Jeffrey, Nankhumwa & Chazama v Mutharika, Mwale & Democratic Progressive Party (MSCA Misc. Application 65 of 2023) [2024] MWSC 1 (3 January 2024)

Jeffrey & ors v Prof. Mutharika & ors

REPUBLIC OF MALAWI IN THE MALAWI SUPREME COURT OF APPEAL MSCA MISCELLANEOUS CIVIL APPLICATION No. 65 OF 2023 (being Civil Causes No. 227 and 189 of 2023, High Court of Malawi, Lilongwe District Registry, Civil Division)

In the Matter Between:

GREZELDER JEFFREY 1ST APPLICANT HON. KONDWANI NANKHUMWA, MP 2ND APPLICANT CECILIA CHAZAMA 3RD APPLICANT and PROF. ARTHUR PETER MUTHARIKA 1ST RESPONDENT DR. CLEMENT MWALE 2ND RESPONDENT DEMOCRATIC PROGRESSIVE PARTY 3RD RESPONDENT

Ruling

nyaKaunda Kamanga, JA.,

1. The Applicants herein bring a summons seeking interim injunctive relief against the First Respondent’s decision to remove them from their original positions and assign them new positions. The summons is indicated to be brought under Section 7 of the Supreme Court of Appeal Act, Chapter 3:01 of the Law of Malawi, as read with Order I Rule 18 of the Supreme Court of Appeal Rules (hereinafter the Rules). According to the affidavit evidence, the First Applicant is Grezelder Jeffrey, a member of the Democratic Progressive Party and its Secretary General, a position she was elected to at the political Party's National Political Conference in July 2018, making her a member of the political Party's National Governing Council. The Second Applicant is Honourable Kondwani Na nkhumwa, a Member of Parliament and Parliamentary Leader of the Opposition, also a member of the Democratic Progressive Party and its Vice President for the South, who was elected at the Party’s National Political

Jeffrey & ors v Prof. Mutharika & ors

Conference in July 2018 and is automatically a member of the Party’s National Governing Council. The Third Applicant is Cecilia Chazama, also a member of the Democratic Progressive Party, and its National Director of Women. She was elected to this position at the Party’s National Political Conference in July 2018 and therefore automatically became a member of the Party’s National Governing Council. The First Respondent is the President of the Democratic Progressive Party (the Third Respondent) and he assigned the First Applicant to be the Vice President responsible for the Central Region and assigned Dr . Clement Mwale to be Secretary General.

2. The Applicants seek the following reliefs in the summons filed on 31st December 2023: i. An interlocutory order suspending the decisions of the First Respondent to remove the Applicants from their positions as Secretary General, Vice President for the Southern Region, and National Director of Women, respectively, of the Democratic Progressive Party and/or assign them to the positions of Vice President responsible for the Central Region, in case of the First Applicant and Presidential Advisors in the case of the Second and Third Applicants, until the determination of this matter or further order of the Court. ii. An interlocutory order suspending the decision of the First Respondent to appoint the Second Respondent to the position of Secretary General of the Democratic Progressive Party until the determination of this matter or a further order of the Court. iii. An order of interlocutory injunction restraining the Second Respondent either by himself, his servants, agents or howsoever otherwise from exercising the powers and functions of the position of Secretary General of the Democratic Progressive Party and the First and Third Respondents either by themselves, their agents or howsoever otherwise from stopping the Applicant from exercising her powers and functions as Secretary General of the Democratic Progressive Party or interfering with such exercise of powers and functions or recognizing the Second Respondent as Secretary General of the Democratic Progressive Party. iv. An order of interlocutory injunction stopping or otherwise restraining the Respondents, from implementing or taking any action based on the resolutions and decisions that were passed at the meeting of the National Governing Council on the 13th day of December, 2023 or an interim order nullifying the said resolutions and decisions or doing anything with the like effect until the determination of this matter or a further order of the Court.

The Applicants claimed that the application was extremely urgent because the Third Respondents had called them to appear before a disciplinary hearing the next day, on Thursday, January 4, 202 4, because they had called for and attended the National Governing Council Jeffrey & ors v Prof. Mutharika & ors

meeting on 6th December 2023: as shown in letters marked ‘GJ 13’, ‘KC 5’. The Applicants allege undemocratic tendencies within the party and expressed reservations about the summoning authority as well as the formation and composition of the disciplinary panel. The Applicants avers that the First Respondent “seeks to transform the party into a one-man show where he can appoint and remove members of the National Governing Council”: paragraph 22 of the First Applicant’s sworn statement and paragraph 17 of the Second and Third Applicants’ sworn statement in support of the application.

