State v Malawi Electoral Commission Exparte Salimu (Judicial Review Case 30 of 2016) [2016] MWHC 750 (26 September 2016)

The State v The Malawi Electoral Commission ex-parte Ambokire Bless Salimu Kenyatta Nyirenda, J. a ni Dg ee ese ee ese REE rcs JUDICIARY IN THE HIGH COURT OF MALAWI aaa PRINCIPAL REGISTRY JUDICIAL REVIEW CASE NO. 30 OF 2016 BETWEEN: THE STATE -AND- THE MALAWI ELECTORAL COMMISSION ............0.+00 RESPONDENT EX-PARTE: AMBOKIRE BLESS SALIMU ............csssescoees APPLICANT CORAM: THE HONOURABLE JUSTICE KENYATTA NYIRENDA Mr. Salimu, of Counsel, for the Applicant Ms. Silungwe, of Counsel, for the Respondent Mrs. A. Mpasu, Court Clerk RULING Kenyatta Nyirenda, J. Introduction The Applicant, one Ambokire Bless Salimu, has made an ex parte application under O. 53, r.3 of the Rules of the Supreme Court (RSC) to obtain leave of this Court for him to make an application for judicial review against the Respondent in respect of a certain decision said to have been taken by the Respondent regarding conduct of elections [Hereinafter referred to as the “application”’]. Ordinarily, applications of this sort are dealt with in summary fashion, that is, the judge may determine the application for leave without a hearing and the judge need not sit in open court for that purpose: see O. 53, r.3(3) of RSC and State and others; Ex parte Ziliro Qabaniso Chibambo [2007] MLR 372. However, having looked at the nature and complexity of the application, I perceived that the best way to deal with it was by way of inter-parte hearing. I, accordingly, ordered an inter parte hearing. On the set hearing day, the Applicant addressed me at lengthy in support of 1 The State v The Malawi Electoral Commission ex-parte Ambokire Bless Salimu Kenyatta Nyirenda, J. the application and Counsel Silungwe, on behalf of the Respondent, responded by arguing at some lengthy too in opposition to the granting of the application. The Case of the Applicant The decision which the Applicant seeks to be judicially reviewed [hereinafter referred to as the “challenged decision”], the reliefs being sought and the grounds on which reliefs are sought are contained in the Notice of Application for Leave to Apply for Judicial Review, otherwise known as “Form 86A”, as amended on 20" April 2016. Form 86A states as follows: THE APPLICANT AMBOKIRE BLESS SALIMU SNR Judgment, Order, decision or _ other proceedings in respect of which relief is sought. The decision by the Respondent to conduct election in Malawi before electoral reform that would guarantee that the electorate got what those seeking public office through elections promised them during the election process. The current status quo has ended up into legal absurdity and unreasonableness in the Wednesbury sense and amounts to an abdication of the Respondent’s constitutional and statutory authority. Relief Sought 1. Alike Order to Mandamus ordering the Respondent to refer the Parliamentary and Presidential Elections Act (cap 2:01 of The Laws of Malawi); The Political Parties (Registration and Regulations) Act (Cap 2:07 of the Laws of Malawi) and The Local Government Elections Act to the Malawi Law Commission for review so that the legislation specifically provides that those seeking election to public office through universal suffrage as envisaged by the Constitution of The Republic of Malawi are bound by their electoral promises. 2. A declaration that the holding of elections by the Respondent under the current electoral construct that does not legally bind those elected to public office to their election campaign promises is inconsistent with section 6 The State v The Malawi Electoral Commission ex-parte Ambokire Bless Salimu Kenyatta Nyirenda, J. of The Constitution of the Republic of Malawi 3. An Ex-parte Order of Interlocutory Injunction, to come up for further consideration after 14 days of the granting of leave for Judicial Review restraining the Respondent from conducting elections in Malawi until the determination of these Judicial Review proceedings. Name and Address of Applicant’s Legal | Messrs Salimu and Associates, 56 Glyn Jones Practitioners Road, on the road to Namiwawa Opposite NICE offices, P. O. Box 31427, Chichiri, Blantyre 3. GROUNDS ON WHICH RELIEF IS SOUGHT i as Section 75 of the constitution establishes the Respondent. Section 76 (2) of The Constitution provides that: “The duties and functions of the Electoral Commission shall include (d) to ensure compliance with provisions of this Constitution. Section 6 of the Constitution provides that: “Save as otherwise provided in this Constitution, the authority to govern derives from the people of Malawi as expressed through Universal and equal suffrage in elections held in accordance with this Constitution in a manner prescribed by an Act of Parliament”. [Emphasis supplied] And section 76 (5) (a) provides 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 accordance with this constitution ......... Section 76(2) (d) above therefore places a mandatory Constitutional obligation on the Respondent to ensure that elections in this country are in all aspects in compliance with the Constitution. The same Constitution that expressly provides in section 6 that the authority to govern comes from the people of Malawi. We currently have a situation where the Electoral Commission is conducting, be it presidential, Parliamentary or Local Government using legislation that does not place any direct legal obligation on those seeking public office through such elections to fulfill the promises they make to the people from whom their (the Public Officers’) The State v The Malawi Electoral Commission ex-parte Ambokire Bless Salimu Kenyatta Nyirenda, J. authority to govern comes from. Both the Presidential and Parliamentary Elections Act and the Political Parties (Registration and Regulation) Acts do not in that regard comply with section 6 of the Constitution. 