Nangwale v Speaker of the National Assembly and Another ((Misc. Civil Case No 1 of 2005)) [2005] MWHC 80 (24 August 2005);

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IN THE HIGH COURT OF MALAWI

LILONGWE DISTRICT REGISTRY

MISC. CIVIL CASE NO 1 OF 2005

BETWEEN :

 

THE STATE

 

- and -

 

SPEAKER OF THE NATIONAL ASSEMBLY.1ST RESPONDENT

THE ATTORNEY GENERAL ………………….2ND RESPONDENT

MARY NANGWALE ……………………………..APPLICANT

 

 

CORAM HON. JUSTICE NYIRENDA

HON. JUSTICE CHINANGWA

HON. JUSTICE KAMANGA

 

 

Mr Makono/Mr Malera/Mapira; Counsel for the applicant

Mr Msiska S.C./Mr Kaphale; Counsel for the

1st Respondent

Counsel for the 2nd Respondent; absent

Ms L.N. Msiska; Court Interpreter

Ms C. Jalasi/Mrs Namagonya; Court Reporter

 

 

J U D G M E N T

 

HON. NYIRENDA J.

The applicant, Mary Nangwale, is before this court with an application for Judicial Review of matters that arose in the National Assembly itemized very soon in this judgment. The application, as usual, is under Order 53 of the Rules of the Supreme Court. The action is seriously contested by the first respondent on a jurisdictional perspective and also on the merits of the issues taken up by the applicant.

 

The second respondent, The Attorney General, has quietly decided not to take part in the proceedings and has not appeared. To this court the course taken by the Attorney General was probably expected because of the awkward position that he finds himself in the nature of this matter as legal advisor to Government. We proceeded with the matter in the absence of the Attorney General whom we are convinced was aware of the hearing.

 

The factual back ground of the matter is very very brief but raises far-reaching legal issues. This judgment for the most part is basically a consideration of legal issues on the relationship between the judiciary and the legislature in so far as it relates to the facts of the case. The applicant was appointed to the office of Inspector General of Police on 6th September 2004; presumably the appointment was by the President pursuant to Section 154(2) of the Constitution. The court has not been furnished with any Presidential instrument of her appointment pursuant to Section 90(1) of the Constitution. This point has not occupied us much though and is only raised per in curium. Section 154(2) of the Constitution provides as follows:-

 

The Inspector General of Police shall be appointed by The President and confirmed by the National Assembly by a majority of the members present and voting, but the Public Appointments Committee may at anytime inquire as to the competence of the person so appointed to carry out the duties of that office and as to such other questions as may have direct bearing on the performance of the duties of that office.

 

Pursuant to this provision, on 30th March 2005, the Leader of Government business in the National Assembly moved a motion that the applicant be confirmed on her appointment. A debate ensued, the details of which become more relevant later, which resulted in the National Assembly rejecting the appointment. Dissatisfied with the manner in which the whole matter was conducted in the National Assembly the applicant is now before this court seeking review of the decision by the National Assembly.

 

As we see it the applicant challenges the decision of the National Assembly on two main grounds which in themselves raise a number of other important legal and philosophical considerations. She challenges the decision in the first place because in the nature of the debate that went on in the National Assembly she was entitled to the right to be heard which she was not accorded. Secondly it is the applicant’s case that some members of the August House who had material interest in the matter participated in the debate and voted without first disclosing their interest as required by Section 61 of the Constitution.

 

On the basis of these facts the reliefs sought by the applicant according to her applications as follows:-

 

  1. A declaration that the first applicant was duly confirmed as Inspector General of Police by the majority of members of the National Assembly that were present and lawfully voted on the motion of confirmation of the applicant on 30th March 2005.

 

  1. A declaration that the decision of the First Respondent was unconstitutional and unlawful, further or alternatively.

 

  1. A like order to a certiorari quashing the decision of the First Respondent.

 

  1. Further or other relief

 

  1. An Order for costs

 

We wish to point out at the outset that reliefs (a) and (b) are a clear contradiction in terms but the situation resolved itself later in the course of submissions by counsel for the applicant who informed the Court that ground (a) was abandoned.

