LILONGWE-(MaraviPost)-The country’s civil right groups have teared apart Malawi Parliament of overstepping its mandate in a Motion where legislators want Judge Ken Manda summoned to appear before Legal affairs committee of the house.
The civil rights group under the banner; Malawi Civil Society Led Black Economic Empowerment Movement (MaBLEM), Human Rights Consultative Committee (HRCC) and Forum for National Development (FND) told the news conference on Tuesday, August 9, 2022 in the capital Lilongwe that lawmakers’ conduct is based on personal vendetta, selfish towards the judge.
Fryson Chodzi, Forum for National Development Chairperson described the Judgement by Judge Manda in Alfred Gangata and Gerson Mkweza case as appropriate ‘duly’.
The CSO leaders have also blamed Gerson Mkweza Managing Director of Gam Fuels gas station, for acting inappropriate by snatching Car keys from Gangata.
“It is therefore our demand that Parliament must withdraw its Motion on Judge Ken Manda. We further demand that Mr Mkweza should respect decision of the Court and that the public should refrain from discussing matters that are in court. If our demands will not be met, we will mobilize Malawians into the Streets to demonstrate,” said Chodzi.
Mkwezalamba chipped in, “the public should refrain from addressing matters that are in court so as to avoid jeopardizing the process Whereas Mr. Mkweza admitted wrong doing and the courts made a ruling on that basis, we appeal for him to opt for an out of court settlement where he stand a better chance of
gaining something that sticking to the court process where all odds stands against him”.
On Saturday, August 6, 2022 Managing Director of Masters Boreholes Drilling Company Alfred Gangata also questioned Malawi Parliament’s wisdom to labour itself on private matter in court between him and Gam Fuels over unpaid legal fees.
Last Thursday, Parliament adopted a Motion allowing the Legal affairs committee of Parliament to inquire into the sale of Gam Fuels gas station in Lilongwe.
The court order Gam Fuels to pay MK747 million to Gangata for loss of business after drilling machine keys were confiscated.
Mkweza failure to pay the legal fees prompted sheriff to sale his Kanengo filling station to settle the bill whose buyer is Bishop Simama’s company.
Below is full Malawi Civil Society Led Black Economic Empowerment Movement (MaBLEM) Taskforce statement:
PARLIAMENT MUST NOT OVERSTEP ITS MANDATE IN ENSURING JUDICIAL
INDEPENDENCY
- INTRODUCTION
Following recent media reports of alleged irregular dealings by the courts and certain business
persons which resulted in the sale of GAM Filling station at Kanengo to Realsim Company and the
subsequent interventions by Parliament to debate and resolve to hold the High Court Judge Ken
Manda to account for his decision, the Malawi CSO led Black Economic empowerment Movement
with guidance from the Human Rights Consultative Committee (HRCC) and Forum for National
Development (FND), addresses the media with a view to advocate for the respect of independence
of the judiciary and rules of the land in so far as Business entities remain entitled to enforce their
rights through courts.
This follows a parliamentary decision on 4th August 2022 where members adopted a motion,
allowing the Legal Affairs Committee of parliament to summon Justice Ken Manda, who presided
over a Commercial Cause No 1 of 2022 which led to loss and the consequent sale of Gam Fuels
Kanengo Filling Station belonging to a business man Gerson Mkweza. - STATING THE FACTS
While appreciating the overarching mandate of the National Assembly, as MaBLEM, we believe the
conduct of parliament in this matter leaves so much to be desired, as such we call upon the house
to respect decisions of the other arms of government in so far as separation of powers is concerned.
We further seek to raise awareness to the public on the need to trust our judicial services and
respect for the decisions there from and that proper concerns on legal matters should be handled
within the courts not public or social media courts as it is tantamount to lawlessness and anarchy. - PARLIAMENT AND JUDICIARY NOT TO USURP EACH OTHER
Members of the press and public need to note that the Republican constitution under Section 48(1)
states that “All legislative powers of the Republic shall be vested in Parliament which shall have the
powers and responsibilities set out in this Constitution” it further under section 66 sub section b,
stipulates the power of Parliament to among others, “ ..Debate and vote motions in relation to any
matter
On the other hand Section 108 of the Constitution establishes the High Court. The High Court has
unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any
law; and it reviews any law and any action and decision of the Government for conformity with the
Constitution save as otherwise provided by the Constitution. Under the current constitutional
arrangement, no court, other than the Supreme Court, can be established of superior or concurrent
jurisdiction with the High Court.
