negatin cumbit probatio [i.e. the burden of proof lies upon him who affirms, not him who denies]. It is an ancient rule founded on considerations of good sense and should not be departed from without strong reasons” (See also Tembo and others vs Shire Bus lines Ltd (2004) MLR 405 @406) 10. This rule is adopted principally because it is but just that he who invokes the aid of the law should be the first to prove his case; and partly because, in the nature of things a negative is more difficult to establish that an affirmative. 3|Page 11. The standard of proof required in civil matters is generally expressed as a proof on the balance of probabilities. The balance of probability standard means that a court is satisfied that an event occurred if the court considered that on the evidence, the occurrence of the event was more likely than not. It is trite that in such proof, the facts must carry reasonable degree of probability, but not so high as required in a criminal case. If the evidence is such that the tribunal can say ‘we think it is more probable than not’ the burden is discharged but if the probabilities are equal, it is not (see Bonnington Castings Ltd vs Wardlaw [1956] 1 613, 620, and Miller vs Minister of Pensions (1947) 2 All ER 372-374) 12. In the case of Securicor (Mw) Ltd vs Central Poultry Ltd [1995] 1 MLR 250 Ntegha, J buttressed the point when he stated as follows: “lam aware that this is a civil case, and the burden of proof is on the one who alleges. He must prove the allegation to the requisite standard, and that is proof on a preponderance of probabilities....” See also Msachi vs Attorney General [1991] 14 MLR 287, at 290, where Tambala J (as he then was) stated that ‘[t]his is a civil action and the duty of the plaintiff, in a civil case, is to prove his case on a balance of probabilities” 13. In dealing with the issues in dispute in the present case before me, | am bound to follow these principles. | now proceed to consider the issues. ii. whether or not the Claimant’s matter is justiciable or whether it_is_ inherently political_such_ that this Court _is not the appropriate forum for its resolution 14. On this issue, it is the assertion by the Defendant that the present matter is not justiciable as it is inherently political in nature and thus outside the competence of this Court. The Claimant denies this position and argues that the issues in dispute are all legal and nothing political. 15.| have made reference to Section 108(1) of the Republic of Malawi Constitution, together with a number of decided cases cited by both parties. In the first place, Section 108 (1) gives this Court unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law. Similarly, Section 4|Page 103 (2) provides that the judiciary, to which the courts belong, shall have jurisdiction over all issues of judicial nature and shall have exclusive authority to decide whether an issue is within its competence. 16. In the same vein, Section 10 (1) of the Republican Constitution provides that in the interpretation of all laws and in the resolution of political disputes, the provisions of this Constitution shall be regarded as the supreme arbiter and ultimate source of authority. 17. By bringing in Section 10 (1), especially the underlined part, the framers of our Constitution had in mind that political disputes may see their way to the courts and properly be entertained for their resolution. This is exactly what courts in Malawi have been doing ever since the birth of multiparty democracy. Actually, we seem to agree that there is no denial that courts have jurisdiction over “political disputes” that raise issues of judicial nature. 18. Of course, | am pretty much aware that courts have held that courts must be slow or cautious to get involved in such disputes (see the case of Patrick Bandawe vs. Malawi Congress Party (Civil Cause 1010 of 2018) [2019] MWHC 3 (8 January 2019). It is premised on the same understanding that under Section 103(2), courts have been given the discretionary powers to determine if the matter is fundamentally or too political and fit to be properly resolved by politicians rather than courts. 19. Nevertheless, as stated by Justice Kenyatta Nyirenda in Patrick Bandawe case cited above, a question of whether or not a court should exercise its jurisdiction over a political dispute is not one that can be decided in abstract without paying special attention to the facts of a particular case. On the same note, | wish to agree with Justice Mvula that the dispute of where to sit or who is to sit where in the august house, as was the case in The State (on application of Hon. Shadreck Namalomba vs Leader of opposition and others, JR cause No 5 of 2022, was too political and perhaps a less serious issue not worthy to be resolved by the court. This is not the case with the present matter and that is where | find it distinguishable. 5|Page 20. The Claimant’s dispute in the present matter touches on the legal issues. The case involves the interpretation of a Defendant political party’s constitutive document to see whether or not powers that have been exercised have been exercised properly and intra vires the Constitution of the party. This, | agree, is a purely legal as opposed to political question. It is not asking the Court to do anything that it does not do on a daily basis. It is not inviting the Court to pick a leader or candidate A above candidate C. No. This is not about control of the party or whether a candidate was properly elected in an election. 