IN THE HIGH COURT OF MALAWI
Constitutional Cause No. 1 of 2009
Dr Bakili Muluzi……………………………………………………………...1st Plaintiff
The United Democratic Front……………………………………………….2nd Plaintiff
The Malawi Electoral Commission....………………………………………Defendant
Coram: Honourable Justice A.C. Chipeta
Mbendera and Kauka, of Counsel for the Applicant
Manda, Official Interpreter
In the matter between Dr Bakili Muluzi and the United Democratic Front on the one hand as Plaintiffs, and the Malawi Electoral Commission on the other hand as Defendant, a third party, the Democratic Progressive Party, has today intervened with an ex-parte application for it to be admitted as a Friend of the Court, alias as Amicus Curiae in the case. The application has been brought in terms of the provisions of rule 10 of the Courts (High Court) (Procedure on Interpretation or Application of the Constitution) Rules, 2008. The Summons is supported by the affidavit of Mr Maxon Raphael Mbendera, SC, who appeared alongside Mr Kauka, of Counsel on presentation of the application.
Before I can see myself delving into the merits of the application, the question of jurisdiction has exercised my mind. The case this application relates to is a hybrid type. It is a Constitutional matter by virtue its having been so certified by the Honourable the Chief Justice on 23rd March, 2009 under Section 9(3) of the Courts (Amendment) Act, 2004, and so it becomes amenable to the Rules governing the conduct of Constitutional cases. It, however, is also an Election matter that is amenable to legislation, including the Parliamentary and Presidential Elections Act (cap 2:01) of the Laws of Malawi, as read with Practice Direction No. 2 of 2009 on such matters. As a Constitutional matter the substantive case is already before a panel of three Judges of whom I am only one. The Application brought for Amicus Curiae consideration, however, has been brought to me as a single Judge of the Panel. The Applicant, I must say, did not address me on the aspect I am now considering, but as a Court I am duty bound, faced as I am with multiple procedural sources (as the matter belongs to two categories of proceedings), to first check whether the law permits me to adjudicate on the application before me alone or whether it requires me to do so in the company of my Colleagues on the Constitutional panel.
On the rules providing procedure in Constitutional matters, I see nothing specifically addressing applications other than the substantive matter, but I do recall that there is a Supreme Court authority, the Nangwale case, which faulted the practice of one Judge on a Constitutional panel of Judges dealing with, and disposing of interlocutory applications in the absence of other members of his panel. I am not aware of any other Supreme Court authority changing that position. In regard to the Elections Law, since not all of them need be Constitutional cases, the question of appearance before a single Judge would not be an issue. The present case, being both an Elections matter and a Constitutional matter that is already before a panel of three Judges, in the absence of contrary authority, I take it that it was wrong for the Applicant to bring it before a single Judge.
I am fortified in this view by the fact that the application herein is not a minor or merely technical one. According to the abridged time-table of cases of this type that is in force, the parties to the case and the panel of three Judges for the case are as of now ready to tomorrow handle a preliminary issue in the matter, and the hearing of the substantive matter, depending on the outcome of the preliminary issue. If, therefore, I as a single Judge of the panel today, on ex-parte basis, determine the application before me, depending on the result I bring out, they could all be taken unawares by the developments in the matter, and the case they have all prepared on could easily be thrown off-balance. Of course, if I refuse the application no disturbance will occur, as all will proceed on the basis of what is already before the Court now. If, however, I grant the application, the other Judges will be forced to accommodate in the case a party on whom I will have deprived them of the opportunity to adjudicate whether such party should or should not be welcomed as a Friend of the Court. The parties too will be compelled to contend with an extra party in their case, whose criterion for admission will not have been transparently followed by them, and they will have to make adjustments on the spot owing to being ambushed by this external intervener.
On basis therefore that present authority advocates that when a Constitutional panel of Judges is seized of a case, it should even handle interlocutory applications that arise together in its case, I decline to determine the application of the Democratic Progressive Party as a single Judge and on ex-parte basis. Short of dismissing the application, therefore, as I have not touched on its merits, I direct that the Applicant brings the Application to the full Court panel, and that it does so inter partes.
Made in Chambers the 6th day of April, 2009 at Blantyre.
Mbendera SC: Since hearing of the matter is tomorrow, can I serve today?
Court: Time being limited, proceed to serve today, although as per the Rules of Procedure any service at this hour, it being slightly beyond 5.00pm, will be deemed effected tomorrow. As I have indicated, it is the full panel of the Court that has mandate on an application like this. You can appear once you have served, and the fate of your application will then be determined by the panel upon hearing representations from all parties desirous of commenting on it.