 

 

According to the applicant the issue in the case is:-

 

“……. whether the First Respondents have correctly appreciated and discharged their constitutional, statutory and administrative law duties in relation to the confirmation process of the applicant.”

 

And that the legal basis for the applicant’s case is that:-

 

  1. The First Respondent owes constitutional,

administrative and statutory duties to the applicant :-

 

(a) not to allow a member of Parliament to vote where he or she has a direct or indirect interest in a matter being debated by the National Assembly without first disclosing such interest to the National Assembly and secondly obtaining leave of the National Assembly to vote on such a motion.

 

(b) duty to afford the applicant an opportunity to be heard.

 

© duty to accord the applicant procedurally and substantively fair hearing where serious allegations are made against her.

 

  1. The Respondent acted contrary to the legitimate expectations of the applicant in that only matters relevant to her confirmation relating to her competence to carry out the duties of the Office of the Inspector General of Police would be allowed to form part of the debate and not any extraneous or irrelevant matters.

 

As should be expected in a case of this nature a number of critical legal issues arise for determination. We will as much as we can attempt to address most of the issues. We will ourselves dwell mostly on those issues that we consider will help us determine the matter without undermining the value and importance of some of the legal arguments and authorities presented before us by eminent counsel on both sides. It is here that we must sincerely commend and thank all counsel for the great wealth of research and the authorities made available to the Court. The evident gusto with which each one of them made submissions made it very clear to us of the importance they attach to the matter which indeed touches on imperative issues in our democratic order.

The proper approach to this matter which raises myriad of considerations is to first identify the key areas for consideration and determination. In that context we have identified a number of issues which will form the basis for our determination of the matter of course not forgetting the many issues raise in the application, the response there to and others which generally arose in the submissions in open court, some of them at the instance of questions raised by the bench.

 

The issues we have identified are the following. First we will consider whether actions of Parliament can be a subject matter for court proceedings, can Parliamentary actions be challenged in court. Obviously depending on which way we go in this discussion we might find ourselves with little else to say on the matter as would be the case if our determination was that courts have no business with actions of the Legislature in our system of government. The second issue for consideration is whether the applicant should have been heard before members of Parliament voted on the motion for the applicants’ confirmation. The third issue for consideration is whether some members of Parliament who voted on the material day on the matter had material interest in the matter thereby violating Section 61 of the Constitution if such voting was without disclosure of such interest and without leave of the Chamber Each one of these three considerations no doubt raises a couple of other considerations.

Whether actions of Parliament can be challenged in court is best considered by reference to a number of Constitutional Provisions. Typical of a democracy our Constitution emphasizes the separate status of the three organs of state in Sections 7, 8 and 9 as follows:-

 

7: The executive shall be responsible for the initiation of policies and legislation and for the implementation of all laws which embody the express wishes of the people of Malawi and which promote the principles of this Constitution.

 

8: The legislature when enacting laws shall reflect in its deliberations the interests of all the people of Malawi and shall further the value explicit or implicit in this Constitution.

 

9: The judiciary shall have the responsibility of interpreting, protecting and enforcing this Constitution and all laws in accordance with this Constitution in an independent and impartial manner with regard only to legally relevant facts and the prescriptions of law.”

 

On a clear reading of these provisions while emphasis is on separate status the dominant ‘institution’ to which all the three organs are subservient is the Constitution. The Executive must promote the principles of the Constitution, the Legislature must further the values of the Constitution and the Judiciary must protect and enforce the Constitution. We do not think therefore that there is any doubt that Parliament in Malawi must act within the confines of the Constitution. Prior to the present Constitution we had in this country a system of government which upheld the supremacy of parliament. Parliament acted and made laws that were virtually unchallengeable, of the likes of Forfeiture Act Cap14:06. Fortunately for us we have somewhere to look at and compare with the developments in this country. Speaking on similar developments and with the same background the Constitutional Court of South Africa has said in Pharmaceutical Manufactures Association of SA and Another in re: the exparte application of the President of the Republic of South Africa and Others (CCT31/99)2000(2)SA 674:-