21. Secondly, there was an insinuation by the Defendant that the Claimant would have exhausted internal conflict resolution mechanisms before coming to this Court. As ably stated by Justice of Appeal Nyakaunda Kamanga in Gerzerder Jeffery and others vs Peter Munthalika and others, MSCA Misc. Civil Application No 65 of 2023, the case of Bandawe vs Malawi Congress Party (supra) is indeed a solid precedent that intra-political party disputants must demonstrate an honest attempt to pursue a party's internal conflict resolution system. Again, | agree, as pointed out in Stowel Gondwe and Others vs Hon. Dr Lazarus Chakwera, President of Malawi Congress Party, Civil Cause 28 of 2018, members of political parties should not rush to the courts to circumvent their internal conflict resolution procedure. 22. However, in the present case, this internal dispute resolution mechanism was in reality not available to the Claimant to the extent that he had therefore no obligation to avail himself of the same. Article 65 of the Defendant’s Constitution provides that ‘all disputes regarding the interpretation of this Constitution shall be referred to the National Executive Committee (NEC) for settlement provided that the aggrieved persons may appeal to the Convention’. 23. The Claimant in the present matter is aggrieved with the resolution that was made by the Defendant’s NEC and the constitution refers him to the same NEC for settlement of his complaint. That would be tantamount to NEC sitting as a judge in its own case and | cannot find this properly fitting under any of the exceptions to the rule that says ‘no one should be a judge in his own case.’ 6|Page 24. On top of that, the facts reveal that there was an earnest attempt by the Claimant to resolve the issue using the internal structures of the party. He wrote the party’s leadership on three occasions but he did not even receive the courtesy of a response. The requirement that before moving the Court one must exhaust the internal procedures for resolving disputes in turn places a burden on duty bearers within the party to see to it that they are efficient and responsive. 25. The Defendant’s failure to respond to the Claimant’s letters becomes capricious and arbitrary which in turn fully justifies the involvement of the court (See Tikonze People’s movement vs electoral commission, Election Petition No 2 of 2019). It would be inherently wrong in principle for a party to frustrate the resolution of a dispute using its own internal processes and then later turn around seeking to benefit from its own capriciousness. There would in such a case be an estoppel against the party stopping it from raising such a defence as is being raised by the Defendant now. To allow it to raise a defence would be to allow it to benefit from its own wrongdoing which courts do not condone (See Democratic Progressive Party vs Attorney General, Constitutional Referral No. 3 of 2021). 26. Above all, the Claimant is also raising a constitutional issue to the extent that the issues that he is complaining about concerns the rights that he has under Section 40(1) of the Constitution of the Republic of Malawi. The relevant part of this Section provides that 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. (2)... (3) Save as otherwise provided in this Constitution, every person shall have the right to vote, to do so in secret and to stand for election for any elective office. 7|Page 27. AS we see above, the Claimant’s dispute is an issue which deals with his constitutional right under Section 40(1)(a). Section 46 (2) of the Constitution of Republic of Malawi is clear that where one’s right is violated or is under a threat of a violation, they must come to Court. The Constitution itself obliges every citizen to exercise the franchise through a political party. Therefore, political parties are indispensable conduits for the enjoyment of the right given by Section 40(3) to vote in elections (see also Ramakatsa and Others vs Magashule and Others [2012] ZACC 31 (18 December 2012) the South African Constitutional Court). 28. It is based on the foregoing observations that | decline to dismiss the Claimant’s matter herein on the ground that it is not justiciable as it is inherently political. My finding is that the dispute is in fact more of legal than political and this Court is actually the appropriate forum for its resolution. iii. Whether or not the Claimant _has sufficient interest in this matter 29. On this issue, the argument by the Defendant is that the Claimant is not its member and therefore lacks sufficient interest in this matter. The Claimant counterargues that he is and has been a member of the Defendant political party ever since he was born. In determining this issue of sufficiency of interest, this Court has therefore one question to answer viz, ‘is the Claimant a member of the Defendant political party? 30.1 must say that there were witness statements filed by both parties and the witnesses appeared before this Court to testified. The Claimant testified first and was cross examined by counsel for the Defendant. On the other hand, the Defendant paraded two witnesses, a Mr Zacheaus Jailos Kwayumkwayu, who happens to be the District Committee Secretary for Lilongwe rural East, and Mr Eisenhower Nduwa Mkaka, Secretary General for the Defendant. Both were also cross examined by Counsel for the Claimant. 