Judges of the High Court are appointed by the President of the Republic of Malawi on
recommendation of the Judicial Service Commission. Upon appointment, Judges are posted to
various Divisions of the High Court, which are the Civil Division, Commercial Division, Criminal
Division, Family and Probate Division and Revenue Division.
From the above citations, it is clear there are matters of omission on the part of Parliament. While
Parliament has power over legislative matters, its mandate is only to the extent that such matters
have the effect of affecting its mandate or business in the house. Thus its mandate is seriously
limited to passing legislation and not acting as a COURT per say.
The law makes it clear that the mandate to summon anyone or adjudge on all matters rests with
the Court which has Unlimited and Original Jurisdiction on any criminal or civil proceedings. Section
3
108 makes it further clear that there shall be no ANY COURT other than the Supreme Court in this
country set up for purposes of resolving or hearing any such matters.
By seeking to summon a Judge of the High court, to question him over his duly delivered
determination, Parliament is simply overstepping its mandate and implicitly setting a court higher
that the supreme court which is unconstitutional and unacceptable. The onus to discipline judges
rests with the Chief Justice on recommendation from the Judicial Service Commission.
While the Judiciary is not immune to public scrutiny and accountability demands, the same can be
demanded through the office of the Registrar, the Chief Justice or through the JSC. In matters of
law or challenging the determination of any of the Courts under the judiciary, there are already
existing remedies within the court system available which include approaching the higher court
which is the Supreme Court of Appeal (SCA) so as to abdicate justice.
MaBLEM therefore finds the conduct and actions by Parliament questionable, hence we took it upon
ourselves to access the court documents and explore all issues surrounding this commercial case
and hereto are our litany of findings. - CONFLICT OF INTEREST
Section 61 subsection 1 & 2 of the republican constitution states and we quote; - A member of the Parliament, where he or she has a direct or indirect material
interest in a matter being discussed by the Chamber of which he or she is a
member, shall –
a) disclose such interest to that Chamber; and
b) not be entitled to vote on that matter without leave of that Chamber - Where a member of Parliament fails to disclose a material interest in accordance
with subsection (1) that member shall be guilty of contempt of the Chamber of
which he or she is a member.
Our findings on the matter has revealed that the mover of the Parliamentary motion against Justice
Ken Manda determination was motivated by anger, selfish reasons and a personal vendetta to deal
with the Judge. We have been made aware of Judicial Review Cause No. 3 of 2020 within the
Commercial Division of the High Court that might have prompted the mover of the motion Hon.
Kamlepo Kalua, from Rumphi East Constituency.
The material facts are that when Justice Manda ruled in the above cited case against the mover
who was then Minister of Lands and Housing, he was dissatisfied with the determination of the
courts. Further there is a record that the person in question as a Minister visited the courts premises
demanding that he meets with the Judge. When the later refused, the Minister who is the current
mover of the motion threatened to deal with the judge.
By moving the above motion in parliament attacking Justice Manda, we believe it is not in good
faith but rather steming from the strained relation and utterances from the above cited case. Hon.
Kalua committed a case of contempt of parliamentary standing orders in that he failed to declare
his personal interest in the judge in question thereby causing the house to debate on a matter
based on personal vendetta. He objectively brought the National assembly into disrepute and must
be disciplined by the entire house for this conduct.
Further analysis of the determination of the Judicial Review Cause No 3 of 2020, we as CSO’s
believe that there are material issues of interest that requires the Anti – Corruption Bureau (ACB)
to investigate the then Minister on what promoted his decision to allocate land to Magnolia
Investment Limited as there might be element of collusion and personal motivation for the decision. - THE MATTER BETWEEN, MR. ALFRED GANGATA VS MR. GELSOM MKWEZA AND
ISSUE OF FUELING STATION
MaBLEM had access to court documents since the matter has generated a lot of debate and interest.
Since court records are public records, we felt very much compelled to look at the entire court
documents and make an informed decision on the same.
Court records show that Masters Borehole Drilling Ltd commenced a lawsuit against Gelson Mkweza
and Gam Oil Limited in January 2022 through its lawyers Messrs. Whyte and Cross Law Consultants
under the High Court of Malawi, Commercial Division at the Lilongwe Registry.
The claim was for loss of profits suffered by the said Master Borehole Drilling Ltd due to the
confiscation of the keys for a compressor used for drilling and the motor vehicle on which the
compressor is mounted.
