Simon & Ors. v Attorney General (Constitutional Referral 9 of 2015) [2017] MWHC 63 (1 March 2017)

Malawi Judiciary

IN THE HIGH COURT OF MALAWI

PRINCIPAL REGISTRY CONSTITUTIONAL REFERRAL CASE N0.9 OF 2015 BETWEEN:

ENELESSI S IMON -and-

TRIPHONIA RAPHAEL -and-

ESNART FRANK - VERSUS-

THE ATTORNEY GENERAL CORAM: THE HON. CHIEF JUSTICE A. K. C. NYIRENDA, SC Alfred Majamanda, Counsel for the App licant Kap h ale , Attorney General, Counsel for the Respondent Mthunzi (Mrs.), Law Clerk Mwafulirwa (Mrs.), Principal Person al Secretary

RULING The three applicants in this matter seek certification of their case for determination by the High Court , sitting as a Constitutional Court. It is the applicants' case that the issues which they seek determination of fall under section 9 of the Courts Act, which I will refer to on some occasions hereinafter as section 9. I should give a b rief background of the matter to put the discussion in context. Enelessi Simon, Triphonia Raphael a nd Esnart Frank, are women from different parts of Malawi who alleged to have been raped. They brought their complaints to relevant authorities and their respective cases were brought to magistrate court s In all the in their respective areas of proximity. cases the court either discharged the a ccused or In each case the basis of the acquitted them. discharge or acquittal was due to the courts' finding that there was no evidence to corroborate the complainants' evidence. The cases were spread through the years in the near past. Enelessi Simon's case was in 2006 when she was only 14 years. Triphonia Raphael's case was in 2010when she was only 13 years old. Esnart Frank's case was in 2013 when she was 30 years old. The criminal cases against all the applicants were therefore long concluded. It is for this reason that the Attorney General is of the viewthat the chapter on the cases was long closed as there must be an end to litigation

. they seek certification, The main issues which the applicants raise,on which the of the constitutionalityof corroboration in sexual offences. In the Notice of Intention to Sue, pursuant to section 4 of the Civil Procedure (Suits by or Against the Government or Public Officers) Act (Cap 6:01), the issues are summarised as follows: relate requirement to "The rationale for the Corroboration Rule requiring special evidentiary caution in sexual offences is based on the discriminatory, harmful and mistaken assumption that women make false allegations of sexual assault .... have jurisdictions The Corroboration Rule originates from English case law and is a relic of Ma lawi's Colonial past. However the United Kingdom and numerous since other abolished the Rule on the basis of inconsistency with modern human rights standards and in recognition that t he Rule lacks any rational basis .. . Our clients will make application to the High Court of Ma lawi challenging the constitutionality of the common law Corroboration Rule. has that under violated the Our clients will claim their Government the rights funda mental Constitution and under international human rights law, as a result of the harms caused by the Corroboration Rule, which denies them access to Our clients will seek a justice. declaration that the Corroboration Rule is unconstitutional, as well

as the compensation monetary unlawful violation of their rights and freedo ms." for What should be explained, following the above background, is that there are no proceedings by the applicants before any court at the moment apart from this application for certification. The application is therefore "stand alone" in that it is made without supporting proceedings before any court. The Notice of Intention to Sue Government referred to above is the stage at which the matter . lS. It is for that reason that the stage at which the matter has been placed before me hasturned to be the real issue for consideration because of what we are used to in constitutional referrals which are invariably premised on ongoing proceedings before courts. The question is whether the applicants, and any applicant for that matter, can approach the Chief Justiceforcertificationof a matter as section 9,directly constitutional pursuant without first instituting proceedings before another court. to As will be apparent at this point, central to the discussion is Section 9 (2), and in passing section 9(3), of the Courts Actand the rules of procedure prescribed for that purpose. Section 9,in full, states: (1) Save as otherwise provided by this Act, or by any other Act for the time being inf orce, every proceeding in the High Court and all business arising thereout shall be heard and disposed of by or before a

single Judge. (2) Every proceeding in the High Court and all business arising thereout, if it expressly and substantively re lates to, or concerns the interpretation or application of the provisions of the Constitution, shall be heard and disposed of by or before not less than three judges. (3) A certification by the Chief Justice that a proceeding is one which comes within the ambit of subsection(2) shall be conclusive evidence of that fact." Section (3) has, since the hearing of this matter, been amended. What I quote above is what the section provided at the time of the application and therefore what is relevant for purposes of the application . As I observe latter it is more to section 9(2) that this matter is about. referral The position by the Attorney General is that only an original court can move the Chief Justice for certification of a the President. That in the present matter t he request is not coming from the President or from an original court. It is coming directly from individual litigants and in cases that were long d isposed of for judgment . Thatthe through certification is irregular for those reasons . in addition application to The Attorney General submits further that section 9(2) talks a bout a "proceeding." The Chief Justice, to certify a in section 9 ( 3), proceeding. It is argued that in the in stant case there is no 'proceeding' for the Chief Justice

