Mwamba and Anor v Attorney General (SCZ Judgment 10 of 1993) [1993] ZMSC 76 (31 August 1993)

IN THE SUPREME COURT OF ZAMBIA SCZ Judgment No. 10 of 1993 HOLDEN AT LUSAKA Appeal No. 12 of 1993 (60) (Civil Jurisdiction) BETWEEN MAXWELL MWAMBA 1st Appellant AND STORA SOLOMON MBUZI 2nd Appellant AND ATTORNEY GENERAL ’ , • • , Respondent CORAM: Nguiube C. J., Bweupe D. C. J., Sakala, Chirwa and Musumali JJJ. S. ■ < 13th May, 8th July and 31st August, 1993 Appellants in person C. Jayawardene, Assistant Principal State Advocate, for the Respondent JUDGMENT Nguiube, C. J., delivered the judgment of the Court Cases referred to 1) 2) 3) 4) Re Nori's Application (1989) LRC (Const.) 10 Mustapha -v- Mohammad and another (1978) LRC (Const.) 16 & Charan Lal Sahu and others -v- Singh (1985) LRC (Const.) 31 Speaker -v- Attorney-General (1988) LRC (Const.)1 By their originating notice of motion the Appellants sought a declaration that the President acted unconstitutionally by appointing Mr. Vernon Mwanga as a Minister and Mrs Mirriam Wina as a Deputy Minister allegedly because a detainees' tribunal appointed by the former head of state in 1985 had found that they were implicated in dealing in mandrax, a dangerous drug. There was and there can be no dispute that the President has power to /2.. - ft *• nil appoint Ministers under Article 46 of the Constitution and Deputy Ministers under Article 47. It was also not in dispute that both Articles of the Constitution mentioned require that such appointments be made from the members of the National Assembly, which the two Ministers undoubtedly are. In addition, there were no questions raised alleging want of qualification or the existence of a disqualification on any of the grounds specified in the relevant part of the Constitution dealing with eligibility for membership of the National Assembly, questions which in any event would have had to have been raised in their own type of proceedings constituted for the purpose and as prescribed by law for .challenging an election. The appellants contended that rhe President was in breach of Article 44 (1). which reads - "As the Head of the State, the President shall perform with dignity and leadership all acts necessary'dr expedient for, or reasonably incidental to, the discharge of the executive functions of government, subject to the overriding terms of this' Constitution; and the ’ Laws of Zambia which he is constitutionally . ... obliged to protect, administer and execute." •' v ■■■ ■■ They argued that it was contrary to the requirement to perform with dignity and leadership to appoint as Ministers persons implicated in dealixjg in mandrax,, In a well considered and reasoned judgment, the learned trial judge (Mrs Mambilima, J) reviewed the natural meaning of the words "dignity" and "leadership’’ as found in the dictionaries and came to the conclusion that the framers of the constitution had in mind that when exercising the executive functions of Government, the President as Head of state and leader of. the nation must exercise those functions with authority, and honour inevitably earning the iaspect and the good reputation necessary for a Government. The learned trial judge also found to the effect that the adverse findings and opinions in the report of the tribunal of 198 5 could not be equated to a criijiinal conviction by a competent court, which conviction could disqualify if recorded within a period of five years before the nomination for election. She found that the President has an exclusive and absolute discretion to appoint Ministers from among the members of Parliament, pointing out that;, as the person' elected by the people and in whom th? executive power of the Republic is vested, /3"‘ * 1 0 necessary that he should exercise his ex?cn^|v« fungtiung *ixidepondently within a wide latitude, subject to the constitg-r III • 1 1 tion, and without interference from other organs of Government, courts included. Accordingly, she turned down the appellant's invitation to her court to question the exercise by the [President of his discretion to appoint the two Ministers, i a discretion which she found had been exercised within his constitutional powers. She refused to make the declaration ■sought, -- In this appeal, we have been requested to reverse the learned judge below. The appellants argued that it was wrong to say that the President enjoyed an unfettered discretion when Article 44 (1) which uses the word "shall" imposed a peremptory obligation on him to perform with honour and dignity. It was their argument that under this last mentioned Article, it was not enough that the Ministers in question were members of the National Assembly; but that the President should have had regard to the report of a"legally consituted tribunal; that he should have regard to the morals of society by looking for honesty and incorruptibility in persons to be appointed as Ministers; and I that it was not dignified to make the two appointments’ contending that this set a bad example especially for the children who would believe that it was all right to misconduct oneself morally and still hold a high public office. The appellants called upon the court to guard the morals and the moral welfare of the nation and to declare that the appointments were not an exercise of discretion with authority and honour clesigned to earn the respect and reputation