31. It is common knowledge that the rationale for the requirement for one to show locus standi (sufficient interest) in a matter is to prevent mocking the court by 8| Page some overzealous busy bodies who may commence a matter on issues that do not concern them at all. 32. In Ferreira vs Levin NO and Others; Vryenhoek and Others vs Powell NO and Others (CCT5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (6 December 1995) it was stated as follows: Existing common law rules of standing have often developed in the context of private litigation. As a general rule, private litigation is concerned with the determination of a dispute between two individuals, in which relief will be specific and, often, retrospective, in that it applies to a set of past events. Such litigation will generally not directly affect people who are not parties to the litigation. In such cases, the plaintiff is both the victim of the harm and the beneficiary of the relief. 33. In the Attorney General vs Malawi Congress Party and others [1997] 2 MLR 181, the Court held that it had no jurisdiction to hear a person who does not have sufficient interest in an action he has brought to Court. 34. In United Democratic Front vs The Attorney General 1994 MLR 354, Justice Chatsika, as he then was, held that the plaintiff having failed to show that it had a legal right or substantive interest in the subject it was suing on had no locus standi to bring up the suit. 35. The locus classicus case on the subject is that of Civil Liberties Committee vs Minister of Justice and another [2004] MLR 55 @ 58 which explained what it means to have locus standi in private law as follows: The requirement is so basic that we sometimes take it for granted that a person who has no legal right or interest to protect would not commence an action in a court of law. Courts exist to conduct serious business. They deal with the issues affecting parties to an action. A person comes to court to commence an action because he believes that the defendant through negligent driving has caused personal injury to him or has 9|Page damaged his vehicle. A person may bring an action alleging that the defendant has failed to deliver to him goods the subject matter of the contract of sale or the defendant has trespassed on his land. Clearly, in the field of private law a plaintiff is required to establish locus standi which is usually defined by the defendant’s conduct which affects adversely the plaintiff’s legal right. 36. In the context of party membership, the High Court of Lesotho confirmed in the case of Moloi Ralentsoe & 4 others vs Motjoka Toloane & 7 others LSHC 215 CIV (01 September 2022) that proof of participation in party activities is sufficient proof of membership. 37. In the present case, the Defendant argues that the Claimant is not a member of the Defendant because his name is not available in the register of members of the Defendant at Nathenje where he claims to come from. Copies of the said register books are attached to the witness statement of Mr Mkaka as evidence in support of the Defendant’s argument. The Defendant also argues that according to Article 13 of its Constitution, the Claimant was supposed to apply to be a member but he did not do so. The Claimant however argued that the Defendant does not have a register. 38.1 have carefully considered the respective arguments by the parties in light of the adduced evidence on this issue of the Claimant’s membership. In the first place, | have closely looked at the so-called register books and | must say | have strong doubts of their authenticity. Each of these books has no title and does not even tell who its author is and when it was authored. What is appearing on top of them are names which are also indecipherable. It is not clear what these books are for. They are books that one cannot clearly distinguish from a mere note book used by a primary school class leader for writing noise makers. As it is, it may not necessarily be incorrect for me to think that such books could have just been prepared for purposes of this case. Surprisingly, when asked if the Secretary General’s name is in any of these books, it was revealed that it is not. Even if these could be valid documents, | doubt if all members of the Defendant are 10| Page registered and whether these registers could be regarded as actual and honest compliance with the Political Parties Act. 39. Secondly, we all agree that prior to 1993, there was one political party, the Defendant herein, and all adults by then were members of the Defendant. However, after the onset of multi-party democracy, Malawians have the liberty to form or join other political parties other than the Defendant. 40. In his argument, the Claimant stated that he has been a member of the Defendant ever since he was born. He has adduced evidence which shows that he was a member of the Malawi Young Pioneers branch before it was disbanded. Section 2 of the Young Pioneers Act defined a Young Pioneer as any member of Malawi Congress Party who was enrolled as such and registered in the register book of Young Pioneers. | pretty much know that this Act is repealed and has no any effect as of now. However, this fortifies the Claimant’s assertion that before 1994 he was indeed a member of the Defendant political party because by its definition, one would not become a Young Pioneer without being a member of MCP. 41. After 1994, there is indeed no evidence adduced to this Court to show that he resigned let alone joined another political party. The Defendant has heavily relied on Article 13 of its constitution. It must be noted under Article 70 of it, this constitution came into force in April 2018. Before that, the Defendant was still subsisting with its members under the old constitution. Article 13 then provides that a person who wishes to be a member of the Defendant should apply for membership to the branch office or any other office of the Party nearest to the place where he or she is ordinarily resident. However, a question arose in cross examination as to whether one can apply to join an organization to which he is already a member. This was answered in a resounding negative by the Defendant’s witness, a Mr Kwayumkwayu. This perhaps fortifies the Claimant’s argument that as already a member of the Defendant before coming into force of the current constitution in April 2018, there was no needed for him to apply to join a party he was already a member. 