Speaker of the National Assembly Sameer Suleman’s attempt to establish ad hoc committees to investigate 12 issues of public concern has hit a legal snag, following a judicial review application and injunction obtained by a private citizen.
The citizen, Austin Mkoka, filed an urgent application against Suleman and Parliament, asking the High Court to determine whether the Legislature has the constitutional authority to establish the proposed committees and conduct the investigations.
Through his lawyer, Noel Supedi, Mkoka also sought and obtained a court order halting Parliament from proceeding with the inquiries until the High Court interprets the extent of the Legislature’s powers.
In the court documents, Mkoka argues that the Speaker’s intent to probe alleged governance failures at key state bodies, including the National Oil Company of Malawi (Nocma), Blantyre Water Board, Electricity Supply Corporation of Malawi (Escom), Electricity Generation Company (Egenco), Power Market Limited (PML), and the Department of Immigration, is unreasonable and executed in bad faith.
“The claimant is being deprived of his right to enjoy effective governance of public institutions, contrary to Section 12(1)(a) and (b) of the Constitution,” the application reads in part, adding that public authorities must operate within strict legal limits.
In an interview yesterday, Supedi said he has been given 14 days from the day of application to make written submission before the court and thereafter a date will be set for the judicial review.
He, however, said the court has granted them an injunction and their wish, meaning the adhoc committees cannot proceed with the inquires until the outcome of the judicial review.
The proposed the establishment of ad hoc committees to investigate several public institutions has drawn criticism from the ruling Democratic Progressive Party (DPP) of which Suleman is a member and serves as organising secretary with the party questioning whether the Speaker is pushing Parliament beyond its constitutional oversight mandate.
On Thursday, DPP secretary general Peter Mukhito criticised Suleman over the proposed investigations arguing that Parliament should operate within the limits of its oversight role.
Government, however, has distanced itself from the legal proceedings involving Suleman, saying it neither initiated, directed, sponsored, facilitated nor funded the case.
In a press statement issued yesterday and signed by Minister of Information and Communications Technology Shadric Namalomba, government said the individual who approached the courts did so independently and in his own capacity.
Namalomba said Mkoka’s actions should, therefore, not be attributed to government or the Executive.
“The individual who approached the courts has done so independently and in his own capacity. The government understands the public interest in this matter and wishes to reassure Malawians that it respects the constitutional mandate and independence of Parliament, the office of the Speaker and the independence of the Judiciary. Government remains committed to the rule of law, constitutional governance and the proper functioning of all institutions of our democracy,” he said.
Meanwhile, private practice lawyer Benedicto Kondowe said the action by Mkoka brings into focus the constitutional balance between Parliament’s oversight powers and the principle of separation of powers.
He said while Parliament has a clear mandate to hold public institutions accountable through inquiries, that power must be exercised within the limits of the Constitution and cannot encroach on functions reserved for the Executive, investigative bodies or the courts.
“Section 41 of the Constitution guarantees every person access to the courts for the determination of legal issues and effective remedies. Therefore, a private citizen’s decision to seek judicial review is not an attempt to undermine Parliament, but a legitimate constitutional mechanism to ensure that all public authorities, including Parliament, act within the law.
“The court’s role will be to determine whether Parliament’s proposed action is a lawful exercise of oversight or whether it crosses into areas that may compromise institutional independence. The broader principle is that accountability must be pursued, but always within the constitutional framework that separates and balances State powers,” said Kondowe.
The 12 issues of public concern ranges from fuel supply and pensions to electricity, mining, passport services and prison conditions and Nocma was expected to a parliamentary inquiry over allegations that the company was defrauded.