3. After perusing the ex parte summons that was filed on 31st December 2023, the Court directed that an inter partes hearing be held on 1 st January 2024, which was adjourned to 3 rd January 2024 at the request of the Respondents’ legal practitioner. This decision is made after hearing both parties’ arguments through their legal practitioners . The Court appreciates the parties’ prompt filing of skeleton arguments which were substantiated by oral arguments.

The Background

4. The background to this matter is spelled forth Hon. Justice Pemba ’s ruling, which was delivered on 28 th December 2023, in the High Court, Lilongwe Registry. In brief, the Applicants served as the Third Respondent’s Secretary General, Vice President South, and Director of Women until early December 2023, when they were assigned to other positions by the First Respondent. According to the sworn statements filed in support of the summons, the First Applicant has been assigned to the position of Vice President Central and she received her letter and notice of communication to that effect on 8 th December 2023. The notice and letter further stated that the Second Respondent, Dr. Clement Mwale, had been assigned to the position of the Third Respondent’s Secretary General with immediate effect. The affidavit evidence also reveals that the Second and Third Applicants only heard and saw a notice of assignment on social media by the First Respondent removing the Second Applicant from the position of Vice President South to the position of Presidential Advisor and the Third Applicant from the position of National Director of Women to the position of Presidential Advisor South.

5. These decisions by the First Respondent did not please the Applicants thus on 9th December 2023, the First Applicant applied to challenge the decision before the High Court Lilongwe District Registry, Civil Division, and the same was heard on 12th December 2023. Later, while the First Applicant’s application was pending a decision, the Second and Third Applicants also made applications at the High Court Principal Registry, Civil Division in Blantyre. Considering that the applications arose from similar fact s, that some of the orders sought by the Second and Third Applicants were similar to those sought by the First Applicant, and that both teams of Applicants sued the same Respondents in the present matter, the High Court ordered that the two applications be consolidated and heard simultaneously on 19th December

Jeffrey & ors v Prof. Mutharika & ors

6. The court below delivered its ruling dismissing the Applicants’ applications on 28th December 2023. The High Court determined that the Applicants failed to demonstrate that they have a good and arguable claim to the right they sought to protect. There was no demonstration of a serious question to be tried as no political right of theirs has been violated by the First Respondent’s decision to assign them to different positions other than those they previously

Held

7. Aggrieved with the High Court’s decision, the Applicants have brought the same application for interim relief before this Supreme Court of Appeal contending that this appeal Court has concurrent jurisdiction with the High Court under Order I rule 18 of the Rules.

8. Before delving into the merits of the Applicants’ summons for interlocutory orders, this Court must first resolve a preliminary issue concerning its jurisdiction to adjudicate the proceedings. The court made it clear in Mbale v Maganga (Misc. Civil Appeal 21 of 2013) [2015] MWSC 1, that the issue of jurisdiction can be raised at any stage of the proceedings. The determination of jurisdiction is critical since it constitutes the basis of a court’s “power and authority”: Mulli Brothers Ltd v Malawi Savings Ba nk Ltd [2013] MLR

243. The case of Portland Cement Company (1974) Ltd v Gilton Chakhaza [2010] MLR 272 (SCA) notes that jurisdiction is a matter of law. As enunciated in Yiannakis v Rep [1995] 2 MLR 505 the Supreme Court of Appeal’s jurisdiction emanates from the Constitution and the Court’s powers are provided in the Supreme Court of Appeal Act: Chihana v Rep (2) [1992] 15 MLR 86 (SCA).

The Applicants’ Arguments

9. The Applicants’ legal practitioner s contended that the facts in this case establish that the Applicants were elected to the Democratic Progressive Party's National Governing Council during the National Political Conference in July 2018. According to Article 8(3)(c) and Article 10(2) of the Democratic Progressive Party's Constitution, a person can only become Secretary General of the Party or a member of the National Governing Council after being elected at the National Political Conference. According to the Party's Constitution, neither the Applicants nor any other member of the National Governing Council may be removed by the First Respondent. On the recommendation of the Disciplinary Committee, the Central Committee has the authority to remove a member of the National Governing Council; the First Respondent is not authorized to do so. Furthermore, the Applicants contend that the first Respondent essentially appointed the second Respondent as Secretary General. He has no such power under the Third Respondent's Constitution, which provides ele ction by the National Political Conference as the only route to become a member of the National Governing Council, as well as Secretary General. It is apparent that the Central Committee, under Article 9(5)(a), has the authority to make interim appointment s to the National Governing Council subject to endorsement by the National Political Conference. As a result of this procedure, a person Jeffrey & ors v Prof. Mutharika & ors

becomes a member of the party's National Governing Council by appointment by the Central Committee after receiving endorsement from the National Political Conference.

