Court blocks Speaker cross-examination
The High Court of Malawi has dismissed an application by Mangochi South West legislator Shadric Namalomba to have Speaker of Parliament Catherine Gotani Hara cross-examined in a case on regulating some opposition business in the House.
Delivering his ruling on preliminary applications, presiding judge Mzonde Mvula yesterday also rebuffed Namalomba’s request to have the opposition Democratic Progressive Party (DPP) join the case as friends of the court and to also have the party’s secretary general Grezelder Jeffrey cross-examined.
The court’s ruling comes after Attorney General (AG) Thabo Chakaka Nyirenda, who represented the Speaker, objected to Namalomba’s application and asked the court to set it aside on the basis that it was an abuse of the court process.
The AG further said the matter in question was internal to the opposition DPP and required a political solution.
In his judgement, Mvula concurred with Nyirenda, saying the application to cross-examine the Speaker was an abuse of the process as it violated Section 5 of the National Assembly (Parliamentary Privileges) Act.
The judge said: “Extending it to the current situation where Parliament rose sine die, still becomes abuse of the process.
“The claimant [Namalomba] should have applied for leave before court, setting aside privilege, raising constitutional issues the case raises to justify service while the chamber is in motion. Anything short makes service defective.”
Mvula further argued that the issues Namalomba wished Hara and Jeffrey to be cross-examined on could best be done during hearing of the substantive application for judicial review.
Similarly, the judge said the application for leave to join by judicial review filed by the DPP was also an abuse of process because the erstwhile governing party was already a party to the proceedings.
“The court has inherent jurisdiction to monitor compliance that the adversarial system does not mean any party can litigate as they wish. The Civil Procedure Code must strictly be complied with. Any perceived abuse of process must be expunged without winching at all,” he said.
The judge also described Namalomba’s application to cross-examine Jeffrey, who has not sworn any statement in the proceedings as “clutching at the straws”.
Reacting to the ruling in an interview yesterday, Nyirenda said he was looking forward to the substantial hearing whose date is yet to be set.
In March, Namalomba obtained an injunction stopping Leader of Opposition in Parliament Kondwani Nankhumwa from making any decisions without consulting the DPP.
The order also compelled the Speaker of Parliament to only accept communication from Nankhumwa, in his capacity as Leader of Opposition in Parliament, upon seeing proof of consultation from his party.
Namalomba’s injunction, served to the Speaker through the AG’s office, stirred debate and some legal minds, including the AG, described it as an infringement of the principle of separation of powers.
The AG argued that the order infringed 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.