7. The only way the Respondent can comply with section 76 (2) (d) of the Constitution is to refer to the Law Commission for review the three pieces of legislation so that it becomes an express legal obligation on the part of those seeking to govern the people of Malawi to fulfill their election campaign promises. 8. There is no alternative remedy for the Respondent. Suing a particular political party in respect of its campaign promises would be injusticiable at common law and thus defeating section 6 of the Constitution because unlike in the UK where the Prime Minister is chosen by those in majority in Parliament in Malawi we have a direct vote. Form 86A is supported by an Affidavit Verifying Facts on which Leave for Judicial Review is being sought [hereinafter referred to as the “Applicant’s affidavit” ]. For reasons which appear presently, it is necessary to reproduce the Applicant’s affidavit in extensio: “7. THAT I am an adult citizen of the Republic of Malawi. Now produced and shown to me marked “AB1” is a copy of my passport. 2. THAT I am also a registered voter. Now produce and shown to me marked “AB2” is a copy of my Voter Registration Certificate. 3. THAT the Respondent is constituted under the Constitution of the Republic of Malawi and is mandated to conduct elections in compliance with the Constitution and any Act of Parliament. 4. THAT section 6 of the Constitution expressly says that all authority to govern derives from the people yet the legislation under which the Respondent has continued to conduct elections does not bind those seeking election to public office to their campaign promises. 5. THAT I repeat the 4" paragraph hereof and note that for example the political party that is currently in Government, Malawi, the Democratic Progressive Party (DPP) won the tri-partite elections on the promise that it shall reduce the powers of the president in respect of the appointment of the Director and Institutions like the Anti-Corruption Bureau. Now produced and shown to me marked “AB3” is a copy of the DPP manifesto. Please look at pages 12, paragraph (xiv) and 27, the last sitting of parliament the party used its majority members in parliament to defeat a Private Members’ Bill that sought to amend the corrupt practices Act to align it with the exact promises in the DPP manifesto. Now produced and shown to me marked “AB4” is a copy of the Hansard of the debate and vote on the matter in National Assembly. 6. THAT what happened in the National Assembly vis-avis the private members’ Bill to amend the private practices Act is an example of eventualities arising out 4 The State v The Malawi Electoral Commission ex-parte Ambokire Bless Salimu Kenyatta Nyirenda, J. of the lack of express statutory prescription binding those who seek public office to be bound by their campaign promises. ” The oral submissions by the Applicant followed very closely the arguments set out in his Skeleton Arguments and the substantive part thereof reads as follows: “THE EVIDENCE, THE LAW, AND THE AFGUENDO 3.1 Order 53, Rules 3(1) and 3(7) of The Rules of the Supreme Court provide that: “3(1) no application for Judicial Review shall be made unless the leave of the court has been obtained in accordance with this rule. 3(7) The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.” 3.2 The Applicant’s locus standi is premised on the fact that as a Malawian citizen he is directly affected by the status quo he seeks to reverse, namely, where those who seek public office through the ballot do so on the basis of express promises made to the people, including himself yet there is no statutory provision that binds them to deliver on such promises. 3.3 3.4 3.5 Section 6 of the Constitution clearly stipulates that the authority to govern has its source from the people of Malawi. In other words the Applicant as a voter and citizen of Malawi gives the holders of public office through elections their legal validation. It is a legitimate expectation that these public offices shall deliver on their campaign promises. The Applicant therefore has a direct legal and constitutional interest; enough to give him locus standi to apply for Judicial review herein. LIMITATION 3.6 The Rules provide that Judicial Review has to be applied for within 3 months from the day the grounds for the application arose. 3.7 It is crucial, My Lord, to note that the rule also says: “... leave to move for Judicial Review must be made promptey which in this context means as soon as practicable or as soon as the circumstances of the case will allow...” 