State and Another v Malawi Electoral Commission and 2 Others (Miscellaneous Civil Cause 11 of 2004) [2004] MWHC 112 (17 May 2004)

IN THE HIGH COURT OF MALAWI LILONGWE REGISTRY MISCELLEANOUS CIVIL CASE NO 11 OF 2004 BETWEEN THE STATE sis ceesep enc cene sn ces neue neneeae nines APPLICANT AND RIGTONE E. MZIMA .....ccccceseeseecneneesnsnees APPLICANT AND THE MALAWI ELECTORAL COMMISSION. ......cccsccncenseensenneneennenaas RESPONDENT CORAM HON. JUSTICE A. K. C. NYIRENDA HON. JUSTICE D. S. L. KUMANGE HON. JUSTICE E. J. CHOMBO Mr Katuya; Counsel for the Applicant Mr Chokotho; Counsel for the Respondent Mr F. Njirayafa; Court Interpreter Ms. C. Jalalsi; Court Reporter. RULING By Notice of Originating Motion for Judicial Review the applicant brings this action against the respondent seeking a number of declaratory orders and an order of mandamus. The applicant also seeks that an inquiry be made into damages pursuant to Order 53 rule 7 of the Rules of the Supreme Court. The origin of the matter are parliamentary and presidential elections that are just about to take place in this country. The applicant wants to contest in the parliamentary elections for Mzimba South East Constituency as a candidate for the People’s Progressive Movement political party. In order to be accepted as a candidate by the Respondent, a regulating body for general elections in this country, the applicant required satisfying a number of legal requirements in accordance with the electoral law of this country. Section 51(1)(b) of the Constitution provides as follows:- (1) A person shall not be qualified to be nominated or elected as a member of the Parliament unless that person — (b) is able to speak and to read the English language well enough to take an active part in the proceedings of Parliament. In furtherance of this Constitutional provision the Parliamentary and Presidential Elections Act, hereinafter abbreviated as P. P. E. Act, provides in Section 38 as follows:- “(1) Every candidate or his election representative shall, at the time of his nomination deliver to the returning officer — (b) evidence, or a statutory declaration by the candidate made before a magistrate or a commissioner for oaths, that the candidate — (ii) is able to speak and to read the English language well enough to take an active part in the proceedings of the National Assembly.” The applicant informs the court that on the 26" February 2004 he presented his nomination papers to the elections Returning Officer for Mzimba District. | Together with the nomination papers the applicant presented his academic certificates. In addition to his academic certificates, the applicant presented a statutory declaration in support of his ability to speak and to read English. Authenticated copies of the academic certificates are exhibited in court attached to his affidavit. The statutory declaration was sent to the Respondent, as will be explained soon, and therefore has not been exhibited. The academic certificates which the applicant presented to the Returning Officer were General Certificate of Education Examination Certificates, popularly abbreviated as GCE “O” Level Certificates obtained in 1970 and 1971. The 1970 certificate has two subjects, geography and pure mathematics. The 1971 certificate also has two subjects, English language and religious knowledge. The Returning Officer rejected the applicant’s nomination papers on the ground that the applicant did not possess certificates equivalent to the Malawi School Certificate Examination, (MSCE) as stipulated and required by the Respondent. The applicant was told that the Respondent has determined that prospective candidates for parliamentary elections should possess a_ full MSCE certificate with at least six subjects. The Returning Officer referred the applicant to his superior, the Regional Elections Officer (North), for verification of the certificates. Even there the applicant was not assisted because he was told to contact the Malawi National Examination Board. The applicant felt unhelped and appressed. He went back home. On the 4" of March 2004 the Returning Officer called for the applicant with his papers. When the applicant brought the papers all he was told was to leave the papers because on the 30" March 2004 the Respondent's officials were having a meeting and hopefully the applicant’s matter would be resolved then. Meanwhile the Officer completed a Rejected 3 Nomination Form, showing the applicant's papers had been rejected, and a Rejected Nomination Appeal Form, showing that the applicant was desirous to have his nomination papers reviewed by the High Court pursuant to Section 40 of the P. P. E. Act. which provides as follows:- (1) If after the close of the period allowed for the nominations but before the polling day, the Returning Officer is of the opinion that — (a) acandidate whose nomination paper has been lodged with him has not been duly nominated in accordance with this Act or is not qualified for election or has obtained nomination by fraud or false pretences; the returning officer shall forthwith notify such candidate or his election representative giving the reasons for such opinion, and, if so requested by the candidate or his legal representative, the returning officer shall draw up and sign a statement of the facts and his opinion based thereon and transmit it, together with the nomination paper and any certificate or affidavit which has been lodged with such nomination paper, to the Registrar of the High Court for hearing and decision by the High Court at the earliest opportunity; and a copy of the statement, shall at the same time, be delivered to the candidate or his election representative and to the Commission. The applicant came back to the Returning Officer on the 30" March 2004 to check for his papers and if at all a decision had been made. No decision had been made. The applicant was told by the Returning Officer to go and seek help from the High Court on his own and all the officer did was to send the applicants papers to the Respondent. The Respondent has also done nothing about the papers, effectively precluding the applicant from participating in the elections. In our legal system the remedy of judicial review is premised on a number of specific enactments and the general principle of checks and balances of decisions and actions of