IN THE HIGH COURT OF MALAWI
THE PRINCIPAL REGISTRY
CIVIL CAUSE NUMBER 2466 OF 2008
HASSAN HILALE AJINGA PLAINTIFF
UNITED DEMOCRATIC FRONT DEFENDANT
CORAM: THE HON. MR. JUSTICE L P CHIKOPA
Tembo of Counsel for the Plaintiffs/Applicants
Gangata (Mrs.) Court Clerk
In the case of Wallace Chiume & Others v Aford, Chakufwa Chihana & Another Civil Cause Number 108 of 2005 [Mzuzu Registry, unreported] we, borrowing a leaf from the Constitutional Court in South Africa and the House of Lords in England, opined that judicial officers are not best placed to decide on matters inter alia of politics. The considerations operating in politics are different to those obtaining in the courts. The courts are preoccupied with the law, facts, evidence and ensuring that their decisions are in accordance with legal, factual and evidential merit. Politics on the other hand deals primarily in numbers with emotions and egos taking a not too distant second. In politics he who has numbers carries the day. Merit in whatever respect is not a primary consideration. We talk of the foregoing not because we have some particular distaste for politics but to drive home our view that as much as possible the courts should be slow, very slow in our humble view, to adjudicate on matters that though dressed up as legal are really political disputes. In fact our position is that the more political a dispute is the more amenable it should be to a political solution. The less political it is or becomes the more amenable it is or becomes to juridical intervention.
We are getting close to election time in Malawi. Election fever is up and about. Parties, political parties that is, are busy electing people through primary elections to stand on their behalf during the 2009 parliamentary elections and we dare say presidential elections. The plaintiff, we are told, is a member of a political party called United Democratic Front [UDF] the defendant herein. Like other parties the UDF is busy conducting primary elections in various parts of Malawi. The plaintiff wants to stand as a UDF candidate in Malombe Constituency in Mangochi district. He therefore went through primary elections. These were apparently held on July 1 2008. It is alleged that the plaintiff won the said primaries and was so advised by the defendant. The affidavit herein, sworn strangely by the plaintiffs Counsel, gives details of who else participated in the primaries and the margin of the plaintiffs win. They are not of much concern to us at this stage. Suffice it to say that it is alleged that around October 13, 2008 the plaintiff was advised by the defendant that there will be a rerun of the primaries in Malombe Constituency on October 19, 2008. The plaintiff was not overly amused. He rushed to court and obtained an injunction restraining the defendant from holding such a rerun.
In the affidavit the plaintiff claims that allowing the primaries to be rerun will cause him to suffer loss and his political rights and those of who voted for him would be infringed [sic]. In his writ of summons he claimed for an injunction restraining the defendant from holding the rerun. Having obtained the interlocutory injunction the plaintiff now appears before us inter parties seeking to extend the operation of injunction herein pending the determination of what the plaintiff thinks are the substantive issues.
We must say that we are not very sure about the propriety of the mode of commencement or the cause of action itself. It is our view however that the matters raised by the application are of such importance we think it better to busy ourselves with the substantive issues it raises rather than with the propriety or otherwise of the mode of commencement and/or the cause of action. Refer to the sentiments of Justice Tambala JA in Aaron Longwe v Attorney General  16 (1) MLR 257 where he said:
the application affects a matter of great national importance. It concerns the freedom of an individual to participate in effecting political change in the political system of his country. The decision on such application must, in my view, depend on the substance and merits of the application and not on a procedural technicality.
The defendant was served but chose not to attend. We allowed the plaintiff to proceed. This is our opinion on the matters raised.
The American Cyanamid Company v Ethicon Limited  AC 396 is the case in point. An injunction is granted in the discretion of the court. It is discretion to be exercised judicially though. Before an injunction can be granted the court has to satisfy itself inter alia that there is a serious question to be tried; that damages will not be an adequate remedy to whatever damage might befall or has befallen the plaintiff and thirdly that the balance of convenience weighs in favor of granting the injunction.