 

The 1983 Constitution also entrenched the Supremacy of Parliament though it made provision for courts to have jurisdiction in respect of questions relating to the specific requirements of the Constitution. This however has been fundentally changed by our new Constitutional order. We now have a detailed written Constitution. It expressly rejects the doctrine of Supremacy of Parliament………. The rule of law is specifically declared to be one of the fundamental values of the Constitutional order, fundamental rights are identified and entrenched and provision is made for the control of public power including judicial review of all legislation and conduct inconsistent with the Constitution.

 

The Supreme Court of Zimbabwe in Smith v Mutasa and Another (1990) LRC (Const) 87 at 94 has said:-

 

In Zimbabwe the question of Parliamentary privileges has not remained static. It has to some extent been affected by the Declaration of Rights contained in the Constitution. The result is that the Parliament of Zimbabwe, unlike that House of Commons (England) may not enjoy, hold and exercise privileges, immunities and powers which are inconsistent with fundamental rights and privileges of Parliament. If in Zimbabwe there is a conflict between fundamental rights and the privileges of Parliament, the conflict can only be resolved by the courts of justice.

The Constitution of Zimbabwe is the supreme law of the land. It is true that Parliament is supreme in the legislative field assigned to it by the Constitution, but even then Parliament cannot step outside the bounds of the authority prescribed to it by the Constitution.

 

Going back to our Constitution it is made even clearer by Section 5.which states:-

 

5: Any act of Government or any law that is inconsistent with the provisions of this Constitution shall, to the extent of such inconsistency, be invalid.

 

In furtherance of the specific status of the judiciary pursuant to Section 9 of the Constitution it is provided in Section 108(2) of the Constitution that :-

 

108(2): The High Court shall have original jurisdiction to review any law, and any action or decision of the Government, for conformity with this Constitution, save as otherwise provided by this Constitution and shall have such other jurisdiction and powers as may be conferred on it by this Constitution or any other law.”

 

Clearly therefore Parliament must act within the Constitution and where it does not it can be challenged before courts. We do not think this point requires further discussion. We are convinced ourselves from submissions by both sides that they all see this as the correct exposition. The real question however is that which is raised in the submissions on behalf of the first respondent where it is said ‘whilst parliament must at all times comply with and conform to the provisions of the Constitution, the Constitution itself spells out the areas of Constitutional competence of parliament, and that to say parliament is subject to the Constitution is not to say that every act of parliament will be subject to judicial interference. That it is therefore necessary in all cases prior to any judicial intervention to determine whether the area under inquiry is constitutionally amenable to judicial intervention.

 

The reasoning behind not subjecting every act of parliament to judicial interference seems to be self revealing and rooted in the concept of separation of powers in Sections 7, 8 and 9 cited earlier. But more to it is what was said by our own Supreme Court in the case of The Attorney General v Chipeta, MSCA Civil Cause No 33 of 1994 that:

 

Parliamentary privilege does not exist for the personal benefit of members of Parliament. The privilege of individual members are primarily freedom from arrest and freedom of search. The other privileges are the collective privileges of the whole National Assembly. And the sole justification for the privileges is that they are essential for the conduct of its business and maintenance of its authority. It has been stated that for legislative bodies to be able to perform their constitutional functions effectively they must have freedom to conduct their own proceedings without intervention from outside bodies.

 

Realising the necessity of preventing outside interference the Constitution itself in Section 60(1) vests the National Assembly with privileges and immunities.

 

We will address the subject of parliamentary privileges with a little more detail. Section 60(1) of the Constitution states:

 

60(1) The Speaker, every Deputy Speaker, every Member of the National Assembly and every Member of the Senate shall, except in cases of treason, be privileged from arrest while going to, returning from, or while in the precincts of the National Assembly or the Senate, and shall not, in respect of any utterance that forms part of the proceedings in National Assembly or the Senate, be amenable to any other action or proceedings in any court, tribunal or body other than Parliament.