public institutions in a democratic legal order. We have also relied heavily on the general principles of English law in matters of judicial review summarized in Order 53 of the Rules of the Supreme Court. Section 76 of the Constitution, which empowers and charges the Respondent with the responsibility to ensure compliance with the provisions of the Constitution or an Act of Parliament in elections, stipulates in paragraph 5(a) that the High Court shall have jurisdiction to entertain applications for judicial review of the exercise by the Electoral Commission of its powers and functions to ensure that such powers and functions were duly exercised in accordance with this Constitution or any Act of Parliament. In context, judicial review is about checking decisions or actions of public bodies and for that purpose generally two conditions are necessary for a decision to be judicially reviewable. The first one is that the decision or action must be made by a public body. Secondly the public body must make a public law decision or take a public law action. We are constantly mindful of the danger of conscripting the functions of public offices by undue checks and stringent adherence of principle. In our view the standards applied by the courts in judicial review must ultimately be justified by Constitutional principles and only for the purpose of regulating proper exercise of public authority in a democracy. It arose in the instant case whether there is a decision or action at all that should be judicially reviewable. The Respondent thinks there was none and listening to counsel in that behalf, it is clear to us that the arguments were really grasping at straws. We will not ourselves be pedantic or overly restrictive on the type of functions that pass the test of being a “decision” or “action.” In our judgment there are two clear decisions that were made which the applicant principally refers to in his action. The first one was the decision to reject his nomination papers made by the Respondent's Returning Officer at Mzimba. The second is the decision by the same Returning Officer not to send the applicants papers to the Registrar of the High Court as obligated by Section 40 of the P. P. E. Act. Grounds for judicial review are numerous but there are three commonly used classifications. These are, illegality, irrationality and procedural impropriety. Illegality refers to decisions or actions that are ultra vires the relevant legislation see Padfield versus Minister of Agriculture. Fishing and Food (1968)AC 997. In this case a decision was held to be ultra vires the relevant statute because of a refusal to refer a complaint relating to milk price — fixing to a committee of investigation contrary to the policy and objects of the relevant statute. Illegality also refers to decisions or actions based upon an _ incorrect interpretation of the law; see Re Islam(Tafazzul)(1983)1AC 688. An incorrect interpretation of the law can in turn result into want of jurisdiction or excessive exercise of jurisdiction; see Rocal Communications Limited [1981 IAC 374 or [1980]2 ALL E. R 634. Irrationality is multifaceted and is reflected in any of the following conduct by a public authority:- (a) acting for an improper purpose (b) acting with bad faith (c) typically fettered discretion (d) improperly delegating functions 10 (e) reaching a conclusion that no body properly directing itself on the relevant law and acting reasonably could have reached(Wednesbury unreasonableness) (f) failing to take into account relevant matters or taking into account irrelevant matters, (g) abuse of power (h) acting in a disproportionate manner. Procedural impropriety is the most common and most ancient ground for judicial review. What is of concern here is the right to a fair hearing; the obligation on public bodies to comply with express procedural rules, and to avoid bias; see the cases of Ridge vs Baldwin [1964]AC4; Republic vs Lambeth London Borough Council, exparte N [1996] ELR 299 and Republic vs Inner West London Coroner, exparte Dallaglio [1994]4 ALL E. R. 139, respectively. 1 So much of the law and principles. It is at this point that we must cast our minds to the relevant facts in the instant case. The applicant’s nomination papers were rejected because of the Respondent's interpretation of Section 51(1)(b) of the Constitution which is in the same words as Section 38(1)(b)(ii) of P. P. E. Act. In interpreting these provisions the Respondent has put in place several options in order to give the provisions practical meaning in fulfillment of its mandate under Section 76(2)(b) of the Constitution. The Respondent's interpretation is contained in a news release dated 23° January 2004. The release is as follows:- NEWS RELEASE The Electoral Commission is informing the public that Nomination of candidates for the forth-coming General Elections will be held as follows:- Presidential Candidates: Wednesday 25" February 2004 Parliamentary Candidates: Thursday 26" February and 27" February, 2004 12 Those wishing to contest the Presidential election should have the following qualifications:- (a) (b) (c) (d) (e) Be registered voters Attain the age of 35 or above Be citizens of Malawi Be able to speak and read English language Be supported by at least 10 registered voters drawn from each district in the country. The Commission is further informing the public that those wishing to contest for Parliamentary elections should attain the following qualifications:- (a) (b) (c) (d) (e) Be registered voters Be 21 years or above Be Malawi citizens Possess full MSCE certificate, its equivalent or above Be supported by at least 10 registered voters from the constituency Those who do not have the required educational qualifications will be required to sit for English Proficiency Test which will be arranged by the Commission. Those who passed the test in the past will not be required to sit for another test. It is on the basis of this release that the applicant's papers were rejected. The eye catcher about this release is 13 that while candidates for parliamentary election are required to submit a full MSCE certificate, its equivalent or above, candidates for Presidential election need not. What this means is that this country needs better educated members of parliament than the first citizen, the President. We inquired from