Kapito v AG (Civil Cause 1980 of 1994) [1995] MWHCCiv 13 (27 September 1995)

I \ IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO.1980 OF 1994 ESTATE OF FLORA KAPITO . . . . . . . . . . . . . . . . . . . . . . . . PLAINTIFF TIIE ATTOHNEY GENBHAL •••••.•••••••••••••••••••• UEFE;NUAN'l' ANU CORAM: R. R. Mzikamanda, Senior Deputy Registrar Mr Mhone for the defendant RULING This is a summons un der \Jcdcr 14i\ of The Suµreme Court Practice Rules . It is to determine a prc.lju1inar·y yuestion of law namely whether Sl38 of the Const.i tution ueprj ves a cj tizcn of his or her right of recourse to the orui nary courts within the period of limitation. Mr Mho nc aryues Ll1at so long a citizens c.laim is within the statute of lindtation, the riyhL of that citizen to have rer:ou.rse to the courts cannot be taken away by another law even j f the same is within the constitution. Ser:tion 103(3) of the Constitution of the Republ ic of Malawi defines the powers and jurisdiction of the courts anct µrovides them with exclusive jurisdictjon. The effect of Sl3U of the Constitution is to take away the exclusive jurisdiction of the r:ourt. Section 41 (2) of the Constitut ion guarantees the .right of the citizen to have acr:ess to any court of law or any other tribunal for the ,-H,% cown 7 I --,BRAR 'y !4......:. ~ - - - - - - ~ ...a. adjudication of his or he r matters. Hr- Mhone asks this court to rule that a tribunal is not. a cons ti t-.utjona.l court and therefore cannot be set up to exclude the jur-isdiction of the courts. Mr Mhone argues that despite t.hc existence of Sl43 of the ConstituUon which provides for a waiver of the limltaUon period the same can only be Jone on equj table grounds if the court sees fit. Parliament lnlen<..ied to .ljrnit the quest.ion of waiv(~rs to cases which had µassed their limitation )?eriod parliament must have been uware that for a case within the limitation period they could either commence in the ordinary court or in the tr i buna J s . l t would th(~re be wrong for the state to deprive eligible l.i Llyants of the right to commence the action in thjs court when they have been properly brought. The National Compensation Tribunal is not in existence yet and will only be set up in future Mr f'. Jhone subnd ts that it is an assauJ t on tile independence of the ju<.llciary anJ that if that was specjfic intention of Parliamc~nt then it should have specif l cally uprooted the s ta tu r_e of l.i nil La ti on before the 'cons ti tu ti onal courts. HoJ dl ng that the Na ti onal Comµensa ti on 'l'ribunal excludes this court fro111 µror.ecding in this matter would be to flout the very provisions of SlU3 of the Constitution which states that. LlLi s r.ourt and tile Supreme Court have exclusive jurisdir.tion over all matters and no pararel courts shall bet set up. The Nat ion al Comµensa ti on Tri bun al can have its decisjon come un de r judicial review jn terms of Ser.tion 142 of the Constitution. Therefore the National Cowµensation 'l'ribunal cannot be a court . It is a judicial forum inferjor to the Cons ti tuti onal Court . He urges the court to find that individual rjghts guaranteed under the Hcpublic of Malawi Constitution and to which access is guaranteed under S141 of the Constitution through the ConstituLional Courts cannot be taken away µar t.icu.lary when they ace w.i thin the Statute of Li rnj ta ti on by setting up a tribunal even if that tribunaJ. is set uµ under the very same constitution. - 3 - Mrs Chikaya Banda for the Attorney General contends that what Mr Mhone is doing i s to qucs tion the Vdl i d.i ty of Sec ti on 138 of the Constitution in so far as it bars legal proceedings in these courts. seeking judicial review of an Act of Parliament. She cited the case of Reg.ina v Jordan 1967 Criminal the defendant was sentenced to 18 months Law Review 483 where .is He impr .i sonment with hard .labour for an of fence under the !{ace Relations Act 1965 of England. The defendant argued that the l-\c t was invalid as it curtailed freedom of speech. The Court ruled that Parliament was Supreme and there was no court to question the validity of .its Act. Mrs Chikaya Banda argued that Section 138 of the Constitution renders these proceedings illegal in the courts if commenced after the Constitut.ion. Whether it deprives citizens of then rights is for Parliament to rectify. If parliament felt that there should be a tribunal to hear such cases as the present then no person can come to this court and question those powers. It is not for the Attorney General to answer why the setting up of the National Con~ensation Tribunal is postponed. S41(2) prov.ides that every person shall have access to any court of law and goes on to say 1 or any other tribunal with jurisdiction for final settlement of legal issues." Mrs Ch.ikaya Banda argues that a person has the right either to institute proceedings in a court of law or where there is a specific provision to a tribunal. There is no question of interfering with the .independence of the judiciary. S142 of the Constitution makes it clear that the National Compensation Tribunal is neither a court of superior nor one of concurrent jurisdiction with t.he . High Court. Sect.ion 138 confers a special duty on the National Compensation Tribunal as far as cases of abuse of power or office arc concerned. Only when the National Compensation Tribunal feels that it is in the interest of justice that this matter c:an be remitted to the H.igh Court and the High Court can legally sit and hear the matter will it relinquish its jurisdiction. It is very difficult to envisage a · s.i tuation where a citizen can be denied his right of legal redress for the simµle reason that he was following - 4 - procedure laid down by Parliament. Mr Mhone' s conr.erns are uncalled for. She asks this court to attach simple and ordinary meaning of the words of Section L38 of the Constitution "Judges must apply the law and are bound to follow the decisions of the legislative as exµressed in s ta tu tes or Ac ts of Parliament." The application is un f ounded and only wishes to mislead the court and should be dismissed. Mr Mhone has referred to a number of Arner ican constitutional