11|Page 42. Looking closely at Article 69(2) of the Defendant’s constitution, one gets an understanding of an impression that notwithstanding the repeal of the constitution of the defendant that was in force immediately before April 2018, anything that was done in terms of the repealed constitution would continue to subsist and be of force after April 2018. This, in my view, applies face to face with membership of the Defendant political party before April 2018. It is in view of this that | am inclined to agree with the Claimant that Article 13 is more applicable to outsiders or persons who were not already members of the Defendant before April 2018. 43. More interestingly, Mr Kwayumkwayu admitted in cross examination that he once contested for a position in UDF but there was no evidence adduced before this Court to show that he himself or anyone else applied let alone in writing to become the Defendant’s member. The long and short of it is that there is no evidence that all members that are joining the Defendant do apply. The Secretary General himself confirmed that he did not apply at all. This perhaps also fortifies the Claimant’s argument that, despite it being provided by the Defendant’s constitution, there are in actual sense no applications that are made when people are joining to become members of the Defendant. This applies to the issue of payment of membership fee which the Defendant’s witnesses gave contradictory statements. 44. Furthermore, there is credible evidence that the Claimant was deployed by the Defendant as its monitor in the 2019 Tripartite General Elections. This augurs well with the Defendant’s vision of, inter alia, safeguarding democracy and the dignity of Malawians irrespective of region of origin, religion or color as provided under Article 2. This evid#ence has not been contradicted. | have strong doubts if the Defendant party could really deploy a ‘stranger’ and a non-member to guard its vote. Surprisingly in its defence, the Defendant suggests that the Claimant can still contest for election as a member of the Defendant’s other structures at local, area, branch and district level. This surely sounds to be contradicting their denial. If he is not a member, how can a non - member be allowed to contest for any position in the party? This proposition advocated by the Defendant is indeed irreconcilable. 12|Page 45.ln Banques des Marchands de Moscou vs Kindersley [1951] 1 Ch 112, the liquidator of the claimant bank brought an action against the partners of a firm to recover certain monies. The partners issued a summons for an order dismissing the action on the grounds that the bank was non-existent. Notwithstanding that, the partners had sought to prove in the bank's liquidation. Evershed MR said this: 13|Page “The phrases “approbating and reprobating" or "blowing hot and blowing cold" are expressive and useful, but if they are used to signify a valid answer to a claim or allegation they must be defined. Otherwise the claim or allegation would be liable to be rejected on the mere ground that the conduct of the party making it was regarded by the court as unmeritorious. From the authorities cited to us it seems to me to be clear that these phrases must be taken to express, first, that the party in question is to be treated as having made an election from which he cannot resile, and, second, that he will not be regarded, at least in a case such as the present, as having so elected unless he has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his present action is inconsistent. These requirements appear to me to be inherent, for example, in Smith v. Baker and Ex parte Robertson. See also the speech of Lord Atkin in Evans v. Bartlam: "! find nothing in the facts analogous to cases where a party, having obtained and enjoyed material benefit from a judgment, has been held precluded from attacking it while he still is in enjoyment of the benefit. | cannot bring myself to think that a judgment debtor, who asks for and receives a stay of execution, approbates the judgment so as to preclude him thereafter from seeking to set it aside, whether by appeal or otherwise. Nor do! find it possible to apply the doctrine of election": and the speech of Lord Russell of Killowen: "The doctrine of approbation and reprobation requires for its foundation inconsistency of conduct; as where a man, having accepted a benefit given him by a judgment, cannot allege the invalidity of the judgment which conferred the benefit”. 46.|In another case of Express Newspapers Plc vs News (UK) Ltd & others [1990] 1 WLR 1320, a breach of copyright case concerned with mutual copying of news stories, the Court held that the claimant's resistance to judgment on the counterclaim was wholly inconsistent with its own claim and that on the basis of the doctrine of approbation and reprobation the claimant was not permitted to put forward two inconsistent cases. When giving judgment, Sir Nicolas Browne- Wilkinson VC put the doctrine in these terms: "The fact is that if the defences now being put forward by the defendants in relation to the “Daily Star’ article are good defences to the Ogilvy case, they were and are equally good defences to the claim by the "Daily Express” against "Today" newspaper relating to the Bordes claim. | think that what Mr. Montgomery describes as what is sauce for