1
VIRTUAL RESEARCH ASSISTANT PROJECT
Research brief provided:Memorandum on Separation of Powers doctrine in Malawi
COUNTRY / Malawi
DATE COMPLETED / 15 August 2014
INTRODUCTION
From the end of the Second World War in 1945, States have increasingly evolved in the way and manner political power is vested and wielded, towards the democratisation of their public institutions. This shift has for one, been precipitated by the resolution of the committee of nations that never again will the world allow absolute power to be wielded by a few and as a result, cause the wide spread damage to life and property that was seen in WWII.[1] Another important factor that as being played out in recent times is the sweeping spread of the desire of citizens in various states to be self-determinant and no longer be ruled on the whims of their erstwhile absolute leaders.[2] This in turn has led to an increase in democratic governments in various parts of the globe.
Democracy offers first and foremost the chance for citizens to choose their leaders. Secondly, as a check to the powers vested in the elected officials, there is the enshrining of the doctrines of rule of law and separation of powers. As noted by Sang, the idea behind the doctrine of separation of powers is that a concentration of too much power in a single entity will lead to the abuse of power.[3] The doctrine of separation of powers as posited by Montesquieu[4] and John Locke[5] embodies a number of principles, first off which is that in order to adequately balance power, there has to be a formal distinction between the legislative, executive and judicial branches of government.[6] The second principle is that the separation of power also includes the separation of functions which means that each branch of government exercises distinct roles and duties.[7] The third principle, is that of separation of personnel, which requires that each of the different branches be staffed with different officials.[8] Lastly, the separation of powers doctrine more importantly entails the principle of checks and balances where each branch of government is entrusted with special powers designed to keep a check on the exercise of the functions of others.[9] While the dynamics of the composition and powers of each branch of government varies from State to State, there is the general trend which permits each branch to check the powers of another branch of government and occasionally intrude into the functions of other branches of government.[10]
As a result, more often than not, while the legislature for example, checks the executive through reserving the power to impeach a President, the executive on the other hand checks the legislature through presidential assent to make a bill into law and veto power to overrule laws. The judiciary on its part checks the executive and legislature through its power of review and the executive and legislature check the judiciary through determining the appointment of the members of the judiciary.[11] This cycle of checks and balances ensures that every arm is accountable to another and as such is limited in the exercise of its power.
While this is the general trend of checks and balances, there is need to specifically examine the role of the judiciary and how it fulfils its own duties and checks the powers of the other arms of government.
THE ROLE OF THE JUDICIARY IN A DEMOCRATIC SYSTEM OF GOVERNANCE UNDER THE DOCTRINE OF SEPERATION OF POWERS
The new constitutions of many fledgling democracies were enacted as a result of the loss of confidence by the people in the elected arms of government.[12] Therefore, in the new constitutions of these countries it became incumbent upon the judiciary to rectify the wrongs of the old systems of governance.[13] It is largely for this reason that courts under many new constitutional democracies occupy a privileged place of being the protectors of the constitutions of their States.[14]
The judiciary in Malawi finds itself occupying this unique position also, as it has been saddled with the hallowed task of exercising jurisdiction over all issues of judicial nature along with the exclusive authority to decide whether any issue is within its competence;[15] which it shall exercise, independent of influence and direction of any person or authority.[16] In line with this directive, the judiciary has sought to be involved in the politics of states,[17] more engaged with the issues brought before it and more proactive in its determination of issues and its use of judicial review to check the activities of other branches of government.[18] This has however led to the judiciary in Malawi as with other judiciaries across the world to come under heavy attack. Critics have posited that judges are unelected and therefore cannot purport to substitute their interpretations of the constitution for those of the elected legislature as it is undemocratic, noting that the legislature and the executive, unlike the judiciary, is directly accountable to the electorate.[19] They further stress that the role of the judiciary is not to undermine the policies of any democratically elected government,[20] and that the propensity for the judiciary to be activist[21] in its outlook can be abused by politicians and civil society actors to win political battles.[22]
The term judicial activism has become a common parlance with two distinct meanings, often depending on who is using it and in the context it is being used. On the one hand, it has assumed a somewhat derogatory meaning when being used by politicians, interest groups and other actors in the public sphere to refer to judicial decisions which strike down actions by other arms of government.[23] On the other hand it has been used as legalese to describe situations where the judiciary has departed from precedence to create new authority on an issue.[24] This is viewed as a positive step by some who envision the law as constantly evolving and as such should not be bound to old rules which may either have been based on previously faulty reasoning or are no longer in tune with the realities of the times.[25]
It is therefore imperative to fully examine the role of the judiciary in Malawi vis-à-vis other arms of the government in order to help it avoid situations where it errs and oversteps while at the same empowering it to explore its authority to the full and play its role in the democratic process optimally. For as Albie Sachs, J stated, ‘excessive judicial adventurism could be as damaging as excessive judicial timidity’.[26]
As a starting point, the relevant provisions of the constitution which offer guidance on the role of the judiciary will be espoused in order to determine the extent and ambit of the judiciary’s power in Malawi. Then case law in Malawi dealing with separation of powers, judicial review and judicial law making will be examined to inquire into the current path the judiciary is taking with regards to its interface with other arms of government and whether or not there is need for any adjustments in its outlook. In order to reach such a determination, this paper will also examine global trends on the evolving role of the judiciary, with a look at England, the United States of America and South Africa and with a view to helping the judiciary in Malawi better understand its role and act accordingly. The paper will conclude with an exposition on the possible pitfalls the judiciary must strive to avoid, along with ways in which the judiciary can more effectively function as a vibrant arm of government.
