THE talk in town these past few days have centred on the injunction that the Mzuzu High Court judge Justice John Chirwa granted Civil Society Organizations (CSOs). The injunction, for all practical purposes, has the effect of suspending a cabinet minister. While others applaud Justice Chirwa’s justice-minded injunction, others accuse him of practising judicial activism adding that the injunction is irregular in the circumstances. But, is it really the case that the injunction is fishy?
There are three strands of arguments being advanced to support the position that the injunction is irregular, namely: that only the president has powers to fire or hire or otherwise suspend a cabinet minister a.k.a presidential prerogative, that the president did not make a decision and that therefore there is no decision that the court can review as judicial review reviews a decision of a public officer and lastly, that the Constitution of Malawi does not provide for a resignation or suspension of a cabinet minister just as it does not provide for resignation or suspension of a sitting Vice President.
Is presidential prerogative absolute?
Let me start with the presidential prerogative (i.e. exclusive right to do something). The argument here runs that only the president (read Peter Mutharika) has the powers to hire or fire or suspend a cabinet minister and that the court has no such powers and that therefore the High Court made a mistake in ordering that Dr. George Chaponda, Minister of Agriculture, be suspended.
I do not agree with the above line of argument. Why? Because the thinking in the above argument seems to suggest that the president is free to do as s/he wishes and that there are no limits to his/her prerogative powers and that the court cannot intervene in any way. This is, considering our constitutional democracy, wrong.
The right position here is that the president’s prerogative can be reviewed by the court as was rightly the case here. The president’s prerogative is not absolute. And there no such thing as an absolute presidential prerogative neither is there absolute discretion. In a nutshell, every decision, every discretion, every prerogative, and every power can be reviewed and in that respect it is limited.
It is true that the president of Malawi has a prerogative to hire or fire or suspend a cabinet minister. But let’s assume, for argument’s sake, that the president has brothers, children, and close relatives totaling to 20 and who all are above 21 years old, speak English, and are citizens of Malawi. Let’s further assume that, for whatever reasons, the president appoints all of them as cabinet ministers running different ministries.
In such a situation, as democratic as Malawi is, will a citizen of Malawi be wrong when s/he moves the court to review the president’s decision to hire a relatives-only cabinet? Will the court be wrong to grant the reliefs such a patriotic citizen seeks? For your own information, the courts are there to check whether the executive and the legislature are doing what the laws say they should do. I do not see any conflict of separation of power here and neither do I see usurpation of power.
Is there no decision for the court to review?
Some lawyers have argued that the president has made no decision hence there is no decision that the court can review. I beg to disagree. Looking at the facts, the president has made a decision.
The president has made a decision by a positive act in appointing junior public officers to become members of a Commission of Inquiry to investigate the role of the Minister of Agriculture in the maize procurement scandal.
It should be noted here that two of the members of the commission are public officers of junior ranks to the minister. The president has not fired or suspended the minister to pave way for the investigations. And we wonder if it is possible for the junior public officers to investigate a serving minister without fear or favour. Clearly, the situation here is such one that bias is highly likely. A situation as this offends one of the tenets of a Commission of Inquiry which is that the commissioners should be impartial.
To be raw with the truth, the president has made a decision and the decision is this: appointing junior public officers into becoming commissioners of a Commission of Inquiry investigating a serving minister. Now I ask the good lawyers to stand up and say with a straight face that this is not a decision. In the spirit of judicial review, the courts have to review the decision-making process that led the president to appoint junior public officers. Was the president’s decision made in bad faith? Were these junior public officers appointed for improper purposes? Was the president’s appointment of these junior public officers based on irrelevant considerations? So on and so forth.
No law providing for resignation or suspension of a cabinet minister?
I find it very hard to believe that no law provides for resignation or suspension of a cabinet minister. And it is even harder to believe that some lawyers think that the situation regarding cabinet ministers is the same as that of a vice president.
As a matter of fact, the president cannot fire a vice president. The simple reason being that the president neither appointed nor elected the vice president. If at all the president can fire a vice president, then such will be the case where the president appoints a vice president like in circumstances where the vice president rises from being second vice president to vice president.
But the people that elected the vice president can fire a vice president where s/he misbehaves and the people asks the court, and the court finds his/her behavior legally intolerable. This can be the case because the people elected the vice president. It is them that gave him/her his/her mandate as vice president; they hired the vice president and so they can fire him/her. As simple as that!
The situation, however, is different for a cabinet minister. Here the president has the prerogative to hire or fire a cabinet minister. It is important to note that the words ‘hire’ and ‘fire’ are actions at the opposite ends of the continuum of the president’s prerogative.
Semantically, in-between these two words ‘hire’ and ‘fire’ are subsumed the words ‘resign’ and ‘suspend’. This therefore means that resignation and/or suspension of a cabinet minister is provided for in our Constitution. It does not make sense to say, in one breadth, that parliament gave the president the wide powers to hire and fire a cabinet minister yet in another deny him the minor powers to suspend a cabinet minister.
For what is worth, the court’s injunction—regular or irregular—stands. If the government feels the injunction is irregular, then it should challenge it in court and stop from lawyering in the media. In fact, legal battles are fought and won in the courtroom and not in the media. Although I doubt, strongly so for that matter, if at all the applicants in the case have locus standing I find nothing fishy with the injunction.
Let me conclude by this statement by court in R (Miller) -v-Secretary of State for Exiting European Union [2016] EWHC 2768:
“An important aspect of the fundamental principle of Parliamentary sovereignty is that primary legislation is not subject to displacement by the Crown through the exercise of its prerogative powers. But the constitutional limits on the prerogative powers of the Crown are more extensive than this. The Crown has only those prerogative powers recognised by the common law and their exercise only produces legal effects within boundaries so recognised. Outside those boundaries the Crown has no power to alter the law of the land, whether it be common law or contained in legislation.” (Emphasis supplied)