the goose is sauce for the gander has a rather narrower legal manifestation. There is a principle of law of general application that it is not possible to approbate and reprobate. That means you are not allowed to blow hot and cold in the attitude that you adopt. A man cannot adopt two inconsistent attitudes towards another: he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an inconsistent stance. To apply that general doctrine to the present case is, | accept, a novel extension. But, in my judgment, the principle is one of general application and if, as | think, justice so requires, there is no reason why it should not be applied in the present case." 47. This Court has been highly persuaded by the Express Newspapers case and as | think, justice so requires, there is no reason why it should not be applied in the present case. In the present case, it has not been disputed that the Claimant was used as a monitor for the Defendant during the 2019 tripartite elections and yet now the Defendant would like to deny him as its member. The Defendant can surely not be allowed to adopt these two inconsistent attitudes towards the Claimant. Having used him as its monitor it cannot thereafter be permitted to go back and deny him. It is in view of this that | strongly concur with the Claimant that the Defendant should be estopped from denying that the Claimant is its 14|Page member. Having used him as a monitor, it surely approbated and now cannot reprobate. 48. On account of the foregoing observations in respect of the issue of locus standi, | find that the Claimant has demonstrated sufficient interest in this matter and his case cannot be dismissed based on this ground. iv. Whether or not the resolution passed by the Defendant’s NEC is ultra vires and/or whether it is consistent with the rights that the Defendant members have under its constitution 49. This issue, | must say, is a matter of interpretation of the law governing the Defendant. In his submission, the Claimant has argued that the Defendant’s NEC has no authority to pass such a resolution which has the effect of amending its constitution and that the said resolution is inconsistent with his rights as a member and those of other members. 50. The Defendant on the other hand argues that the resolution passed by the Defendant’s NEC is consistent with customs and procedures of all matured political parties in an open and democratic societies and that the NEC acted within its powers under Article 35 (2) of the Defendant’s constitution. 51.1 wish to remind the parties that the whole purpose of interpretation of a written document is to establish the intention of those who framed it. In trying to do so, there are a number of principles that the Courts have established which are useful. First is the principle that a document must be read as a whole. The second one is the principle that while words used in a written document should be given their natural and ordinary meaning, this should be avoided if it results in an absurdity and defeats the purpose of the document; and thirdly, subsidiary legal instruments cannot contravene the law under which they have been made. The last principle is very crucial and relates to the case at hand. 52. In Centre for Development Policy (CEPA)& National Youth Network on Climate Change & Movement for Environmental Action (MEA) vs Southern Region 15|Page Water Board Misc Cause No. 9 of 2022, Mambulasa J, at paragraph 39 of the Judgement in reference to the case of Nseula v A. G held that: “It is an established principle of law that when construing a statute, it must be read as a whole. All provision that have a bearing on a particular subject matter must be brought to bear before one can decipher a meaning out of them.” 53. In Malawi Law Society vs Justice Banda (1987) MSCA 12 MLR, Mtegha J, as he was then, stated that: “lam fortified in so holding by the other principle of interpretation. It is that an act of parliament should be read as a whole. You cannot get out a section and interpret it on its own. The Act must be read as a whole.” 54. If words or phrases of a statute are ambiguous, or if one clause in it contradicts another, the statute must be construed as a whole, and some meaning must be given to every part of it per Lord Blackburn in Countess of Rother’s v Kirkcaddy and Co. Commissioners (1882) 7 App Case. See also Standard Bank Ltd v ML Luka and Others (2012) MSCA No 1 of 2012. 55. All the above cited cases were dealing with statutes but there can be no reason, in principle, why they cannot be used in the interpretation of a party Constitution, which amongst the members of the party is actually binding and has contractual force (See Hon. Gwanda Chakuamba vs. Dr. Peter Chiona Civil Cause No. 2563 of 2000). 56. In this case, to understand whether the Defendant’s National Executive Committee (NEC) has under its Constitution, the power to make the resolution that it purported to make, one has to look at several provisions of its Constitution. In terms of structure of the Constitution, membership of the party is dealt with in its Part |. This is the part which contains provisions dealing with how one becomes a member, classes of membership, the rights attaching to that membership and the loss of membership. Through a comprehensive reading of the Articles therein, it is quite telling that there are no limitations here on any 16|Page member contesting for a position in the party other than the limitation to be found in Article 11 (2) wherein it is explicitly provided that: ‘Unless the National Executive Committee otherwise directs, an honorary member shall not have the right to vote or be elected to the National Executive Committee’. 