3.8 The limitation rule, therefore clearly provides for exceptions to the general 3 months rule. The State v The Malawi Electoral Commission ex-parte Ambokire Bless Salimu Kenyatta Nyirenda, J. 3.9 Inthe instant application Judicial Review is being sought vis- avis the Respondent's statutory powers that do not only relate to the last tri- partite elections but the continued existence of that mandate to hold elections with the status quo still as complained by the Applicant: with the Political Parties (Registration and Regulation) Act, the Presidential and Parliamentary Elections Act and the Local Government Elections Act still void of express provisions binding those seeking public office through election to their campaign promises. The grounds therefore do not relate to a specific period. The case of Lukongolo -vs- Attorney General is authority on the point where the court held: “after all the rules like all other rules affecting limitation periods, are not without exception. The court can extend the period upon good reasons being shown to the court and if such extension will not cause hardship or prejudice to the Respondent or the public at large.” 3.10 My Lord, in the instant case there is no demonstrable prejudice that either the Respondent or the public at large will suffer if leave as sought by the Applicant were to be granted.” The Case for the Respondent The Respondent opposes the application in its entirety and it has, to this end, filed an affidavit in opposition, sworn by Mr. Willie Kalonga, the Respondent’s Chief Elections Officer [hereinafter referred to as the “Respondent’s affidavit”]. The Respondent advanced three principal reasons why leave should not be granted, namely, absence of a decision to be judicially reviewed, absence of arguable claim and existence of alternative remedies. With regard to absence of a decision, Counsel Silungwe submitted that judicial review process presupposes an existence of a decision by a public body. She further submitted that neither the Applicant’s Form 86A nor the Applicant’s affidavit refers to a specific decision by the Respondent to which judicial review should arise. Counsel Silungwe drew the Court’s attention to O. 53, r. 4 of RSC which requires that an application for judicial review should be made promptly and in any event within three months from the date when the grounds for the application first arose. She argued that the Applicant seeks to circumvent this requirement by not stating when the grounds for the application herein arose. It is also the case of the Respondent that the Applicant does not have an arguable claim. Counsel Silungwe submitted that the Applicant proceeds on the erroneous premise that the Respondent is vested with the power to (a) monitor the conduct of elected candidates and (b) undertake legal reforms. She contended that the powers The State v The Malawi Electoral Commission ex-parte Ambokire Bless Salimu Kenyatta Nyirenda, J. of the Respondent are to be found in s.76 of the Constitution and electoral laws, namely, the Electoral Commission Act and the Parliamentary and Presidential Elections Act. Section 76 of the Constitution is couched in the following terms: “) (2) (3) (4) (9) The Electoral Commission shall exercise such functions in relation to elections as are conferred upon it by this Constitution or by an Act of Parliament. The duties and functions of the Electoral Commission shall include- (a) determine constituency boundaries. . . (b) review existing constituency boundaries . . . (c) determine electoral petitions and complaints relating to the conduct of any elections; (a) ensure compliance with the provisions of this Constitution and any Act of Parliament; and (e) perform such other functions as may be prescribed by this Constitution or an Act of Parliament. Any person who has petitioned or complained to the Electoral Commission shall have a right of appeal to High Court against determinations made under subsections (2) (c) and (2) (d) The Electoral Commission shall exercise its powers, functions and duties under this section independent of any direction, or interference by other authority or any person. 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.” — [Emphasis by underlining supplied] Section 8 of the Electoral Commission Act lays down additional functions of the Respondent. The section reads: “In addition to the broad functions and powers conferred on the Commission by the Constitution and subject to the Constitution, the Commission shall exercise general direction and supervision over the conduct of every election and without prejudice to the generality of such power, it shall have the following further functions- (a) to determine the number of constituencies for the purposes of elections 7 The State v The Malawi Electoral Commission ex-parte Anibokire Bless Salimu Kenyatta Nyirenda, J. (b) (c) (d) (e) (g) (h) (i) i) (k) () (m) to undertake or supervise the demarcation of boundaries of — constituencies; subject to the Local Government Elections Act and any other written law to undertake... Provided that: (i) in the case of the City of Blantyre, the total number of wards shall not exceed thirty; (ii) in the case of the City of Lilongwe, the total number of wards shall not exceed thirty; (iii) in the case of the City of Mzuzu, the total number of wards shall not exceed fifteen; (iv) inthe case of the City of Zomba, the total number of wards shall not exceed ten; (v) in the case of the Kasungu Municipal Council, the total number of wards shall not exceed thirty; (vi) inthe case of the Lunchenza Municipal