 

On the face of it, it might appear that parliamentarians might do and provide for themselves as they please on privileges except for those that might verge on sedition. From the discussion that we have had on the Supremacy of the Constitution in our democratic order it would appear to us that this might be an overstatement and that there might be a case for the view that even parliamentary privileges would have to be checked for their constitutionality. We are of the clear view that even when we talk about the necessity of parliamentary privileges it is not meant that Parliament in our situation can shield itself with privileges which glaringly undermine the Constitution. Otherwise Parliament itself would have undermined its own mandate and responsibility to further the values explicit or implicit in the Constitution as required of it by Section 8 of the Constitution. We are further of the clear view that such privileges are bound to be checked in a judicial process for their constitutionality.

 

In discussing the subject of parliamentary privileges Dumbutshena C.J. in Smith v Mutasa and Another (1990) LRC (Const) 87 at 96 said:-

 

When considering parliamentary privileges in most Common Wealth countries including Zimbabwe, it is to remember that these countries have embodied in their Constitutions declarations of human rights. The judiciary in countries like India, Zimbabwe and many others can lawfully strike down legislation passed by Parliament. That is why when privileges, immunities and powers claimed by the House of Assembly conflict with provisions of the Declaration of Human Rights in the Constitution the courts will resolve the conflict in favour of the fundamental rights of the citizen ……. It is clear that the Senate and the House of Assembly hold, exercise and enjoy the privileges, immunities and powers bestowed on them, their members and officers, in terms of the provisions of the Act or any other law. ……… The relationship between Parliament and the Court of justice on matters affecting parliamentary privileges is well summarized by Evans CJ HC in Re Clark et all and A.G of Canada (1978)81 DLR (3rd)33 at 51. The remarked:

 

Historically, there has always been some question whether the courts have jurisdiction to determine the nature and extent of parliamentary privileges. As the Supreme law-giving body it would seem only natural that Parliament should be the source of authoritative guidelines on the subject. On the other hand, there is something inherently inimical about members of Parliament determining the nature and extent of their own rights and privileges. The courts have seized on this to consistently review the nature and extent of parliamentary privileges.

 

We have not doubt that the views expressed above accord with the views the Judiciary as well as the Legislature on this point in this country; the two institutions being at the helm of safeguarding constitutional values and aspirations.

 

The discussion on general privileges of the National Assembly should not in our view be confused with the question of internal procedures of the August House. Section 56(1) of the Constitution states:-

 

56(1) Subject to this Constitution, the National Assembly, may by Standing Orders or otherwise regulate its own procedure.”

 

These procedures are intended to regulate the internal functions of the House and to facilitate proceedings in the House. It is the domain of the Legislature and the other wings of government are well advised to keep away to enable the Legislature perform its functions. No doubt Parliament itself will do all possible to avoid internal procedures that undermine the Constitution. In the very case of Smith v Mutasa and Antoher that we use to doubt absolute parliamentary privileges it is acknowledged as follows:-

 

There are, it is admitted, some privileges which by their very nature exclude the jurisdiction of the courts. The privileges, immunities and powers conferred …….on Parliament, its members and officers are complete and brook of no interference …… These privileges, immunities and powers are essential for the proper governance and protection of Parliament. Parliament needs them for the control of its internal procedures and for the complete freedom of deliberation inside its Chambers.

 

It is these procedures, from our perception, that our Supreme Court was referring to in the Attorney General v Chipeta referred to earlier.

 

 

 

We now come to a very critical point about the case before us. The case is for judicial review of the decision of the National Assembly. At the centre of it therefore are the principles that govern judicial review. We have come a long way and it is a well trodden path that the remedy of judicial review is concerned with reviewing, not the merits of the decision in respect of which the application for judicial review is made, but the decision-making process itself. It has been said it is important to remember in every case that the purpose of the remedy of judicial review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or individual judges for that of the authority constituted by law to decide the matter in question. See Chief Constable of North Wales Police v Evance [1982]1 WLR 1155 p 1160. The function of the court is to see that lawful authority is not abused by unfair treatment. If the court were to attempt itself the task entrusted to that authority by the law, the court would, under the guise of preventing the abuse of power, be guilty itself of usurping power.