57. What this means is that for ordinary members of the party, the Defendant’s Constitution has not empowered the NEC to place any kind of limits on their right to vote or be elected into the NEC. In the interpretation of written law, to expressly provide for one thing is to exclude the other. The latin maxim for this principle is ‘expressio unius est exclusio alterius’. Put simply, once accepted as an ordinary member of the party, all rights which appertain to ordinary members of the party accrue to that member, regardless of how old that member is in the party and regardless of whether he has held any position. 58. The NEC in turn is then a creature of Part III of the Constitution which establishes organs for the management of the party. Among others, the National Executive Committee shall approve rules and regulations for the conduct of elections to the National Executive Committee provided that nothing shall prevent a member from contesting a lower office in the event that he/she fails to secure a higher office (see Article 35). This provision talks about approving rules which entails that such rules have already been made by someone somewhere and what NEC does is just to approve them. This, | must say, was not the case in the matter before me. 59. Article 32 is the provision which grants the NEC the power to make rules. However, in my view, the rules made under that provision must be subject to the Constitution of the Defendant. The power to make rules must be exercised for purposes of promoting the objectives of the party. They should contravene them. The same can be said about the rules that the NEC is empowered to approve under Article 35. They cannot have the effect of curtailing rights of members because if the Constitution had wanted to do this, it would have addressed the matter in Part | of the Constitution just as it did with honorary members in Article 11. 17|Page 60. As we have seen, it is no doubt that the rules which came by way of a resolution passed by the Defendant’s NEC are limiting the rights of members to participate in peaceful political activity of the Defendant. Clearly, by limiting the rights of the members of the party in a manner that it had, the NEC has by implication amended the Constitution, which power it does not have under the Defendant’s Constitution. 61. Reading the provisions of the Defendant’s Constitution in total, therefore, leaves one in no doubt that while the NEC has got powers to promulgate rules and regulations in general and for the holding of elections in particular, these powers can only be validly exercised if they are in line with what the Constitution provides. The rules cannot contravene the Constitution by taking away from members’ rights that the Constitution has given. NEC therefore had no business in passing an eligibility criterion which restricts the rights of ordinary members of the party to participate in NEC elections. Such a power is only available in respect of honorary members under Article 11(2). Any other interpretation would result in an obvious absurdity. And if anything, one would think that NEC is conflicted in this situation because it cannot impartially pass a resolution that bars other members from contesting to replace them. 62. In Attorney General vs Chihana (MSCA Civil Appeal 50 of 2000) [2001] MWSC 1 (31 December 2001) it was stated that: it is a principle of statutory interpretation that a construction of a statutory provision which would lead to absurdity or inconsistency or repugnancy must be avoided on the clear ground that Parliament cannot be taken to have intended that an absurd or inconvenient or anomalous result should flow from the application of a statute. That principle is supported by the case of Corocraft vs Pan American Airways (1969), Q. B. 616 in which LORD DENNING sitting in the English Court of Appeal said at page 655 - 18|Page “But the literal meaning of the words is never allowed to prevail where it would produce manifest absurdity or consequences which can never be intended by the legislature”. 63. The MCP Constitution is superior to a resolution made under it and any resolution which is contrary to it should be declared invalid. Granted that the Defendant’s Constitution does not have the equivalent of Section 5 of the Constitution which declares that the Republican Constitution is supreme and that any law that is inconsistent with it is invalid. However, the Constitution of the Defendant has Article 67 which provides as follows: ‘This Constitution, Appendices, rules and the regulations made under the authority of this Constitution shall be binding on members’. 64. Clearly, therefore, Article 67 says that the Constitution of the Defendant is binding on its members (who include the NEC members) and that any rules and regulations made by the party are under the authority of the Constitution. In substance, therefore, Article 67 is the ‘Supremacy of the Constitution’ provision. It would therefore follow that the NEC has no authority to pass the eligibility criteria which it did. 65. In their argument, the Defendant has further stated that the standard for the validity of its rules and regulations are the ‘practices and customs of mature political parties in open and democratic societies’. | wish to point out that nothing of any practices and customs of the so called ‘mature political parties’ has been shown to me. On the contrary, the standard to which its actions must be measured against is the Constitution of Malawi and the values that it stands for. To the extent that regardless of what the Defendant’s Constitution says, a rule or regulation promulgated by a political party in Malawi is bound to be struck down on the basis that it violates the values of the Republican Constitution. 