THE ISSUE(S) AND ITS DETERMINATION
The question is whether or not we should grant the extension. The considerations are much the same as when deciding whether or not we should grant the injunction. But in accordance with our discussion of the law above we propose to determine the issues[s] by addressing the three areas of the law debated above. Accordingly:
Is There A Serious Question To Be Tried?
We warn ourselves that we should not in answering the above question purport to determine this matter on the merits. The plaintiff however answers the question in the positive. If we may quote the plaintiffs skeletals:
the plaintiff is safeguarding his right to participate in peaceful political activity intended to influence the composition and policies of government and to freely make political choices. The holding of a rerun is tantamount to denying the plaintiff and those who voted for him their right to make free political choices.
In the affidavit in support of the application it is alleged that the plaintiff would suffer loss if a rerun were held and also that the political rights of those that voted for him in the said primaries would be infringed.
Sadly the plaintiff does not state what loss he would suffer. Let us assume for fear of trivializing the issues herein that the plaintiff is referring to economic loss. Has there been laid any basis for determining what such loss is and whether there is any serious question to be tried in respect thereof? The answer is in the negative. There should be and there is a difference between one alleging that he will suffer loss and another saying the same thing but giving particulars and proof thereof. The court will obviously lend a sympathetic ear to the latter while paying scant regard to the former. Much the same can be said about the allegation that the plaintiffs political rights and those of his supporters will be infringed if a rerun was allowed to go ahead. What rights are these it might be asked? Is it the right to vote? Or the right to vote for a particular candidate? Or the right to be voted into office? To be fair to the plaintiff we think he tried to answer the above questions within the passage in his skeletals we have referred to above. At the cost of being repetitive the plaintiff contends that he is safeguarding his rights to participate in peaceful political activity and to freely make political choices. On any of the above points we think the plaintiff has no leg to stand on. The holding of a rerun can not in our view affect the plaintiffs or his supporters right to vote. Or the plaintiffs right to vie for or be voted for a seat in the National Assembly. Whether or not the rerun is held the plaintiff and his supporters can and will vote for a legislator of their choice if they so wish. They [the said supporters] can still vote for the plaintiff whether or not he stands as a UDF candidate. If the plaintiff loses the rerun all he has to do is to stand as an independent candidate. His supporters can then happily vote for him. If the worry is that he might lose the rerun and thus deny the supporters the right to vote for him as a UDF candidate all we can say is we fail to understand why the plaintiff thinks he might lose. The same people who allegedly won him the day during the primaries will win him the rerun. But even if he lost he would stand as an independent.
The holding of a rerun will also not affect the plaintiffs or his supporters right to participate in peaceful political activity or to freely make political choices. It is not as if during the rerun the plaintiff or his supporters will be forced to make certain specified and/or predetermined decisions or that the primaries will be devoid of freedom/peace/fairness. But even if there were such attempts we are sure there would be steps taken to remedy the situation. The electorate can at an appropriate time seek redress from inter alia the courts. The truth of the matter is that there is no threat to any of the plaintiffs political rights. Neither to those of his supporters. It is clear that the plaintiff has raised no serious question to be tried.
ADEQUACY OF DAMAGES
The plaintiff argues that damages would not be adequate to compensate him for his loss. We have already wondered what loss is being referred to here. If it is economic loss his contention that it would be impossible to compute damages in respect of such loss might be taken to be an insult to the courts and a reflection of his own inability to prove his case than a genuine impossibility to compute any damages he may subsequently claim from the defendant. In he is however talking about the loss of his political rights and those of his supporters all we can say is that we find it laughable that it can be suggested that a court can fail to compute general damages for breach of a constitutional right. But more than that we think that the issue of damages for breach of political rights does not even arise. As we have seen above a rerun does not and will not result in the loss of any political rights. But even if there was such loss what business is it of the plaintiffs to take up a suit on behalf of his supporters? Surely they can do it for themselves if they feel so inclined.