to certify. is being asked Mr. Majamanda for the applicants does not agree with the Attorney General's position and submits that section 9(2) of the Courts Act p ermits for direct applications to the Chief Justice in the manner the applicants have done. There is here a very interes ting discussion that we m ust engage in; an important one for that matter. The In the case of Geofrey Doff Bottoman and Pe terPetrosTembo Republic , v. Miscellaneous Criminal Application , Number 16 of 2013, Justice Kenyatta Nyirenda discusses the application of Section 9 of the Courts Act and the Reading Rules established for that purpose . Justice Nyirenda's decision, the analysis is much about whether it is necessary in all cases of a constitutional nature that a certificate by the Chief Justice be sought and obtained. His Lordship looks at the scheme of section 9 of t h e Courts Act read (High Court) (Procedure on the Interpretation or Application of the Constitution) Rules, later referred to as the Rules, and concludes that it is not in a ll instances that a certificate by the Chief Justice is necessary. together with theCourts Let me put the various positions in this way, hopefully s imple enough to the ordin a ry mind, 1n the nature of the subjectin question . According to the Bottoman and Tembo case, it is permissible to empanel a constitutional sitting of the High Court without the

certificate of the Chief Justice in some instances. The learned Judge in that case bases his reasoning partly, on a reading of Rule 2 which states: "These Rules shall apply t o all proceedings on the interpretation or application of the Constitution which are certified by the Chief Justice in accordance with section 9(3) of the Act." the scope of According to His Lordship the language of Rule the is unambiguous. That application of the Rules is limited to p roceedings which have been certified by the Chief Justice in accordance with section 9(3) of the Act. That by implication, the application of theRules does not extend to p roceedings (a) on the inter p retation or application of the Constitution which have not been certified by the Chief Justice in accordance with section 9(3) of the Act (b) on the in t erpretation or application of the Constitution wh ich do not require certification and (c) on the interpretation or application no application for certification has been made. the Constitution where of time I must say there is quite some reasoning in the manner His Lordship discusses the sch eme. I am sure that at an appropriate it will be necessary to determine which insta n ces do not require certification by the Chief J ustice and who then determines when a certificate is required and when it shall not be required. Can the original court dispense with the certificate by

the Chief Justice? Will the determinationof a matter as being constitutional follow the path suggested by Justice Mwaungulu in Reserve Bank of Malawi v. Voluntary Finance Liquidation Constitutional Cause Number 5 of 2010 which attempts to circumscribe instances that fall under section 9(2). Shall we n ot agree that of Malawiin Bank it is not easy to circumscribe the scope of section 9(2) in view of the phrase " ... every proceeding ... " as argued by Justice Nyirenda in the Bottoman and Tembocase when he says: I presume "Where no application for referral has been made, the argument is that the original court will lead the process of determining that a constitutional matter has the High arisen and presumably Court will be compelled, by that determination alone, to empanel as a constitutional court. If this process is outside the rules, as must be the argument, we would have to consider how the proceedings will be managed. Will it be the ruling of the original raise court the will that questionsf or constitutional determination? Shall the parties fall back on the Rules and frame the the issues constitutional for determination. filed with panel be to made There could be further observations to the be whole about constitutional scheme. Section 9(2) relates to proceedings in the High Court. The exact words are "Every proceeding in the High Court and all business arising

therefrom.... " The is sues that are discussed by Justice Mwaungulu and Justice Nyirenda will remain cardinal and must, in the course of time be resolved in the scheme of constitutional referrals that we envisage as a jurisdiction. The real issue in the matter before me, going back t o where I started, is to determine what is meant by the phrase t he High proceeding Court ... "What does not come out clear from this phrase is whether the "proceeding" is that which is already in the High Court. In other words, does section 9 (2) presuppose that there is a proceeding the High Court. "every in It is yet notfar-fetched to understand the phrase as r eferring to that which the Chief Justice will have certified, as the proceeding. In that sense there need not be a pre-existing matter in the High Court; in which case the proceeding will be that which the Chief Justice will certify. Let us then look at it in this way. Ifthe understanding is that the proceeding m ust be that which is a lready before the High Court, then we might have problems with referralsin cases that arebefore subordinate courts which the Rules refer to. Technically section 9(2) will have excluded referrals in matters that are before the subordinate courts. If the understanding is that there need not be an existing proceeding before the High Court and that it is the certificate by the Chief Justice that places the m