counsel for the Respondent what lies behind this weird distinction in the interpretation. It might be important here to point out that by virtue of Section 49(3) of the P. P. E. Act, Section 38(1)(b)(ii) of the same Act which sets out the qualifications for members of parliament also applies to presidential candidates. It is therefore very strange that the Respondent thinks the phrase “able to speak and read the English language well enough” means a full MSCE certificate for Members of Parliament and means nothing more with regard to Presidential candidates. Another eyesore about the Respondent's interpretation of the provisions is that it completely removes statutory declarations made pursuant to Section 38 (1)(b)(ii). The Respondent has then coined and added its own requirements in the implementation of Section 38 of the 14 P. P. E. Act and Section 76 of the Constitution. The first one is that an English Proficiency test shall be taken for those without evidence of an educational qualification. The second and alternative requirement, which is in issue in the instant case, is a full MSCE certificate. Any right thinking person would agree that this is a much higher requirement than what comes out of the words of the statutory provisions in question here. The other offensive aspect about the requirement of a full MSCE certificate is that while the Respondent would accept a candidate who has simply sat for an English Proficiency test, a candidate who has an MSCE certificate with five subjects including English would be rejected. Is this not an extreme absurdity? The Respondent has then preferred to add to the requirements, “any educational qualification equivalent _to MSCE certificate. We have in the instant case a GCE “O” Level certificate with English which has been rejected. Perhaps what is meant by “equivalent certificates” is yet full certificates of an examination of the level of MSCE. So again a GCE ‘O’ level certificate with four subjects including English language is not acceptable. What is ironical is that 13 on the basis of the certificates which he has, the applicant has been accepted to teach mathematics in Government Schools at Primary School level as well as Secondary School level. In our judgment the Respondent's interpretation of Section 51(1)(b) of the Constitution and 38(1)(b)(ii) of the P. P. E. Act is unreasonable in the Wednesbury sense; unreasonableness denoting a decision which is “perverse” and “absurd.” In Council of Civil Service Union vs Minister for the Civil Servide[1985]AC 374 Lord Diplock preferred to use the term “irrational” which he described as applying to a “decision” which is so outrageous in its defiance of logic or accepted moral standards that no sensible person who has applied his mind to the question to be decided could have arrived at it. We quite well understand the concerns and motive of the Respondent. The Respondent wants educated Members of Parliament. This is a noble aspiration to which we all ascribe. But surely this can not be done in the way the Respondent has gone about it. We believe ourselves that 16 the Respondent should work towards seeking amendments to the electoral law to provide for the specific qualifications required by the Respondent. Until that is done, we are afraid the Respondent has taken a leap unreasonably high in the interpretation of the provisions here in question. It is further our judgment that the determination by the Respondent requiring an MSCE certificate is not just unreasonable, but it is infact ultra vires the relevant Constitutional provisions as well as the relevant P. P. E. Act provisions. For these reasons and in our clear judgment the decision by the Respondent to reject the applicant's nomination papers was wrong because going by the provisions of the P. P. E. Act and the Constitution, the applicant was in fact more than qualified. We have also been referred to Section 40(1)(d) of the P. P. E. Act which we have cited earlier where the Returning Officer was under a duty to transmit the applicant’s nomination papers to the Registrar of the High Court. The 17 decision not to transmit the papers was a clear abdication of statutory duty on part of the Returning Officer. Looking at what went on between the applicant and the Returning Officer, we can almost say the decision not to transmit the papers was intentional and vindictive. The irregularity was therefore not just procedural, but verges on a deliberate wrong. It remains for us to make orders as may be appropriate. The applicant seeks a number of declaratory orders. We have considered each one of them closely and have settled for the following decrees which in our judgment are appropriate to our findings. (1) We declare that in making it a prerequisite that a candidate for parliamentary elections must have at least a full Malawi School Certificate Examination or its equivalent, the Respondent, not only unreasonably interpreted the provisions of Section 51 of the Constitution and Section 38 of the Parliamentary and Presidential Elections Act, but the Respondent also exceeded its jurisdiction. The Respondent’s determination in this regard as contained in its press release of the 23" January 2004 is therefore unlawful. (2) We declare that the decision by the Respondent’s Returning Officer for Mzimba, and therefore the Respondent, not to transmit the 18 applicants nomination papers to the Registrar of the High Court when requested to do so pursuant to Section 40 of the Parliamentary and Presidential Elections Act was a blatant violation of a statutory requirement. (3) We declare, in the circumstances, that the Respondent’s Returning Officer, and therefore the Respondent, erred in determining that the applicant did not have evidence of his ability to speak the English language well enough to take an active part in the proceedings of the National Assembly. (4) We make an order similar to an order of mandamus directing the Respondent to accept the nomination papers of the applicant. The applicant has sought an inquiry into damages. We are of the view that not much has been advanced to justify such an order. We can comfortably, however, make an order for costs of these proceedings in favour of the applicant which we do. 19 Pronounced in Open Court at Lilongwe this 17" day of May, 2004. D. LS. Kumange JUDGE CO E. J. Chombo JUDGE 20