BALANCE OF CONVENIENCE
We should not be debating this point. Not after we have found that the plaintiff has no serious claim to prosecute and that whatever claim he might have can be adequately compensated through damages. But we must. The matters raised by the plaintiff and our views thereon leave us with no other choice.
Political parties are no more than clubs. Membership is voluntary. Members are free to leave in much the same way they are free to join. The members conduct however is regulated by the clubs rules/constitution which acts like some contract between the members and the club and between the members themselves. The clubs [in this case the parties] activities are regulated by its rules/constitution. The members conduct in so far as it relates to the club [the party] is also regulated by the clubs rules/constitution. In the case of party primaries they must be run in accordance with the partys rule/constitution. If there are disputes they should be resolved in accordance with the partys rules/constitution. The courts should be slow, again very slow, to intervene in a partys internal dynamics. It should instead allow the party and its membership to deal with matters in dispute using their own internal dispute resolution mechanisms. Where a member is not happy either with the partys conduct or a fellow members conduct he is free to leave the club/party and join one that accords with his ideals. Or be without a club or party. The only time a court should intervene in a clubs or partys activities is where the club/party fails to comply with its own rules/constitution, where it acts in breach of the rules of natural justice or when it or its members conduct themselves in breach of the laws of the country none of which has been alleged herein. See the case of Vohor v Adeng  VUSC 14; Civil Case Number 075 of 1996 which contains a stimulating discussion of this point in the light of the cases of Kalkot Mataskelekele v Iolu Abbil and Donald Kalpokas Civil Case 99 of 1991, Young v Ladies Imperial Club Ltd  2 KB 523 and John v Rees  2 ALL E R 274. That explains why courts are quick to intervene where presidential and/or parliamentary elections are in issue. It is because the law of the land, in the name of the Presidential and Parliamentary Elections Act and the Constitution, is at stake. Applying the above reasoning to this our case it is our view that the balance of convenience strongly leans against the extension of the injunction. We would if we granted the extension be poking our noses into private matters that should not really be our concern. We would be deciding on an entirely political dispute dressed up like a legal one. A dispute crying out for a political solution rather than a juridical one.
It is clear that that the plaintiff has no serious issue to litigate on. If there is he can if he is successful be compensated in damages. The balance of convenience is also against the extension of the injunction. Accordingly the application to extend the interlocutory injunction herein is dismissed.
But let us reiterate, even by way of obiter, our position as stated in the opening remarks above and in the Wallace Chiume case that purely political disputes, as this one clearly is, should as much as possible be given a political solution and not a juridical one. Politics proceeds purely on the basis of numbers. He who has them carries the day with merit usually conveniently taking a back seat. In the context of the present case we would like to observe that the courts can not make the plaintiff his partys candidate in Malombe constituency. He and if we may say so the courts should themselves be slow, however strong the invitation or temptation to enter into frays entirely political. As we argued in our paper entitled The Role of the Judiciary in Promoting Constitutionalism, Democracy, Economic Growth and Development in Sub Saharan Africa allowing the Judiciary and Judges into disputes entirely political unduly politicizes the Judiciary and we daresay the Judges. They now begin to be associated either with political parties [in view of whatever decisions, good or adverse, they have made about them] or with factions thereof. That erodes the publics confidence in the Judges and the Judiciary. And also their independence. It also needlessly uses up valuable human and material sources which could have been utilized for other more deserving cases. And since these political cases involve the Big Men of society the courts correctly open themselves to accusation of bias/preferential treatment the more they deal with these political cases at the expense of the cases of ordinary Malawians.
No order as to costs will be made seeing as the defendants never turned up.
Pronounced in Chambers this November 14, 2008 at Blantyre.
L P CHIKOPA