 

The concept of judicial review is enshrined in Section 43 of the Constitution which is the spine of this case. The section provides as follows:-

 

43: Every person shall have the right to:-

(a) lawful and procedurally fair administrative action, which is justifiable in relation to reasons given where his or her rights, freedoms, legitimate expectations or interests are affected or threatened; and

 

(b) be furnished with reasons in writing for administrative action where his or her rights, freedoms, legitimate expectations or interests are affected or threatened if those interests are known.

 

The jurisdiction of this section is self evident. It is applicable to “administration action” going to rights, freedoms, legitimate expectations and interests of the applicant. The section provides for the right to lawful and procedurally fair administrative actions premised on reasons in writing. The question that obviously arises in the present case is whether the decision by the First Respondent to reject the applicant’s appointment as Inspector General of Police was by an “administrative” action as opposed to a “legislative” action.

 

In the Cekeshe and Others v Premier, Eastern Cape, and Others 1998(4) SA 935 at 956 it is generally stated as follows:-

 

It can be stated as a general proposition that legislative action which has its source in the Parliamentary process, in the sense that thee is a special opportunity for a motion and debate by a body with legislative powers, will by definition not qualify as ‘administrative action’.

 

From the few cases that we have read what comes out is that what is a “legislative” action as opposed to an “administrative” action will depend much on the process than in the action (decision) itself. Of course to it all is the institution that takes the action or makes the decision and the nature of its mandate. In the instant case we are concerned with the Legislature itself which under our Constitution has the mandate to legislate. As to the process we wish to give an example and analogy that was discussed in the South African Court of Appeal case, Fedsure Life Assurance Ltd v Greaster Johannesbury Transitional Metropolican Council and Others Case No CCT7/98, (1999) SA 374; which was concerned with Section 24, now Section 33 of the Constitution of the Republic of South Africa which virtually in the same terms as Section 43 of our Constitution. It is there discussed as follows:-

 

Whilst Section 24 of the interim Constitution no doubt applies to the exercise of the powers delegated by a council to its functionaries, it is difficult to see how it can have any application to by-laws made by the council itself. The council is a deliberative legislative body whose members are elected. The legislative decisions taken by them are influenced by political considerations for which they are politically accountable to the electorate. Such decisions must of course be lawful but, as we show later, the requirement of legality exists independently of, and does not depend on, the provisions of Section 24(a). ………… Whilst this legislative framework is subject to review for consistency with the Constitution, the making of by-laws and the imposition of taxes by a council in accordance with prescribed legal framework cannot appropriately be made subject to challenge by every person affected by them on the grounds contemplated by Section 24(b). Nor are the provisions of Section 24(c) or (d) applicable to decisions taken by a deliberative legislative assembly. The deliberation ordinarily takes place in the assembly in public where the members articulate their own views on the subject of the proposed resolution.

 

 

 

And later the court said:-

 

It seems plain that when a legislature, whether national provisional or local, exercises the power to raise taxes or rates or determine appropriations to be made out of public funds, it is exercising a power that under the Constitution is a power peculiar to elected legislative bodies. It is a power that is exercised by democratically elected representatives after due deliberation. It does not seem to us that such action can be classed as administrative actions as contemplated by Section 24 of the interim Constitution.

 

As to what amounts to “proceedings in Parliament” the Supreme Court of Zimbabwe in Smith v Mutasa, cited earlier, referred to the decision in Roman Corp. Ltd et al v Hudson’s Bay Oil and Gas Co Ltd et al, [1971]2 OR 418, where it is said:-

 

An exact and complete definition of ‘proceedings in parliament’ has never been given by the courts of law or by either House. In its narrow sense the expression is used in both Houses to denote the formal transaction of business in the House or in Committees. It covers both the asking of a question and the giving of written notice of such questions and includes everything said or done by a member in the exercise of his functions as a member in a Committee of either House, as well as everything said or done in either House in the transaction of parliamentary business.