Council, the total number of wards shall not exceed eight; (vii) in the case of the Mangochi Town Council, the total number of wards shall not exceed ten; (viii) inall other cases, the total number of wards shall not exceed two for each parliamentary constituency, and the Commission shall ensure that ward boundaries do not cross local authority boundaries: to organize and direct the registration of voters; to devise and establish voters registers and ballot papers; to print, distribute and take charge of ballot papers and voting registers; to approve and procure ballot boxes; to establish and operate polling stations; to establish security conditions necessary for the conduct of every election in accordance with any written law governing elections; to promote public awareness of... to promote and conduct research into electoral matters; to perform the functions conferred upon it by or under any written law; and to take measures and to do such other things as are necessary for conducting free and fair elections.” Counsel Silungwe submitted that it is clear from s. 76 of the Constitution that the jurisdiction of the Court to entertain judicial review under subsection (5) is limited to the exercise of the Commission’s powers and functions under the Constitution and electoral laws and not otherwise: The point was put thus: The State v The Malawi Electoral Commission ex-parte Ambokire Bless Salimu Kenyatta Nyirenda, J. “From the provisions highlighted, the powers and functions of the Commission do not include the power to monitor the conduct of elected candidates. It equally does not have the power to undertake legal reform. In fact, if the Applicant himself is of the view that some laws have to change, he can approach relevant authorities such as Parliament and Law Commission. In view of the foregoing, he has no claim amenable to judicial review” With respect to existence of alternative remedies, Counsel Silungwe submitted that it is trite that the Court will not grant leave for judicial review where there are other remedies available and they have not been utilized. She cited the case of R v. Epping and Harlow General Commissioners Ex-Parte Goldstraw (1983) 3 All ER 257. Finally, Counsel Silungwe submitted that the Applicant, as an interested citizen, can make representations to the Law Commission on his proposals for reform without necessarily going to court Analysis My task at this stage is to determine whether I am satisfied that the Applicant has disclosed a case fit for further investigations at a full hearing of the substantive application for judicial review, for which the Applicant seeks leave: see State and others; Ex parte Ziliro Qabaniso Chibambo, supra. Delay in applying for relief Order 53/4(1) deals with delay in applying for relief and it is in the following terms: “An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds of the application for judicial review first arose unless the Court considers that there is a good reason for extending the period within which the application shall be made” I momentarily pause to observe that the wording of O. 53/4(1) is materially and significantly different from the so called rule referred to by the Applicant in paragraph 3.7 of his Skeleton Arguments. This point, as will be evident in a moment, has much wider implications with respect to the line of argument taken by the Applicant as regards the issue of delay in applying for relief. It is not uninteresting to note that the said paragraph 3.7 of the Applicant’s Skeleton Arguments does not include therein the words “first arose” which appear in O. 53/4(1). It is not without importance that the O. 53/4(1) uses the term “first arose”. The term quashes with full force the contention by the Applicant that this matter is not caught by O. 53/4(1) because there is a continuing duty on the Respondent to comply with the Constitution. The State v The Malawi Electoral Commission ex-parte Ambokire Bless Salimu Kenyatta Nyirenda, J. It is important that time-limits in judicial review proceedings be approached with some degree of strictness. As was rightly observed in the State v. Attorney General, Ex parte Chimbayo, [2005] MLR 426, compliance with court procedures is an obligation which litigants must comply with least there be nothing left to regulate litigation with [with] obvious undesirable consequences. In the case under reference, Nyirenda J, as he then was, cited with approval a passage in Ratnam v. Cumarasamy and another [1964] 3 All ER 933 where the Privy Council at 935 has said: “The rules of court must, prima facie, be obeyed, and, that in order to justify a court in extending time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, the party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation.” I turn now to consider whether the delay in the instant case can be excused. The facts in the Applicant’s affidavit do not address the issue of delay in applying for relief. This means that there are no facts, material or otherwise, upon which the Court could exercise its discretion to allow the extension of time. In any case, even if the Court were to see the Applicant’s case in the most favourable light, the grounds of his application will be taken to have first arisen when the Respondent last conducted elections in which the Applicant could have taken part, that