Attorney General faults Judiciary

The Attorney General (AG) has faulted the Judiciary for issuing a court order compelling the Speaker of Parliament to ignore a new opposition seating plan, arguing it is an infringement on separation of powers.

AG Thabo Chakaka Nyirenda has raised the issues in his submission to the High Court of Malawi in an application seeking to vacate the order granted to Mangochi South West legislator Shadric Namalomba restraining the Speaker from recognising decisions by Leader of Opposition in Parliament Kondwani Nankhumwa to appoint a shadow cabinet and change the seating arrangement for Democratic Progressive Party (DPP) legislators.

The injunction was served to Speaker of Parliament Catherine Gotani Hara through the AG’s office

In his submission, the AG describes the order as an infringement of parliamentary privilege contrary to the provision of Section 26 of the National Assembly (Powers and Privileges) Act, which states that neither the Speaker nor any officer of the National Assembly shall be subject to the jurisdiction of any court in respect of the exercise of any power conferred on or vested in the Speaker or such officer by or under the Act.

Nyirenda says the Act was formulated to allow legislative bodies perform their constitutional functions effectively without disruption from outside bodies.

He cited a number of court orders in the past that pointed to the fact that courts do not need to meddle in the business of the National Assembly with orders.

In the AG’s submission, which is in support of the Speaker who is a party to the case, Nyirenda further observed that the matter in question was internal to the DPP and required a political solution.

Reads the AG’s submission in part: “Further, courts have repeatedly held that intra-political party disputes and indoor management political party matters do not require the court’s intervention.

“The decision complained of is indicative of internal disputes within the Democratic Progressive Party, which should be resolved and enforced politically without the court’s involvement.”

In an interview yesterday, Nyirenda clarified that his application was on behalf of the Speaker, not Nankhumwa, who has his own lawyers.

The AG said the interpartes hearing of the case is scheduled for March 31.

When the issue of the injunction was first brought into the House two weeks ago, Ntcheu West legislator Simeon Salambula (UTM Party) asked the Speaker if the court order had any consequences, bearing in mind that members of Parliament (MPs) enjoy privileges and immunities during meetings.

He was referring to Section 60 of the Constitution which states that the Speaker, Deputy Speaker and MPs shall, except in cases of treason, be privileged from arrest while going to, returning from or while in the precincts of the National Assembly and shall not, in respect of any utterances that form part of the proceedings in the National Assembly, be amenable to any other action or proceedings in any court, tribunal or body other than Parliament.

While the Speaker gave no clear response, former Speaker of Parliament Louis Chimango, a lawyer by profession, said the Speaker or an MP should not be served with any court orders during the sitting of Parliament.

Drawing from his own experience as Speaker, he said he used to refuse to be served with court orders to avoid compromising his role and that of the National Assembly.

Chimango said: “Can you serve it on the Speaker while Parliament is in session? My view is you do not do that and don’t do it. Don’t serve it on the Speaker because it is not right, because that is another arm of government doing its part. In fact, during my time I refused to be served. If someone tried to do it, I would refuse.”

This is not the first time that the court has issued orders to Parliament restraining it from doing something.

In 2013, Blantyre Bangwe legislator Henry Shaba obtained an injunction against his dismissal from the NationalAssembly after then Speaker Henry Chimunthu Banda declared his seat vacant for crossing the floor, in line with Section 65.

During the same year, three other MPs, namely Ibrahim Matola, Alfred Mwechumu and Shamil Asibu who were elected in 2009 on a United Democratic Front (UDF) ticket, obtained injunctions stopping the Speaker from acting on their petitions as filed by the UDF.

UDF had petitioned the Speaker to have the legislators expelled from the House for crossing the floor.

Shaba asked the court to order that he retain his seat pending a judicial review whereas the other MPs stopped the Speaker from acting on the petition.