66. This is clear from Section 3 (1) of the Political Parties Act which provides that: (1) The following principles shall, at all times, be adhered to in the implementation and application of this Act 19|Page (a) respect, by political parties in conducting their affairs, of fundamental principles and rights enshrined in the Constitution; (b) freedom by all persons to form a political party and to cease to be a member of a political party, and no person shall be compelled to belong to a political party; (c)_non-discrimination, in enjoyment of rights and_ privileges of membership of a political party to which a person is a member, on grounds of race, colour, sex, language, religion, political or other opinion. national, ethnic or social origin, disability, property, birth or other status or condition; and (d) gender equality which shall ensure that a political party comprise in so far as it is practicable with the principles of gender equality when appointing membership of party organs and committees. 67. The High Court in Bandawe case (supra), put the matter as follows: ‘Thirdly, a political party or its members will be allowed to have recourse to a court of law regarding disputes relating to activities of the political party where (a) the political party is in breach of its constitutive document or rules made thereunder, (b) the political party acts in breach of the rules of natural justice, (c) the political party or its members act in breach of the laws of Malawi, (d) the political party or its members conduct themselves in a capricious or arbitrary way’. 68. The South African Constitutional Court in the Ramakatsa and Others vs Magashule and Others [2012] ZACC 31 (18 December 2012), put the matter as follows: 20|Page ‘[16] | do not think that the Constitution could have contemplated political parties could act unlawfully. On a broad purposive construction, | would hold that the right to participate in the activities of a political party confers on every political party the duty to act lawfully and in accordance with its own constitution. This means that our Constitution gives every member of every political party the right to exact compliance with the constitution of a political party by the leadership of that party. [72] This right may be limited only on authority of a law of general application. But even then only to the extent that the limitation is reasonable and justifiable in “an open and democratic society based on human dignity, equality and freedom”. As no law of general application has been invoked to justify the limitation here, it follows that if any limitation is established by the appellants it will be unjustifiable. What this means is that constitutions and rules of political parties must be consistent with the Constitution which is our supreme law. [73] Section 19 of the Constitution does not spell out how members of a political party should exercise the right to participate in the activities of their party. For good reason this is left to political parties themselves to regulate. These activities are internal matters of each political party. Therefore, it is these parties which are best placed to determine how members would participate in internal activities. The constitutions of political parties are the instruments which facilitate and regulate participation by members in the activities of a political party. [74] It bears repeating that political parties may not adopt constitutions which are inconsistent with section 19. If they do, their constitutions may be susceptible to a challenge of constitutional invalidity’. 69. In a democratic society, ultimate power lies with the people. In a political party, ultimate power lies with the members sitting in an annual convention who elects members of the NEC. These members should have the widest options, therefore, of who to choose as a leader. If the members think that a member who has just joined the party and who has never held any position in the party is or would be a suitable leader for the party, as this Court takes judicial notice of the case with the election of Dr Lazarus Chakwera in 2013, then the members of the party should be allowed to decide. It does and cannot lie in the mouth of the NEC members to pass a self - serving resolution aimed at culling the field of contestants and possibly eliminating competition. 21|Page 70.|In the Basotho High Court decision of Moloi Ralentsoe & 4 others vs Motjoka Toloane & 7 others LSHC 215 CIV (01 September 2022), the Applicants had participated in what we would call primary elections in Malawi. The Party’s executive then purported to conduct interviews and replaced them with some other candidates. The Court struck down this decision holding it that it infringes the rights of the party members to participate in the affairs of the party and also that it was in violation of the principles of representative democracy which the Constitution of the Kingdom of Lesotho stands for. 71. Affirming that political parties must promote the principles and values of a liberal democracy, the Court said: [47] In the case of Pela -Ts’oeu (Supra) Peete J held the following to say: “[9] It is my firmly held view that being the pillars of democratic governance the Constitution of political parties must essentially have democratic practices, processes and procedures that support a democratic culture - otherwise it would be difficult to expect a political party with undemocratic tendencies and practices, to practice democracy once it forms a government. | can only command thus far and avoid being unwillingly drawn into a bottomless political quagmire!’ 