is, the 2014 General Elections. I find the delay since then to 12" April 2016 when the Applicant filed his application for leave to be manifestly inordinate and not to have been reasonably explained. In any case, there is no application before this Court for extending the period within which the application for leave should be made. Alternative Remedies It is trite law that the remedy of judicial review is not available in cases where other remedies exist and have not been used, such as recourse to another forum: See R. v. Epping and Harlow General Commissioners Ex-parte Goldstraw, supra. This proposition of the law is premised on the fact that judicial review is a remedy of last resort. It is, therefore, important that the judicial review process should not be clogged with unnecessary cases, that is, cases which are perfectly capable of being dealt with by other forums. 10 The State v The Malawi Electoral Commission ex-parte Ambokire Bless Salimu Kenyatta Nyirenda, J. The Applicant wholly acknowledges that there is in this country a fully-fledged constitutional body with the mandate of reviewing laws to ensure their compliance with the Constitution. This is to be found on page 6 of the Applicant’s Skeleton Arguments: “... This in our humble submission gives the Respondent the leeway to communicate to the Law Commission, a body specifically set up by the constitution to review our laws the urgent need to synchronise our electoral laws with especially section 6 of the Constitution: if the authority to govern derives from the people of Malawi then it is the height of absurdity not to hold those seeking public office to account for the campaign promises they make to get into those public offices. This is the crux of this application. ” It is clear from the quoted passage that all that the Applicant seeks is for the Respondent to communicate with the Law Commission on the need to have the electoral laws reformed. The Applicant could not muster any reason at all as to why he could not directly approach the Law Commission. In the premises, it is my finding that the Applicant prematurely sought relief from this Court before resorting to a forum or body specially set up to deal with legislative reform. In short, it is my finding that the Applicant has not fully exhausted the alternative avenues available to him in respect of this matter. Absence of a decision Judicial review process presupposes an existence of a decision by a public body. The presupposition is grounded on, among other matters, the fact that if an application for judicial review is successful, the usual result is that the decision is "quashed" or nullified. In the present case, I have read and re-read Form 86A and the Applicant’s affidavit and searched in vain for a specific decision by the Respondent to which judicial review should arise. It will be recalled that the Applicant seeks to challenge “the decision by the Respondent to conduct election in Malawi before electoral reform that would guarantee that the electorate got what those seeking public office through elections promised them during the election process”. The Court takes judicial notice that the Respondent has conducted so many elections since the Constitution was adopted. So which “election” is the Applicant referring to? In the premises, I cannot agree more with Counsel Silungwe that Form 86A is very vague: it does not contain or identify a specific decision taken by the Respondent that could be the subject of judicial review. It is, accordingly, my finding that the Applicant has failed to establish the existence of a definitive and unequivocal decision upon which his application depends. 11 The State v The Malawi Electoral Commission ex-parte Ambokire Bless Salimu Kenyatta Nyirenda, J. Construction of written law It is quite evident, upon perusal of the application and its supporting affidavit, including the submissions by the parties, that what the Applicant seeks to attack by way of judicial review is not the challenged decision but, to all intents and purposes, the constitutionality of the electoral laws. It is the Applicant’s case that these laws are inconsistent with the Constitution in that they do not “specifically provide(s) that those seeking election to public office through universal suffrage as envisaged by the Constitution of The Republic of Malawi are bound by their electoral promises ”’. In short, what the Applicant is asking the Court to do is to interpret s. 6 of the Constitution. For example, what does s.6 mean by stating that “the authority to govern derives from the people of Malawi as expressed through Universal and equal suffrage in elections”? Does it mean that persons seeking public office must be bound by their election promises? To my mind, it is wrong to think that decisions made in exercise of powers given by a statute are amenable to judicial review merely because they are in conflict with a constitutional provision: see The Inspector General of Police v. Mvula [2008] MLR 377, wherein Kamwambe J quoted with approval the dicta by the High Court, sitting as a “Constitutional Court”, in The State and Director of Public Prosecutions, The Lilongwe Chief Resident Magistrate and the Inspector of Police (Ex parte Right Hon. Dr Cassim Chilumpha SC) Constitutional Cause No. 5 of 2006 (unreported), at page 13. The dicta read: “We have