THE CONSTITUTION OF MALAWI AND THE ROLE OF THE JUDICIARY
Under the current model of democratic rule in Malawi, there are three distinct arms of government; the executive, the legislature and the judiciary.[27] In a bid to avoid undue friction between the arms of government, the Constitution of Malawi has provided expressly for the nature, composition and powers of all three arms of government in three separate chapters.[28] This distinction in duties, composition and status of the three arms of government is sacrosanct, as it is provided for in the constitution. Any attempts to modify the set up as provided by the constitution is a nullity; as Section 5 of the Constitution provides that
“Any act of government or any law that is inconsistent with the provisions of this constitution shall to the extent of such inconsistency, be invalid”. [29]
As such the judiciary is both empowered and limited by the provisions of the constitution with regard how and in what manner it exercises its duties.
Section 9 of the constitution states that;
“The judiciary shall have the responsibility of interpreting, protecting and enforcing this Constitution and all laws and in accordance with this Constitution[30] in an independent and impartial manner with regard only to legally relevant facts and the prescriptions of law”.[31]
As an amplification of this responsibility, Section 103 of the Constitution provides that
“The judiciary shall have jurisdiction over all issues of judicial nature and shall have exclusive jurisdiction to decide whether an issue is within its competence[32]”.[33]
The above sections expressly state that the primarily role of the judiciary is to interpret the constitution and other laws of the land and to protect and enforce[34] the said provisions based on the facts of issues brought before it. In a bid to do this, it is empowered to assume jurisdiction over any issue, so long as it is a judicial issue brought before it for its adjudication. By the import of this, the judiciary is limited in its scope, to legal issues brought before it for adjudication, as such it cannot of its own, be adventurist and suo moto institute a case before itself and proceed to pass judgment on it. This is a cardinal tenet in the determination of the court’s powers. This is because the decisions of the judiciary are final and binding; hence such power is limited to cases where parties have subjected their autonomy in the specific matters to the court to decide on, by approaching the courts. The courts cannot assume power to adjudicate and give final judgment where no such power has been given to it by parties and any such action by the court would amount to judicial dictatorship.
While the judiciary is limited to matters brought before it, there is little or no limit to the kind of issues that can be brought before it, as long as the issues before it have legal relevance. As such, the court is empowered to assume jurisdiction over any matter brought before it by any parties. This kind of power given to the judiciary is sweeping in its ambit and it is imperative to inquire into the reasoning of the drafters of the constitution in order to better appreciate the necessity for the scope of such judicial power.
At the time of the creation of the current constitution of Malawi, there were fears that if proper safeguards were not created, the Constitution itself would be in danger of being perverted and distorted by the government that would be in power.[35] The Constitution therefore created an independent and impartial judiciary.[36] Historically, the judiciary was muzzled and unable to adequately uphold the constitution and the rights of citizens.[37] By virtue of this, the issue of separation of powers and the independence of the judiciary played an important role in the discussions leading up to the drafting of the new constitution.[38] The era where the judiciary was precluded from hearing matters brought before it because it would ‘rock the boat’ and affect the unchallenged will of the executive and legislature were sought to be emphatically brought to an end. Also the impunity exhibited in the appointment and tenure of judges prior to 1994 was sought to be remedied in order to ensure administration of justice devoid of fear or favour.[39] The new constitution thus gave the judiciary exclusive arbiter powers and the rights and in fact duty to decide whether or not any action by any party is in conformity with the laws and the constitution and to render such action null and void if seen to not be so compliant.[40] The backdrop of the powers of the judiciary in Malawi is therefore such that the judiciary is to no longer be limited in the administration of its duties.
Evidently, the new and expansive powers of the judiciary come as both a backlash to and a safeguard against previous impunity by other arms of government which stifled the judiciary in the administration of its duties. Consequently, under the new dispensation of equality of all the arms of government and the realisation of a more independent judiciary, there has been a greater tendency for friction between the judiciary and other arms of government.[41] There have been allegations that the judiciary oversteps its mandates and is overly intrusive in the affairs of other arms of government. This increasing discomfort in the other arms of government and seeming uncertainty in the judiciary call for an examination of the actions of the judiciary thus far to enquire whether indeed the judiciary has overstepped its bounds or there is simply not an apt enough understanding of the powers of the judiciary under the new constitution.
DECISIONS OF THE JUDICIARY THAT HAVE REQIRED AN INTERVENTION INTO THE POWERS AND ACTIONS OF OTHER ARMS OF GOVERNMENT, POST THE 1994 CONSTITUTION.
Through the 1994 constitution, the judiciary has been assigned as the watchdog and protector of the Constitution.[42] However in the exercise of this sacred duty, the court is limited to the cases brought before it for adjudication. In essence the court can only be moved to act by litigants;[43] and the fact that Malawi confronts the challenges of high levels of poverty and illiteracy greatly hamper the practical application of the court’s powers.