necessary for a Government. All the arguments under the various grounds of appeal were to the foresaid effect. • : In response, the learned Assistant Principal 'State Advocate has argued that, because the President appointed the Ministers complained of in exercise of the executive.powers conferred upon him and in keeping with his functions as described in the Constitution, he could not be accused of having acted without dignity and leadership. It was his further submission that, had the President acted in breach of the Constitution, the remedy would have lain in an impeachment € and the example of President Nixon was cited. . With regard to the latter submission, we pause to make the observation that it is not always inevitable or even desirable that every breach or alleged breach, even the slightest breach, of the , l /4.. ■ « • (Mi Constitution by the President should be the subject of j r * impeachment in Parliament. As we will be pointing out in a short while, the exercise of Constitutional power is reviewable by the courts when matters can be put right without always rushing to try and remove Presidents from office. To continue with the summary of the arguments, learned counsel for the state submitted to the effect that the President could not properly be expected to delve into disqualifications not specified in the Constitu­ tion, such as alleged lack of honesty and incorruptibility on the basis of drugs related offences which had never been tried in a court of lav; and in relation to which no permanent stigma could attach after.jthe lapse of over five years. In any case - so the argument went - mere allegations could not override the will of the electorate who considered the two Ministers to be suitable representatives. The case of Hon. Kurt Waldheim was cited as an example when his people overwhelmingly elected him as President of Austria despite serious allegations by others concerning his alleged war record. Mr. Jayawardene pointed out that, unlike Britain, this country had a written Constitution and the President should not be faulted if he has not acted outside its provisions when exercising his discretion. Learned Counsel also made detailed submissions on the jurisprudence of moral law or natural law as well as on the executive power's ascendancy in a country practising separation of powers but in the view that we take, it is here unnecessary to provide a precis save to say that the burden of such submissions was that there had been no tenable challenge raised by the appellants. There was a further submission, with which we can not possibly agree, that Presidential acts are nor subject to judicial review under whatever circumstances. As will shortly appear, this startling . submission in sweeping terms can not be entertained in any constitutional democracy. Finally, there was a submission questioning the appellant's locus standi to bring proceedings to nullify someone else’s appointment especially that the . ■ I,-" concerned individuals have never even been heard. With regard to the two Ministers not having been heard, the point was. .well taken and we will revert to it later. However, on the question of locus standi, we have to balance two aspects of the.public /5.. B * interest, namely the desirability of encouraging individual . t i citizens to participate actively in the enforcement of the law, and the undesirability of encouraging meddlesome private "Attorney-Generals" to move the Courts in matters that do not concern them. For present purposes, we are;prepared to proceed, without coming to any firm conclusion on the point, ' •' • • on the footing that the appellants have a legitimate interest in the national leaders and the governance of this country. We should make it clear that four of us do not wish to come to any firm conclusion on the issue of locus standi but our brother Musumali, JS, would like to do so and adds his own view which will be read in a moment. We have given anxious consideration to all that has. been • submitted. It should be noted in the first place that, contrary to the appellants' submission, the learned trial judge did not • assert that .the exercise by the President of his discretionary executive power under the constitution was to; be entirely - unfettered. On the contrary,,because the exercise of constitutional power is reviewable by the courts in - . .r • proceedings challenging compliance and validity, -the Judge carefully examined the applicable provisions and found that the President did not appoint persons who were disqualified under the constitution. The learned trial judge also dealt with the arguments based on the report of the tribunal quite extensively and found that the report could not rank as a conviction for purposes of the disqualifications listed in the constitution and in this the judge could not be faulted. r We note that had the report been a conviction after trial by a competent court the same would have-been a sj>ent<,convition after the lapse of 5 years in terms of Article 65 (l)' (f). Without losing sight of the argument based on morality within Cabinet but by analogy with a conviction, it is clear that the framework of the constitution does not intend to attach a permanent stigma or to disqualify in respect of spent convictions. It is also not necessary to dwell on the surreptitious circumstances under; which the report