The brief facts are that Mr. Alfred Gangata, the Managing Director of Masters Borehole Drilling Ltd
took fuel for the sum of MK1, 500, 000 from a fueling station of GAM Fuels Ltd. The said Mr. Alfred
Gangata delayed in paying the said MK1, 500, 000 and in December 2020, an agreement was
reached where Masters would drill a borehole at the farm of Mr. Mkweza and that would be a setoff
for the said debt.
Considering that the price of drilling the borehole is higher than MK1, 500, 000, they agreed that
Mr. Mkweza would provide the fuel for the said drilling. The said borehole was drilled and Mr.
Mkweza paid Masters a further MK200, 000 which was to satisfy the cost of drilling the borehole.
However, after the said drilling in December 2020, Mr. Mkweza never returned the keys to Masters
to date. In January 2022, Masters commenced an action against Mr. Mkweza and GAM Fuels Ltd.
The matter was before Justice Malonda of court which progressed to mediation and the parties
failed to reach an agreement. According to the rules of the High Court, when parties have failed to
reach an agreement, the case is transferred to another judge for trial and it is at that point that
Justice Manda was seized of the matter.
Masters through it’s lawyers made an application for judgment on admission on the basis that Mr.
Mkweza had made an admission in defense he filed before the court that he had indeed confiscated
the keys.
The matter went for hearing and the court heard arguments from lawyers for both Masters and
Mkweza and GAM. The Court proceeded to deliver a judgment in which the court found that Mr.
Mkweza had taken the law into his own hands by confiscating keys for the motor vehicle and
compressor which was a tool for trade for Masters and that due to the said action Masters suffered
loss of profits in the sum of MK747, 000, 000 which covers a period of 12 months running for 1st
January 2021 to December 2021.
Upon delivery of the said judgment, Masters applied to the court to have the judgment enforced
against Mr. Mkweza and GAM Fuels Ltd. Mkweza’s lawyers on the other hand applied to the High
Court for stay of execution of the judgment pending appeal.
Before the High Court could make a decision on his application, Mkweza’s lawyers rushed to the
Supreme Court for stay of the same decision and the Supreme Court gave Mr. Mkweza the said
order. Masters’ lawyers made an application in the Supreme Court to set aside the stay and the
Supreme Court directed that the court would like to hear Mkweza before setting aside the stay
order and the court accordingly heard both parties and set aside the stay order.
This meant that any willing party was at liberty to make an offer to purchase the fueling station.
RealSim Ltd made an offer for the sum of MK610, 000, 000 which the Sheriff of Malawi accepted.
At that point that is when Mr. Mkweza rushed to seek public sympathy and Parliament that his
fueling station had been snatched. So who is Mr. Mkweza, an innocent law-abiding citizen or a man
that takes the law into his own hands and is now crying foul because the long arm of the law has
finally caught up with him? Let us look at his business conduct.
In his conduct with Mr. Gangata and Masters he confiscates keys for a motor vehicle and drilling
rig for a debt of MK1, 500, 000 when the courts are open for him to legally collect the said MK1,
500, 000.00. As a compromise they agree to have a borehole drilled at his farm. After the drilling
he still does not return the keys and has not returned them to date still causing further loss to
Masters.
Mr. Mkweza is crying foul because the law has caught up with him. In the claim by Masters, it is
clear that there was no judge shopping as alleged. The matter was filed and was randomly assigned
to Justice Malonda and when the parties failed to settled at mediation, according to law the matter
was assigned to Justice Manda. Mr. Mkweza had a chance to return the keys to Masters and has
not done so for one year and 8 months. Mr. Mkweza would have settled the claim recognizing that
at law he was not allowed to confiscate keys but has with impunity held on the keys to date.
We believe the law has just caught up with Mr. Mkweza and he has now rallied Parliament behind
him and Parliament is busy deliberating an issue of private law when the Judiciary is exercising its
role that gave Mkweza justice for his conduct of taking the law into his own hands. If anything was
irregular, there are remedies within the court system that rectify these, NOT PARLIAMENT. Matter
went for mediation before another judge. After mediation failed, the law requires that trial has to
be before a different judge, in this case Judge Manda. Where else would the case be heard?