atter before the constitutional panel of t he High Court, then the provision would allow for r eferrals from all original courts. It w ould also allow for other referrals in situations where the Chief Justice might consider and determine that the matter appropriately falls within section 9 (2 ) of the Courts Act. It is here that Counsel Majamanda seems to have a point. Rules 4 , on commencement of proceedings , provides: "Any proceedings under these Rules shall be commenced by an originating motion in Form 2 of the Schedule, within after the Chief Justice certification by pursuant to section 9(3) of the Act; but so however that:- fourteen days (a) in t he case of a referral by the (l)(h) of President under section 89 the Constitution, the proceedings shall be commenced by a notice of referral; and (b) in t he case of a referral by any other court under the proceedings shall be commenced by a notice of referral in Form 3 of the Schedule." rule 8, The Ru le starts with commencement of referrals generally which shall be in Form 2, but that in the case of a referral by the President it shall be by notice of ref err al and in t he case of referral by other courts it shall be by notice of referral in Form 3 in the Schedule to the Rules. As a m atter of fact, Part IV of the Rules might lend further support to the fact that what wa s envisaged was referrals in general, referrals by

the President a nd then referrals by other courts. Part IV of the Ru les is actually divided int o these three areas. There is muchthat could be discussed about Section 9 of the Courts Act and the Rules thereto. Perhaps this only admits to the wider challenges that are identified by both Justice Mwaungulu and Justice Nyirenda in the cases referred t o, over and above the observations that have been raised by the Attorney General and Counsel Majamanda in the present application. We need to look at the entire scheme of constitutional referrals again and redraft both the enabling stature as well as the Rules. Both have served us for the period in use and have en abled us to unravel a wide ranging issues that we must take into consideration for the future. As I state earlier, the Courts Act has since been amended by the Courts (Amendment) Act Number 2 6 of 2016. The amendment will have responded to some of the concerns raised by Justice Mwaungulu and Justice Nyirenda and not so much a bout what has concerned us in this matter. Having said all this and leaving ourselves with work uncom pleted, I wish to reiterate what I said about referrals in Court Reference No 2 of 201 5 , IN THE MATTER OF DR. BAKILI MULUZI AND THE ANTI-CORRUPTION BUREAUANDIN THE

MATTER OF SECTION 101(2) OF THE

THE MATTER OF

CONSTITUT IONANDIN

SECTION

THE

CONSTITUTIONANDIN THE MATTER OF THE COURTS (H IGH COURT) (PROCEDURE ON THE

INTEPRETATION OR APPLICATION OF THE CONSTITUTION) RULES, where I said: 42(2)(F) OF to on the relates whatsoever, "It is unthinkable to have a m atter before our courts that has no bearing, none rights, responsibilities and obligations of the human being. Virtually every cause of a ct ion rights, responsibility of obligations and human beings in one way or another. In the course of every litigation before court, i t is about the interpretation or application of individual or group rights. With a permissive constitution as ours, every time courts undertake they are, such a necessarily, interpreting or app lying responsibility rights, rights, labour constitutional rights and obligations, through from f amily contractual tortious ob ligations, and responsibility and to responsibilities under the criminal law. Constitutional interpretation or application therefore runs across and is always before our courts in different ways, at different levels, but all the time." rights The reason why these sentiments came out in a lat ter paragraph where I said: I expressed to make " .... we should be concerned wit h any referrals an attempt administrative arrangement. Court referrals could very easily become an unruly horse or a runaway train if not property regulated and j udicially determined. It would be very easy for referrals common t ool to practice and yet a stifling proceedings. it is

not difficu lt to see how referra ls could cripple proceedings if all the litigants had to cry out "the Constitution", and by it alone gag the hands of the original court as well as the Chief Justice. Referra ls should a lethal . . . t o do was to become the ref ore not be left to be as a matter of course. is for these p aramount and It overriding considerations the Courts Act, together with the Rules, have laid down the procedure that must be followed as well as the requirements be that accomplished in referrals." must that My conviction therefore, as manifest in the views above, is that referrals must be regulated a s we have done by Section 9 of the Courts Act and the Rules. Without a regulatory frame work, our judicial system could and overwhelmed with such proceedings. inundated become easily It is acknowledged though that we n eed to look at both the Courts Act and the Rules again and clarify a number of issues that are still causing us technical difficulties. Reverting specifically to the matter at hand,the position is that the genesis t hereof is cases t hat were long concluded after full trial. There were no appeals made. From the Notice of Suit against Government, the applicants intend to challenge not only the constitutionality on seek corroboration but compensation for the unlawful violation of rule to further the of freedoms, as they put their rights and it.

Allowing a referral in this context would not just be for the purpose of considerin g the constitutionality of issues raised as the regards the rule on corroboration, b ut it would alsoinevitably entail a review of the evidence in the cases in order to establish in what way a nd to what extent the rule was used to the detriment of the applicants. We can all see, and I hope we do, that that would be tantamount to indirectly allowing for a review or a n appeal in the cases way out of time. That is not within my authority. I would therefore not allow this application . Pronounced this 1st Day of March,201 7, at Blantyre .