In its wider sense ‘proceedings in parliament’ has been used to include matters connected with, or ancillary to the formal transaction of business.

 

The court has been favoured with a certified copy of the Hansard covering the proceedings in Parliament on the material day. At page 8 of the document the Leader of the Government Business, Honourable Mwawa, moved the House by motion, to confirm the appointment of the applicant. Honourable Mwawa spoke first on the motion and introduced in the House the applicant’s curriculum vitae and thereafter the matter went into deliberation where members of the House spoke in favour of and against the applicant. Eventually the matter was put to a vote where the vote went against the applicant.

 

From what we have discussed we should now be able to make some conclusions.

 

The first conclusion we come to is that in the nature of what went on in the House and considering our views on the role of the judiciary in internal procedures of Parliament, would be extremely cautious to intervene.

 

The second conclusion which goes more to the determination of this matter is that what went on in the House on the material day was a legislative process resulting into a legislative decision to which the process of judicial review in general and as envisaged by Section 43 of the Constitution has no application.

 

 

 

There are a few other considerations however that we must make which compel us not to stop at this point.

 

We have addressed or minds to the provision that governs the appointment of the Inspector General of Police Section 154(2) which provides as follows:-

 

Section 154(2) The Inspector General of Police shall be appointed by the President and confirmed by the National Assembly by a majority of the members present and voting, but the Public Appointments Committee may at any time inquire as to the competence of the person so appointed to carry out the duties of that office and as to such other questions as may have direct bearing on the performance of that office.

 

In addressing our minds to this provision we wanted to clear ourselves of the possibility that the right to a hearing might be built in it. . As it turns out we are unable to trace the right to a hearing before the National Assembly in this provision. We hold the view that this point does not require any further discussion.

The final point for our consideration is the question of member’s interest in Section 61(1) which states:-

 

61(1): A member of Parliament, where he or she has a direct or indirect material interest in a matter being debated by the National Assembly, shall:

(a) disclose such interest to the National Assembly, and

(b) not be entitled to vote on that matter without leave of the National Assembly.

 

The case for the applicant is that there were a number of members of the House who contributed to the debate on the motion and spoke against her. In her affidavit in support of the application the applicant puts the matter in this way:-

 

 

THAT following the said motion a debate ensued and several members attacked me on rather personal issues which had nothing to do with my professional competence but would obviously have had a bearing on the outcome of the votes.

 

THAT Honourable Njobvuyalema specifically attacked me as having a very bad attitude towards politicians in that I was disrespectful to them citing examples of the police searching Ministers and Members of Parliament when attending presidential functions.

 

THAT he further complained of heavy police presence at the gates to the New State House where he alleged he had been searched and said he felt psychologically molested.

 

THAT Honourable Patel was quoted in the Daily Times of Thursday, 31st March 2005 as being of the view that she could not vote in favour of my confirmation as Inspector General of Police until the issue of the three fired Principal Secretaries, who were never defended by anyone, was sorted out. I attach and exhibit copy of the Daily Times article marked “MN1.”

 

THAT Honourable Chakufwa Chihana and Friday Jumbe could not be expected to objectively vote on my confirmation because the former’s son, Enoch Chihana was arrested by the police and the father was arrested by the police. I attach and exhibit copy of the Dispatch Newspaper of 20th March 2005 to 26th March 2005 in which Enoch Chihana commented on my confirmation by Parliament marked “MN2.”

 

THAT the debate contained scathing attacks on me personally on my attitude as a police officer yet I was not accorded an opportunity to be heard before my fate was determined.

 

THAT the Members of Parliament did not fairly consider my competence and had clearly made up their minds not to confirm me before the hearing of the motion based on personal hostilities.

 

THAT the 1st Respondent was aware of all the personal interests referred to herein but still allowed the said Members of Parliament to vote notwithstanding the fact that they ought to have sought and did not seek leave of the National Assembly to vote on the said motion.