SIMILARLY, IF THERE’S ANY DISCREPANCY, THE LAW PROVIDES FOR REMEDIES SUCH AS
APPEAL. - THE ALLEGED SWAPPING OF THE FILLING STATION FROM MR MKWEZA
We have perused the Case files involving this matter which have revealed the following facts;
It is true and in own admission the court ruled in favour of Mr Gangata whose Drilling machine had
its keys snatched by Mr. Mkweza who exercised mob justice on his debtor- Mr. Gangata’s property.
That the Drilling machine has remained redundant/abandoned since June 2020 and as we address
the media the keys to the machine have not been returned by Mr. Mkweza
That in an effort to challenge the ruling By Justice Manda, Mr. Mkweza through Lawyer Kalekeni
Kaphale applied for stay of execution of the order which was granted, and before they could get
it proceeded to the supreme court to seek the same and lied to justice Chikopa that Justice Manda
had denied them the order.
That the court upon realizing this mistake refused to grant the new order and demanded that the
matter should go for interparty before Justice Manda before he could entertain it further. That
before the courts determination, mediation took place and the parties could not agree hence it
proceeded to the commercial division before justice Manda. That upon being satisfied with the
submissions by the applicant- Gangata, the court through sheriffs issued the sale by private Notice
And that responding to the sale offer, Realsim Company belonging to Simama offered to buy and
were awarded the same. That just last week the defendant’s Lawyers proceeded to secure an order
stopping the sale of the filling station- NOT the actual judgment which transferred ownership from
Mr Mkweza to Mr Gangata- meaning the order remains unchallenged. The keys to the van however
remains with Mr. Mkweza and obviously it’s a contempt case and he continues being charged per
day for the same. - ALLEGED JUDGE SHOPPING
We also went further to check on the allegations of judge shopping and noted they can’t exist in
so far as the operations of the Commercial Division works. There are just two judges and one
handles mediation and if you fail to agree, then the other Judge takes up the full hearing of the
challenge. There is no further judge where one can appeal to hence the question of judge shopping
on this matter didn’t occur.
We however were informed that the lawyers for the defendant approached Justice Yakuwawa
Msiska to secure a similar order as obtained from the Registrar. As we speak their application is
being considered by Justice Msiska on a matter that does not concern him. A matter that was
already commenced in another court and they even got an order. In our view, we note that the
defense has abused the court process as they seek similar order at the courts are the same level.
Proceeding to receive the application and obviously seeking to make a determination is purely an
abuse of the court’s process and this is tantamount to judge shopping.
We further know for a fact that while Justice Manda may have been portrayed as having connived
with Lawyers for Gangata or Simama, he is a very close friend of Counsel Paul Nkutabasa as they
play golf together every weekend, as such if he was an impartial judge he would have favored Paul
and his client Mkweza.
Again as submitted above, when Counsel for Mkweza went to seek a stay order, Justice Manda
Granted the same only that the applicants lawyers were so impatient and rushed to Supreme Court
where they provided false allegations against Justice Manda. We find the attacks on justice Manda
as Unfounded and unfair. - OUR CALLS
Based on the above revelations, we demand and make the following calls; - Parliament must withdraw and reverse its motion as submitted by Honourable Kalua and
instead discuss a fresh motion if it indeed seeks to assist Mr. Mkweza in this matter and be
struck out from the hansard. - That Parliament should allow the Judiciary Service Commission to handle any complaint it
may have against any judge - That Mr. Mkweza be allowed to use the justice system to demand for his rights and that he
should respect the decision of the courts - That Malawians should desist from taking the law in their hands and ensure that any
challenge which has legal implication should be approached through the courts - That Mr. Mkweza should hand over the keys for the machine as his further holding the same
is disadvantaging him business and resource wise. - That the public should refrain from addressing matters that are in court so as to avoid
jeopardizing the process - Whereas Mr. Mkweza admitted wrong doing and the courts made a ruling on that basis, we
appeal for him to opt for an out of court settlement where he stand a better chance of
gaining something that sticking to the court process where all odds stands against him. - CONCLUSION
We as MaBLEM remain resolute to this cause especially where Parliament would like to undermine
the Judiciary. We would want Parliament to action as requested hereinabove. Should parliament
continue to demand the summoning of Justice Manda for his duly delivered justice and undermine
the Judiciary, we have no choice but to mobilize Malawians to protest against Parliamentary
overreach.
Sincerely Yours,
Robert J. Mkwezalamba and Fryson Chodzi CHAIRPERSON and NATIONAL COORDINATOR respectively