been grappling with the question as how the constitutionality of a statutory provision would fall in any one of the four principles elicited above (i.e. grounds on which Judicial review can be available). To avoid being misunderstood, we are not saying that judicial review cannot be in a matter bearing on a decision or proceedings arising from or relating to a constitutional provision or indeed the interpretation of a constitutional provision. Thus, where an applicant believes that he has a case for judicial review arising from the exercise of powers conferred by the Constitution, it is a matter which can perfectly be pursued through the judicial review machinery. What we do not accept is that a person who_thinks_ proceedings or_a decision made_under_powers conferred by Statute _is unconstitutional on account of the statute being in conflict with the Constitution can resort to the remedy of judicial review, because in that scenario he is not necessarily challenging the proceedings or the decision but the Statute itself In that case, the proper recourse in our_view, would be to commence _an action through originating summons procedure challenging the_constitutionality of the Statutory _provision_...” - Emphasis by underlining supplied What this means then is that this application is not a judicial review matter. The end result is that so far as judicial review is concerned, there are no triable issues to warrant the grant of leave to commence judicial review proceedings. 12 The State v The Malawi Electoral Commission ex-parte Ambokire Bless Salimu Kenyatta Nyirenda, J. Legitimate expectation The other issue that exercised my mind is the submission by the Applicant in paragraph 3.5 of his Skeleton Arguments to the effect that “Jt is a legitimate expectation that these public offices shall deliver on their campaign promises’’. It is trite that in order to found a legitimate expectation, a promise must in general be “clear, unambiguous and unqualified”: see R v. Revenue Commissioners, ex parte MFK Underwriting Agents Ltd [1990] 1 WLR 1545, 1570B and R (Association of British Civilian Internees: Far East Region) v. Secretary of State for Defence [2003] QB 1397. The present case is not concerned with a particular electoral promise but electoral promises in general as contained in manifesto (es) of political party (ies). Manifestos When one looks at Form 86A and the supporting affidavit, it is quite evident that the matter largely stems from the Applicant’s belief and conviction that s. 6 of the Constitution, which provides that the authority to govern comes from the people of Malawi, requires that electoral laws should “place direct legal obligation on those seeking public office through elections to fulfill the promises they make to the people Jrom whom their (the Public Officers’) authority to govern comes from’’. I cannot help it but comment that I find the Applicant’s reasoning in coming to that belief and conviction problematic but I am not surprised at all: that is what is bound to happen when constitutional provisions are not construed in a holistic manner. The case of Fred Nseula v. The Attorney General and Malawi Congress Party, MSCA Civil Appeal No. 32 of 1997 (unreported) is one of the leading authorities on principles of constitutional interpretation and one of the oft-cited principle found therein is as follows: “It is an elementary rule of interpretation that one provision of the Constitution cannot be isolated from all others. All the provisions bearing upon a particular subject must be brought to bear and to be interpreted as to effectuate the greater purpose of the Constitution.” In the present case, it is noteworthy that the only constitutional provisions that the Applicant has referred to in his documentation and submissions are ss. 6, 75 and 76 of the Constitution. I have great doubts that the Applicant had the occasion to read s. 8 of the Constitution. The section makes provision on the status, function and duty of the legislature as follows: “The legislature when enacting laws shall reflect in its deliberations the interests of all the people of Malawi and shall further the values explicit or implicit in this Constitution” 13 The State v The Malawi Electoral Commission ex-parte Ambokire Bless Salimu Kenyatta Nyirenda, J. Section 8 of the Constitution is complemented by ss. 48 and 66(1) of the Constitution. Section 48 of the Constitution provides that “all legislative power of the Republic shall be vested in Parliament which shall have the powers and responsibilities set out in this Constitution. Section 66(1) of the Constitution spells out the functions and powers of the National Assembly and it reads: “The National Assembly shall be a directly elected Chamber which shall have power, subject to this Constitution, to- (a) receive, amend, accept or reject Government Bills and Private Bills; (b) initiate Private Member’s Bills on the motion of any member and amend, accept or reject all Private Member’s Bills; (c) debate and vote motions in relation to any matter including motions to indict and convict the President or Vice-President by impeachment; (d) exercise such other functions and powers as are conferred on it by this Constitution or by an Act of Parliament; and (e) take all actions incidental to and necessary for the proper exercise of its functions” — Emphasis