 

THAT since Members of Parliament who had personal interests in the matter voted without leave the whole proceedings were null and void.

 

It has been submitted by counsel on behalf of the applicant that the members whose names appear in the applicant’s affidavit had a material interest in terms of Section 61(1) which they should have disclosed before proceeding to vote. In their submission counsel argue that material interest means any interest relating to the matter, interest having some logical connection with the consequential facts or interest of such a nature that knowledge of the item would affect a person’s decision making process. On this basis it is submitted that the members, especially Honourable Njobvuyalema, should have declared their interest and the 1st defendant should have determined whether to allow them to vote or not. That they voted without this procedure being followed, it is submitted that the entire proceedings were a nullity.

 

For the 1st Respondent it is argued that ‘material interest’ is pecuniary interest and not any other personal interest. That in any event in speaking the way he did Honourable Njobvuyalema in effect disclosed his position and was allowed to vote having made his position clear.

 

Unfortunately for us there isn’t much authority we could lay our hands on this point. The position which the 1st Respondent has taken is from Erskine Mary’s Treatise on The Law, Privileges, and Proceedings and Usage of Parliament.” After discussing “material interest” as “pecuniary interest” the learned author states:-

 

Disallowance of a vote on the score of personal interest is restricted to cases of pecuniary interest and has not been extended to those occasions where the dictates of self-respect and of respect due the House might demand that a member should refrain from taking part in proceedings of the House.

 

We can well understand ourselves why material interest has not been extensively construed and it will not be us opening a floodgate of other possibilities. To do so would certainly have the devastating effect of stifling the much need open and frank deliberations in the National Assembly. In the instant case, the Hansard of the day contains contributions on the motion in favour and against the applicant. Obviously if material interest were to be construed as virtually any sort of material interest, those that spoke in praise of the applicant would be declared materially interested in the positive, while those that spoke in opposition would be declared materially interested in the negative.

 

Further more; we would be reluctant ourselves to attempt to discuss whether what was discussed in Parliament about the applicant was relevant or irrelevant or that the House acted without substantial reasons. It is not up to Court’s to dictate to the House on the yardstick of appropriate considerations in its debate. Once the Honourable Members delve into irrelevances or become tangential the August House is on its own and must be trusted to have the capacity to regulate the predicament. It was commented by Lord Morris in British Railways Board v Pickin (1974)2 WLR 208:-

 

It would be impracticable and undesirable for the High Court of Justice to embark upon an inquiry concerning the effectiveness of the internal procedures in the High House of Parliament, or an inquiry whether in any particular case those procedures were effectively followed.

 

In the Fedsure Life Insurance Ltd case which we have already relied upon on a number of points earlier it was stated in paragraph 41:-

 

The deliberations (in Parliament) ordinarily takes place in the assembly in public where the members articulate their own views on the subject of the proposed resolutions. Each member is entitled to his or her own reasons for voting for or against any resolution and is entitled to do so on political grounds. It is for the members and not the courts to judge what is relevant in such circumstances.

 

 

In our judgment we find no substance and merit in the applicant’s case on the question of member’s interest.

 

We might just say the last two considerations are for completeness because even if we found real issues to deal with, we would be in difficulties to consider them in the context of a judicial review action

 

In our judgment we reckon we have considered all that is necessary for the final determination of this application. The obvious outcome of the totality of our consideration is that this application fails in its entirety. We accordingly reject and dismiss all the prayers by the applicant.

 

Having determined thus, the injunction against the 1st Respondent, which is still on record, is accordingly dissolved.

 

The parties opted to address us separately on the question of costs. They will now do so.

 

 

 

Pronounced in Open Court at Lilongwe this 24th day of August 2005.

 

 

 

……………………………………………….

HON. A.K.C. NYIRENDA, J

 

 

 

 

…………………………………………………

HON. R.R. CHINANGWA, J

 

 

 

 

………………………………………………..

HON. I.C. KAMANGA (MRS), J.