was finally released. For purposes of the arguments related to disqualification under the constitution, we have visited some authorities and they show that in many commonwealth countries with a written constitution like ours, the courts have not shrunk from reviewing the validity of an /6.. * - fl - • • («3) • appointment made by a Head of State in the exercise of an executive discretion and where a person not qualified or i disqualified has been appointed, the appointment, is liable to be struck down: For example, see Re Nori’s Application a decision from the Solomon Islands. In that case, the court declared as invalid the appointment of the Governor-General by Her Majesty the Queen as the Head of State because he still held a public office and was, therefore, disqualified at the time of his election and appointment to this political office, contrary to the releveint provision cf the constitution. It was held that the power to appoint the Governor-General was subject to the person appointed bgjhig qualified and since the High Court had jurisdiction to determine whether any provision of the constitution had been contravened, the court clearly had jurisdiction to inquire whether the power to appoint a Governor-- General had been^validly exercised. Another example is the Malaysian case of Mustapha, -v- Mohammad and another where, in interpreting a written constitution the court affirmed its power and duty to determine whether a decision had been made in (2) accordance with constitutional requirements. The court in that case held that the power conferred on the Head of State- by the relevant article of the constitution to appoint -a-Chief Minister was a constitutional power and that while the propriety of a decision by the Head of State was not open to judicial review, the court could determine whether the decision contravened or exceeded any constitutional provision. Accordingly, the court invalidated the purported appointment of a Chief; Minister who had procured his own appointment by intimidating .the Head of State at a time when the official results of the general election were yet to be declared. • t': I ' ■ ' ' i.' V . . What emerges from the examples is that the courts have not been wanting in their defence of the written constitution when questions arise as to the validity of the exercise of a constitutional power, such <is the power to make an appointment. In the case at hand, the appellants did not allege any specific disqualification to be found in our constitution but.they make a general proposition based on morality that unsuitable persons ■ ought not to be appointed to ministerial positions. The appellants cited a statement at page 106 of the third edition of "Cabinet. Covernment" by Sir Ivor Jennings who wrote - w 7 M (90) "The most elementary qualification demanded of a minister' is honesty and incorruptibility. It is, however, necessary not only that he should possess this qualification but also that ho should appear to possess it". The examples that Jennings goes on to give do not show that the issues were litigated? on the contrary, they were resolved in Parliament where some of the ministers pronounced against even resigned their seats on principle and on moral grounds In the case at hand, since the disqualification alleged is not one of those spelt out in the law, the question has exercised our minds whether an appointment can be challenged on the ground that the person appointed is not a suitable person for holding that office. The Supreme Court of India dealt with a somewhat similar problem in Charan Lal Sahu and others -v- (3) Singh . The petitioners challenged the election of the ^President of India and a major ground was that he was not a . ■■■ . i i” suitable person" for holding the high office of President. The Petitioners gave their own reasons for so alleging" but . . \ unsuitability was not one of the grounds specified by the relevant law for making a challenge. The court said, at page 40 - , ■ _ "Apart from the legal position that the rights flowing out of an election are statutory and not common law rights, it is impossible to conceive that any;.:court of law can arrogate to itself the power to declare an election void on the grouiid that the returned candidate is not a suitable person to hold the office to which he is elected. Suitability of a candidate is for the electorate to judge and not for the Court to decide. The Court cannot substitute its own assessment of the suitability of a candidate for the verdictB^turned by the electorate. The verdict of the electorate is a verdict on the suitability of the candidate. "Suitability" is a fluid concept of uncertain import, yThe.b is, or has to be assumed to be, its solejudge. Were the Court to exercise the power to set aside an election on the ground that, in. its opinion, the returned candidate is not a suitable person for the office to which he is elected, the statute will stand radically amended so as to give to the Court a virtual right of veto on the question of suitability of the rival candidates. And then, an unsuccessful candidate will challenge the election of the successful candidate on the ground that he is more suitable than the latter. That is an impossible task for the Courts to undertake and indeed, far beyond the limits of judicial review by the most liberal standard." /8.. r » - It seems to us that a