Law cases. He argues that the Republic of Malawi Constitution is a hybrid of the British Constitution and American Constitution. Therefore there should not be rigid application of principles of Constitutional interpretation applicable in Britain. By this argument I am inclined to believe that Mr Mhone has gone to the root of the problem we have in this matter i.e how best to interpret our Constitution in order to give full effect to the basic principles in corporated in it. Indeed S11(1) of the constitution recognises that the Republic of Malawi Constitution is unique. It provides "Appropriate pri nciples of interpretation of this constitution shall be developed and employed by the courts to reflect the unique character and supreine status of this constitution". The difficulty, it seems to rne, is to reconcile the provision of Section 103 (2) and Section 138 (1) of our constitution. Section 103(2) of the Constitution provides. "The judiciary shall have jurisdiction over all issues of judicial nature and shall have exclusive authority to decide whether an issue is within its competence" - s - Section 138(1) of the Constitution provides: "No person shall institute proceedings against any Government in J_Jower after the commencement of this Constitution in respect of any alleged criminal or civil liability of the Government of Malawi in power before the commencement of this Constitution arising from ab~sc of powe r or office save by application first to the National Compensation Tribunal which shall hear cases initiated by persons with sufficient interest." lt is to be observed that Section 1U3(2) of the Co nstit u ti o n g i ves the courts jurisdicti .. on in all matters of a j ud icial na t ure. It may be argued here that while the ju d i ciar y ha s jurisdiction over all issues of judicial nature it does n o t have e xclusive jurisdiction over all matters of a judir.i al n atu re b e cause the sec ti on does not say so. What the sec ti o n s a ys is that the judiciary "shall have exclusive authority t o d e cid e whether an issue is within its competence". If this an al ys is i s t aken to its extremes it may be argued that the jud i c ia ry may h ave its juridisction over all matters of a judicial na t u re wit h other bodies such as the National Compensation Tribun al . This r easoning may find support in Section 142(10of the Cons ti tut i on wh i ch provides. "The High Court shall not be excluded from hearing application for judici.al review of the decisions of the Tribunal nor shall a determination by the 'l'ribunal be a bar to further criminal or civil proceedings in an appropriate court against - - a private person for the duration of the existence of the fund." If this approach is preferred then it may be said that the National Compensation Tribunal cJoes not oust the jurisdiction of courts. What is obvious is that the Na ti onal Compcnsati on Tribunal is not part of the jucJiciary. lt would be interesting to know whether it is not concurrent with the courts and whether that is consistent with the provisions of the constitution (See S103 (3) of constitution. Un the other hand if S103(2) of the constitution .is read as a whole and understood to mean that the courts have exclusive jurisdiction over all matters of a judicial nature and exclusive authority to decide whether an .issue is within .its competence then Sect.ion 138(3) of the Constitution becomes a fetter on the exclusive authority of the court. That Sect.ion provides "Notwithstanding subsection (1), the National Comµensation Tribunal shall have the power to remit a case for determination by the ordinary courts where the National Compensation Tribunal is satisfied that the Tribunal does not have jurisdiction, or where the Tribunal feels it is in the interest of justice to do so." It would be interesting if the ordinary courts would refuse to hear a matter remitted to it by the Tribunal on the grounds that the Tribunal feels it is in the interest of justice to do so. It would appear that what the Tribunal would be doing is to decide whether a matter is within its colllpetence or within the competence of the ordinary courts thereby usJrping the exclusive authority of the ordinary court to decide whet.her the matter is wl. thin its competence or not. Again Section 138 ( l) of the Constitution see1n to suggest that the National Compensation - 7 - 1' r i bun a J. i s th c f i rs t p J. ace to go to o 11 rna t Le.~ rs w i th i n i ts amoit. The words "abuse of power or off.ice" arc not defined and this may be a source of uncertainty on t.l1c J?art of claimants. In those circumstances woultl .it · be correct lo shut out a claimant from the court of law':' The answer seems t.o be in the negatjve. Section 41(2) of the ConsL.itution is clear. lt provides that: "Every person shall have acc:css to any r.ourt of law or any other tr ibuna·l with jut· j su.i c Lion for final settlement of l eya.1 .issues" The idea of a Na ti onitl Co111µensa ti on 'l'r i bunal is a very noble one but jt shoulci not be u sed to suppress human rjghts by cielaying redress or providing less ll1an adequate redress because the funds appear depleted . l t hus been submj t.ted that the Na ti onal Compensat .ion Tribunal re111<1i ns unf unc tj onal more than a year a£ ter i l was suµposc~d to ue f unc ti ona.l.. No body hus an j dea how to proceed. Yet the 'I'd bunal j s supposed to last 10 yec1rs throughout whjch perjocJ jt must be func:tjonal. lf the submission is correc:L cl a imants must already have been dcprjvcd of a whole year wj thin whj ch they shou] d have lodyed their c:lai rns. To the extent tha t Scr. Uon 138 of the ConstiluUon oust or purports to oust the j ur isc.ii c U on of the ordinary c:our ts it rnust be invalid. Section 11(4) of the constituUon provides that: "Any luw that outs t s on purports to oust the jurisdiction of the courls Lo entertain matters pertaining to t.his c:onstit-uL.ion shall be invalid" - 8 - ln my v.iew a contrary approach would breed absurd results. It seems to me that the ord.inary courts should be left as independent as the Constitution .intended them to be. MADE in Chambers this 27th <Jay of September, l99S. EPUTY REGISTRAR