by underlining supplied Sections 8, 48 and 66 of the Constitution embody very important principles by which Parliament is guided. Subject to the Constitution, Parliament enacts laws in accordance with its own judgment and not necessarily to toe the line of a political party, whether in Government or otherwise. Outside individuals and entities have no direct participation in the conduct of the business, or immediate influence upon the decision, of Parliament: see Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 23" Edition, 2004. In the premises and based on the above-mentioned constitutional provisions, it is clear to my mind that it is very much within the powers of the National Assembly to reject a bill (be it a Government, Private or Private Member’s Bill) whether or not it seeks to effect electoral promises. No authority has been, or can be, cited to support the proposition by the Applicant that a Member of Parliament should not vote against a bill that is meant to amend an existing piece of legislation so that the legislation is aligned to a promise in the manifesto of the political party to which the Member of Parliament belongs. It could never have been the intention of the framers of our Constitution that bills in respect of electoral promises by a “ruling party” should be presented to the National Assembly as a fait accompli. In this regard, paragraphs 4, 5 and 6 of the Applicant’s Affidavit lack merit and have to fall by the wayside. 14 The State v The Malawi Electoral Commission ex-parte Ambokire Bless Salimu Kenyatta Nyirenda, J. There is another more fundamental flaw with the Applicant’s reasoning regarding manifestoes. It seems to me that the Applicant perceives manifestoes as cast in stone or that a political party cannot change its manifesto whilst it is still in power. Surely this cannot be the case. I can easily envisage cases where a change of tack by a political party on an electoral promise, although unfair from the Applicant’s stance, may involve questions of general policy affecting the public at large or a significant section of it. The case of R v. Secretary of State for Education and Employment, ex p Begbie [2000] 1 WLR 1115 is both instructive and illuminating. The facts in R v. Secretary of State for Education and Employment, ex p Begbie, supra, are of the simplest. The government had stated while in opposition that it would abolish the state funded assisted places scheme but had given undertakings that children already holding places under the scheme would continue to receive funding. However, the legislation enacted after the government came to power provided that those already holding places would continue to be funded only until they had completed the primary stage, save where the Secretary of State determined in an individual case that a longer period should apply. An additional complexity was that a letter from the Secretary of State to another member of the public but seen by the applicant’s mother had stated by mistake that the original promise would be honoured, and it had been some weeks before that error was corrected. The applicant challenged, on grounds that included breach of legitimate expectation, the Secretary of State’s decision not to exercise his discretion to allow the applicant funding beyond the primary stage. The main basis on which the legitimate expectation challenge failed was that it would require the Secretary of State to act inconsistently with the legislative intention. In the circumstances, the Applicant’s belief and conviction that political promises (manifestos) are sacrosanct are wholly misplaced. In short, legislation trumps electoral promises. Further, even if it is accepted, for the sake of argument, that there is a moral obligation on a “ruling party” to keep electoral promises, such promises would not in my considered view give rise to a legitimate expectation enforceable in public law, such that the courts could intervene to prevent the expectation being defeated by achange of mind concerning such promises. As was aptly observed in The Queen (on the Application of Wheeler) v. Office of the Prime Minister and Speaker of the House of Commons [2008] EWHC 1409 (Admin) in paragraph 41: “The subject-matter, nature and context of a promise of this kind place it in the realm of politics, not of the courts, and the question whether the government should be held to 15 The State v The Malawi Electoral Commission ex-parte Ambokire Bless Salimu Kenyatta Nyirenda, J. such a promise is a political rather than a legal matter. In particular, in this case the decision on the holding of a referendum lay with Parliament, and it was for Parliament to decide whether the government should be held to any promise previously made.” Before resting, I wish to observe that, within our constitutional construct, the ultimate consequence of going back on an electoral promise is, to my mind, a matter for the electorate to determine, when the opportunity next arises. Conclusion In summary, for the various reasons given herein, this Court is of the clear view that the Applicant has failed to show a fit case for further investigation in the proposed judicial review. The application is, accordingly, dismissed with costs. Pronounced in Court this 26" day of September 2016 at Blantyre in the Republic of Malawi. \\ JUDGE enda 16