similar attitude should be adopted in our case where the Court is in effect being invited to import an additional disqualification into the law, namely unsuitability on moral grounds, a concept guaranteed to defy judicial definition let alone application. We consider that the learned trial judge was on firm ground and dealt with this issue quite properly when the judge considered only those disqualifications set out in the law. J ' - • • We must now comment on the form and direction taken by these proceedings. Although the motion ostensibly questioned whether there was dignity and leadership in the exercise by the President of his constitutional power to appoint the two Ministers, the blows were landing on two individuals who have never been heard and who stood to be condemned and stripped of office unheard. No Court of justice can be called upon to make a declaration, which is always a discretionary remedy, when obvious injustice would be visited upon persons who have not been heard, but who would be directly affected by a declaratory order in proceedings to which they have not been made parties. ;In the normal course, for example under Order 53 of the Rules!of the Supreme Court (See 1993 White Book), the person alleged to be-- • acting in apublic office for which he is not qualified would be the respondent in Judicial review proceedings to oust him under. " the procedure which has replaced the old Quo Warranto proceedings. (4) In Speaker -v- Attorney-General a case from Kiribati, Maxwell, C. J. identified at page 7 certain general principles which the Courts have evolved to guide them in exercising their.discretion to grant a declaration and one of them he-expressed-as follows: "that the court will not make a declaratory judgment unless all the parties interested are before it, even if a competent defendant is before the court, as in this case, the court will decline to make a declara­ tion affecting the interests of persons who are not before it". J i- ■■ ■ We respectfully share the learned Chief Justice's view. The facts of the Kiribati case, briefly stated, were that the Speaker of the legislative assembly (called the Maneaba ni Maungatabu) applied by an ex-parte originating summons (the Attorney-General being joined by court order as defendant) challenging the eligibility to assume office of the person /9.. m 0 m (?U re-elected as President and Head of State (known as Beretitenti), since the constitution limited the number of presidential terms. The Speaker was unsuccessful for a number of reasons but for present purposes, our interest is limited to the principle [already discussed. * It follows from the foregoing that the learned trial judge was not in error when she refused to make a declaration. The appeal is unsuccessful but since it raised an important issue of general interest, each side will bear its own costs of this appeal. Musumali, JS - I had read the judgment which the learned Chief Justice has just delivered. I agreed with it on all the points raised and discussed therein except on the wording of the sentence which deals with the locus standi of the appellants in this case. In dealing with that issue the learned Chief Justice has said and .1 quote: ".... on the question of locus standi, we have to. balance two aspects of the public interest, namely the desirability of encouraging individual citizens to ■ participate actively in the enforcement of the law, and the undesirability of encouraging meddlesome private "Attorney-Generals" to move the counts in matters that do not concern them. For present purposes, we are prepared to proceed, without coming to any firm conclusion on the point, on the footing that'the appellants have a legitimate interest in the national leaders and the governance of this country." With due respect to the learned Chief Justice and my other brothers, I am of the considered view that to decide on this is to be a little equivocal. It is a little issue in this way the citizen will not firmly know whether equivocal because she/he has locus to sue or not to sue in this kind of case. My firm view is that a citizen has a right to sue on constitutional issues unless the constitution itself explicitly or by necessary implication has taken away that liberty. For instance in cases of human rights of the person who "alleges that any of the provisions of Articles 11 to 26 inclusive has been, is being or is likely to be contravened in relation to him...." has locus. /10 /IO.'. i „ ! • * . - 10 - (6$) • ' • 'V. There may be other provisions in the constitution where only such firmly interested persons may sue on them. In the absence of such provisions in respect of constitutional provisions, a citizen has liberty to come to the High Court, and on appeal, to this court and seek redressThis is the position, I am sure, in all countries with constitutions, written or hot. This freedom is particularly.important • ’ • ! • ‘ . T a in democratic countries as it is one Way of enabling a citizen to have a say in the governance of his country. So the citizen needs to know that he enjoys this right, whether of not she/he is a meddlesome type. M. M. S. W. Nguiube 5 ■CHIEF JUSTICE B.] Bweupe DEPUTY CHIEF JUSTICE ■j । j '' ' E. L. Sakala SUPREME COURT JUDGE ■ 7 / ♦. "i 1 V V" • ' /* • A ■ : r ■■ - K . ■ D. K. Chirwa SUPREME COURT JUDGE - "•' ' r; : . ) C. M. Musumali SUPREME COURT JUDGE