IN THE MALAWI SUPREME COURT OF APPEAL

AT BLANTYRE

MSCA CIVIL APPEAL NO. 18 OF 1996

(Being High Court Civil Cause No. 63 of 1996)

BETWEEN:

THE ATTORNEY GENERAL ………………………………….………….APPELLANT

-and -

FRED NSEULA ………………………….………………………….1ST RESPONDENT

MALAWI CONGRESS PARTY………………………….………...2ND RESPONDENT

BEFORE: THE HONOURABLE CHIEF JUSTICE BANDA

THE HONOURABLE MR. JUSTICE UNYOLO, JA
THE HONOURABLE MR. JUSTICE VILLIERA, JA
Nyirenda , Counsel for the Appellant
Chirwa, Counsel for the 1 st Respondent
Mhango, Counsel for the 2nd Respondent
Kadyakale, Official Interpreter
Kuseke, Recorder

JUDGMENT

Banda., C.J.

This is an appeal against the Order of the High Court made on 24th April 1996
when Mwaungulu J held, that the High Court has jurisdiction over the exercise of the
powers by the Speaker of the National Assembly which are vested in him by Section
65(l) of the Constitution.

The genesis of this case started on the 25th October 1995 when the Hon. Speaker
of the National Assembly declared the parliamentary seat of Mwanza North Constituency
vacant ostensibly on the ground that the incumbent member of Parliament had crossed
the floor from the United Democratic Front to the Malawi Congress Party. "Crossing the
Floor" is defined by Section 65(l) of the Constitution.

It is important to note at the outset that the Parliamentary Standing Orders make
no reference to nor do they attempt to define what "Crossing the floor" means. The

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decision of the Speaker to declare vacant the Constituency of Mwanza North was made
after a Motion was moved to declare the seat vacant. Members of Parliament from both
sides of the House contributed to the motion and it was only after the debate on the
motion had been concluded that the Speaker came to the decision that the incumbent
Member of Parliament had, in terms of the relevant provision of the Constitution, crossed
the floor. The Hon. Speaker could have had no other statutory or Legislative authority in
mind for his decision other than Section 65(l) of the Constitution.

Mr Nyirenda, Counsel for the Attorney General, has contended that the High
Court has no jurisdiction or control or authority to judicially review the decision of the
Speaker of the National Assembly because anything that is said in course of the
proceedings of the National Assembly cannot be reviewed by the Courts because it is
absolutely protected under the privilege given by Section 60(l) of the Constitution. It is
important to look at the provisions of Sections 60(l) and 65(l) of the Constitution. Section
60(l) is in the following terms:

"The Speaker, every Deputy Speaker, every Member of the National Assembly and
every member of the Senate shall, except in cases of treason, be privileged from
arrests while going to, returning from or while in the precincts of the National
Assembly or the Senate and shall not, in respect of any utterance that forms part
of the proceedings in the National Assembly or the Senate, be amenable or open
to any other action or proceedings in any court, tribunal or body other than
Parliament".

And Section 65(l) is in the following terms:

"The Speaker shall declare vacant the seat of any member of the National
Assembly who was at the time of his or her election a member of one political
party represented in the National Assembly other than by that member alone but
who has voluntarily ceased to be a member of that party and has joined another
party represented in the National Assembly".

Section 103(2) of the Constitution provides that the Judiciary shall have jurisdiction over
all issues of a judicial nature and shall have exclusive authority to decide whether an
issue is within its competence. Mr. Nyirenda for the Attorney General has contended that
Section 103(2) does not give Courts jurisdiction over issues of a non-judicial nature. He
has further contended that where the Constitution provides that a matter is not amenable
or open to the jurisdiction of the Courts, such matter is by virtue of that provision not of a
judicial nature. He has submitted that the Constitution has, by Sections 60 and 53(5),
made the exercise of power by the Speaker not reviewable by the Courts. Mr. Nyirenda
has therefore submitted that since Section 108(2) provides that the High Court's power of
judicial review is subject to the provision of the Constitution which may provide to the
contrary, he contends that Sections 60 and 53(5) provide such limitation on the powers of
judicial review by the courts. He has accordingly submitted that the lower Court erred in
holding that the High Court has plenary jurisdiction on all issues and decisions of the
Government

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 Mr. Chirwa, Counsel for the respondent, has contended that the lower court was
right in holding that the High Court has jurisdiction to review the Speaker's exercise of
powers. He has submitted that where a member's human rights have been violated by the
decision of the Speaker such a member should be allowed to challenge the decision in
Courts.

A number of issues were canvassed in the lower court which we feel had only a
peripheral relevancy to the main issue. It seems to us that the meaning of the words
"jurisdiction" and "Government" were not crucial to the issue. There is no doubt in our
mind and you would think this is clear from Section 4 of the Constitution that all organs
or branches of Government are bound by the provisions of the Constitution: Vide also
Section 12(vi) and Section 15(l) of the Constitution.

The Crucial issue in the appeal is whether the High Court has power to review the
decision of the Speaker which he has made in the course of the proceedings of the
National Assembly. In our judgment there can be no doubt that under Section 60(l) of the
Constitution any utterances which are made in the National Assembly and form part of
the proceedings are privileged and are not amenable to the Courts. But before we
consider the actual words used in this case and whether they are covered by
parliamentary privilege we feel that it is important to once again reiterate or repeat the
general principles, and perhaps extend them, which should govern the relationship
between the National Assembly and the Courts.