10. According to the Applicants, the aforementioned points establish that there are triable issues in the present matter. The Applicants rely on the following constitutional provisions in support of their assertions: Section 10(1) of the Constitution of Malawi which provides that ‘in the interpretation of all laws and in the resolution of political disputes the provisions of this Constitution shall be regarded as the supreme arbiter and ultimate source of authority .’ Furthermore, Section 15(1) of the Republic o f Malawi Constitution requires every legal and natural person to respect the human rights enshrined in the Constitution. Consequently, when determining the correctness of the First Respondent's decision -making, the court should refer to the Constitution as the ultimate guidance. Where the first respondent has not provided a rationale for his decision the decision was made arbitrarily and without justification and is a violation of section 43 of the Republic of Malawi's Constitution. The Applicants further contended that Section 40 of the Constitution of the Republic of Malawi allows everyone the right to make political choices. Concerning the Third Respondent, its members, including Applicants, exercise this right at the National Political Conference, when t hey elect members of the National Governing Council. The decisions of the First Respondent herein take away that right from the members of the Third Respondent as well as the Applicants who participated in the election of members of the National Governing Council during the National Political Conference in July 2018.

11. The Applicants submitted that damages would be an insufficient remedy because the Respondents’ losses would be difficult to quantify the Applicants' losses in monetary terms. They asserted that if the Respondents' decisions and actions are suspended and do not take effect, one of the purposes of interlocutory orders would be realized, which is to preserve the status quo. It was argued that an interlocutory order suspending the decision herein and prohibiting the Second Respondent from excising the powers an d functions of the Secretary General's office, as well as stopping or restraining the Third Respondent from implementing or taking actions based on the resolutions and decisions of the National Governing Council herein, would be just. According to the Applicants, the balance of convenience favors granting the interlocutory reliefs sought.

12. The Court observes that the Applicants' sworn statements are irregular as the contents do not comply with rules of practice and procedure as they are not restricted to factual issues and contain extensive legal arguments that should have been restricted to skeleton arguments to avoid making them lengthy and some paragraphs do not fully indicate the sources of some of their statements and beliefs: National Democratic Alliance v The Electoral Commission and others [2004] MLR 217 (HC); Bon Elias Kaotcha Kalindo and others v Springstone Company Jeffrey & ors v Prof. Mutharika & ors

Ltd and another [2013] MLR 25 (HC); Aubrey Likhusa and eight others v Reunion Insurance Company Ltd and another [2013] MLR 4 (HC).

The Respondents’ Arguments

13. The Respondents' principal contention in the skeletal argument is that the present matter is political and hence non-justiciable. The Respondents rely on High Court decisions of Chakuamba v Ching'oma [1996] MLR 425 and Hassan Hilale Ajinga v United Democratic Front, Civil Cause Number 2466 of 2008, which, as Counsel for the Respondent admits, are not binding on this Court. In Chakuamba v Ching’oma [1996] MLR 425, the court made the following observations about handling political party disputes:

“The independence of the judiciary will be seriously undermined and the basis of our new democracy shaken if political parties use the courts, and the courts allow themselves to be used, as a political football pitch. The forum for resolving political conflicts and issues which are purely political lies elsewhere, and not in these courts”.

14. The Respondents further argued and submitted that, by its very nature, an injunction is an equitable remedy, and that an applicant seeking such an equitable remedy is obliged to provide the Court with full and frank disclosure of all material facts. This C ourt must apply equity principles which include "He who seeks equity must do equity " and "He who comes to equity must come with clean hands." The Respondents contended that the Applicants came to equity with soiled hands because they violated the Third Res pondent's Constitution by holding their own NGC meeting on 6th December 2023 and calling for their own elective National Political Conference without the authority of the Central Committee, blatantly disregarding the Third Respondent's Constitution. The Respondent contends that the Applicants' application before this Court is only designed to assist the Applicants in escaping accountability for their actions under the Code of Conduct established by Article 6 of the Third Respondent's Constitution. According to the Respondents, the Applicants simply desire this Court t o validate their misconduct. Consequently, the Respondents strenuously oppose the application for orders of injunction and pray that this Court dismiss the Applicants' motion with costs.

Jeffrey & ors v Prof. Mutharika & ors

The Issues for Determination

15. After considering the summons, the affidavit evidence, and the Applicants’ and Respondents’ arguments, the Court identified the following two procedural issues for preliminary determination:

i. Whether section 7 of the Supreme Court of Appeal Act as read with Order I rule 18 of the R ules can be u tilised as the legal basis or enabling provision for the present application; and

ii. Whether the courts should be the primary port of call for resolving intra-political party disputes among the Applicants and the Respondents.