72.\n the present case, this resolution in question is surely inconsistent with the rights of the members of the Defendant party which rights are also provided in the Republic of Malawi Constitution. It is constitutional right that every person has a political right to form, join, and freely participate in political activities and to recruit members for, a political party. They are free to make political choices (See Section 40(1) of the Constitution of the Republic of Malawi). 73. The impugned resolution by the Defendant is actually against its own aims and objectives which, under Article 3(9), is to promote, safeguard and advance the sanctity of human rights and civil liberties enshrined in the Constitution of the Republic of Malawi and international agreements and declarations. \|t also violates the values of the Republic of Malawi Constitution in that it robs members 22|Page of the party the widest and most generous enjoyment of the right to participate in the affairs of their political party by choosing leaders of their choice. 74. |t is a constitutional principle that power must have its source from the voters (See Sections 6 and 12 (1) (a) - (c) of the Constitution of Malawi. The Defendant should not treat its members who will attend the Convention as if they are babies. The Convention will be attended by adults. They should be left to decide on who their leader will be. If they feel that inexperience of a candidate or their newness in the party are disqualifying attributes, let it be to the members not to vote for such candidates. But NEC cannot impose this decision on them by culling some potential candidates out. This, | strongly believe, is not a democratic practice. 75. Furthermore, the resolution violates the rights of members of the party to participate in the activities of the party by restricting their right to run for office. It also discriminates against other members of the party. Why, for example, would a member who has been financially supporting the party for years but who has never held a position in the party be disadvantaged in favour of someone who has held some inconsequential position at area or branch level? There must be equality of treatment of members of the Defendant. In the Press Trust Case [1996] MLR 244 at pages 299 - 300 the Court stated as follow: ‘Equality before the law is a fundamental right. It is provided under our Constitution in section 20(1)... It is one of the fundamental principles of our Constitution... Equality before the law is a cardinal aspect of our law. Now our courts will, therefore, shoot down any Government action or law which results in unequal treatment before the law. The discrimination of persons in any form is proscribed and all persons should, under any law, be guaranteed equal and effective protection against discrimination on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, property, birth or other status. A law 23|Page which results in unequal treatment between the citizens of the land will be arbitrary. Government, the legislature or the executive branches, has authority and a constitutional duty to ascertain whether it is denying its citizens equal protection of the laws, and if that be the case, to take corrective steps (Associated General Contractors of California Inc vs City and County of San Francisco 813 F 2d 922). Government will be in violation of the fundamental right to equality before the law even if its action be in form of a statute or any form. | think it may be useful to re-state the scope of equal protection under the law. The purpose of equality before the law provisions is that, those who are similarly placed in society will be dealt with similarly by Government action. This is far from suggesting that, in its formulation or application of the laws, Government cannot classify persons. The equality before the law provisions in our Constitution prohibit impermissible criterion for classification or a classification arbitrarily used to burden a group of individuals (Hawkins v National Collegiate Athletic Association 652 F Supp 602). Consequently, while based on a classification, legislation may be justified if it meets a Government purpose. It will receive the closest scrutiny when it impinges on a fundamental right (Edelstein v Wilents 812 F 2d 1059). Equal protection essentially requires that all persons similarly situated be treated alike.’ 76. In the case under my consideration, the resolution clearly violates the members fundamental rights. The eligibility criteria also do not lend itself to any rational objective which would otherwise justify a limitation of rights of members. On account of the foregoing analysis, | find in favour of the Claimant and grant him all the reliefs sought in the statement of claim. 24|Page Conclusion 77. Having carefully considered the respective arguments by the parties in all the issues in dispute, this Court finds in agreement with the Claimant that the resolution passed by the Defendant’s NEC on or around 28" February 2024, which resolution restricts the rights of ordinary members of the party to participate in NEC elections, is inconsistent with the rights that members of the Defendant have under its own Constitution. The resolution also contravenes Section 40 of the Republic of Malawi Constitution. It is on that basis that | proceed to set it aside for being a nullity. 78. Costs normally follow events. However, considering the importance of the matter at hand, and as agreed by the parties, | deem it fit that each party should bear its own costs. Made in open court, this 6'" August, 2024 at High Court, Lilongwe oward Pemba Judge 25|Page