It is our view that the correct legal position is that the National Assembly is not
subject to the control of Courts in relation to matters which are governed by the
Parliamentary Standing Orders and which relate to the internal proceedings of the
National Assembly. While it is true that a resolution or ruling or decision of the National
Assembly is not law and cannot, therefore, change the law of the land, Courts have no
right to enquire into the propriety or rightness of a resolution of the National Assembly
where for instance it restrains a member from doing things, within the walls of the
National Assembly, which, under the general law of the land, he has a right to do. The
Constitution has given the National Assembly power to regulate its own internal
procedure: Vide Section 56(l). What happens inside the National Assembly and which is
in accordance with the Parliamentary Standing Orders cannot be amenable to the courts.
The Standing Orders give power to the Speaker and the National Assembly to keep order
in the House and can impose disciplinary measures on members and such disciplinary
measures are not amenable to Courts.

It is only the National Assembly which can change, or remove or amend any disciplinary
measure imposed: Vide part xxv of the National Assembly Standing Orders. This is so
because courts, under a democratic Constitution as we have here, have no power to
interfere with matters relating to the internal management of the proceedings of the
National Assembly over its members inside the House. Its right to impose discipline
within its walls is absolute and exclusive: vide Bradlaugh v Gossett (1884) 12
O.B.D.276. As Lo rd Ellenborough said in the case of Burdett v Abbott 14 EAST 1 at
148 "the House would'sink into utter contempt and inefficiency

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without it ….”

As this Court said in the case of Attorney General v Dr. Mapopa Chipeta
MSCA Civil Appeal No. 33/94 the justification for these privileges for the National
Assembly is that they are essential for the legislative body to be able to perform its
constitutional function effectively and must be free to conduct its own internal
proceedings without intervention from outside bodies. This is given constitutional -force
by Section 53(5) of the Constitution which requires that the Speaker shall discharge his or
her functions and duties "independent of the direction or interference of any. body or
authority save as accords with the express will and the Standing Orders of the Chamber
in which he or she sits".

Where a dispute arises, as it is here, concerning a matter of parliamentary

privilege courts will not enquire into the existence of the privilege nor enquire into the
internal proceedings of the House. Courts will only intervene to ensure that the House
does not extend its privileges. The Courts will continue to assert its jurisdiction to
determine the existence and extent of any privilege.

We are satisfied that the issue on which the Speaker was requested to give his
decision was a Constitutional one. The motion which was moved was in effect calling
upon the Speaker to interpret a provision of the Constitution and to say, after listening to
the debate on the motion, whether or not the incumbent Member for Mwanza North
Constituency had crossed the floor. We must therefore determine whether parliamentary
privilege extends to Constitutional interpretation. There can be no doubt in our judgment
that the Speaker was being called upon to interpret the Constitution. Mr. Nyirenda has
submitted that the parliamentary privilege which Sections 60(l) and 53(5) create extend to
the interpretation of the Constitution. Mr. Nyirenda has contended that because of this
privilege the interpretation of a Constitutional provision by the Speaker however
erroneous it may be cannot be challenged in Court. We find that proposition
extraordinary as it negates the very basis of a democratic society which is premised upon
the doctrine of separation of powers. The primary function of the Legislature as set out In
Section 8 of the Constitution does not include the interpretation of the Constitution. That
is a primary function of the Judiciary as set out in Section 9 of the Constitution. That
section provides:

"The Judiciary shall have the responsibility of interpreting, protecting and

enforcing this Constitution and all laws in accordance with this Constitution in an
independent and impartial manner with regard only to legally relevant facts and
the prescription of law".

Courts have, therefore, a Constitutional responsibility to review all constitutional

decisions because they are the protectors and guardians of the fundamental law of our
Country. Courts have this responsibility not only on matters involving fundamental
human rights of a member which, in our view, would restrict the constitutional powers of
review by the Courts. And to say that "courts have to puncture the sanctity of privilege
and immunities of Parliament where there is a violation of or threat to human rights" is a

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very broad general statement. When the National Assembly imposes discipline on
members in accordance with the Standing Orders it will inevitably violate the members'
human rights and "to puncture the privilege" each time that happens will leave the
National Assembly without any privilege and to use Lord Ellenborough's dicta in the
Burdett v Abbott case "the House would sink into utter contempt and inefficiency.........”

We have looked at all the authorities cited and which were available to us. Some
of the cases, although they deal with privilege, were not relevant to parliamentary
privilege which is the main focus in this appeal. We are satisfied, after hearing arguments
from both Counsel and reading the authorities cited to us, that the High Court has
jurisdiction to review the Speaker's decision on any constitutional provision. The
privilege which Sections 60(l) and 53(5) provide does not, in our judgment, extend to
utterances, by the Speaker or any member of the National Assembly which impinge on
the interpretation of the Constitution. Here the Speaker was clearly interpreting a
constitutional provision and neither he nor the National Assembly itself can extend
parliamentary privilege to the interpretation of the fundamental law of the country which
is and must remain the constitutional responsibility of Courts. The Appeal. must therefore
fail and it is dismissed.(REASON FOR JUDGEMENT)
We have considered the issue of costs. The appeal raised a very important
constitutional issue and it was necessary that it should be canvassed or in the Supreme
Court of Appeal. The proper order in the circumstances will therefore be that each party
will pay its own costs.

DELIVERED in open Court this 14th day of April 1997 at Blantyre.

Sgd:
R.A. Banda
CHIEF JUSTICE

Sgd:
L.E. Unyolo, JA

Sgd:
J.B. Villiera, JA