S (on the application of Malawi Law Society) v Registrar General (as Registrar of Political Parties) (Judicial Review Case 14 of 2022) [2025] MWHCCiv 5 (12 March 2025)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL DIVISION JUDICIAL REVIEW CASE NUMBER 14 OF 2022 BETWEEN: THE STATE (On the application of the MALAWI LAW SOCIETY) CLAIMANT REGISTRAR GENERAL (AS REGISTRAR OF POLITICAL PARTIES) DEFENDANT CORAM: JUSTICE M. A. TEMBO Mpaka, Counsel for the Claimant Mwabungulu, Counsel for the Claimant Masamba, Counsel for the Claimant Kalusa, Counsel for the defendant Mankhambera, Court clerk JUDGMENT 1. This is the decision of this Court made under Order 19 Rule 20 (1) of the Courts (High Court) (Civil Procedure) Rules, on the application by the Malawi Law Society for judicial review of the defendant’s decision, namely to omit (or the failure of the defendant in relation of exercise of public functions under the Political Parties Act 2018) to supply to the claimant within 15 days or without undue delay thereafter information on political party funding as requested in the claimant’s letters to the defendant dated 20" July 2021 and 30" September 2021. The defendant opposed this application. . The issue that this Court must determine on this judicial review application is whether the defendant acted lawfully in failing or omitting to supply the information requested by the claimant regarding political party funding and related matters under the Political Parties Act. . It must be observed that authorities abound to the effect that as this 1s a civil matter, the claimant bears the burden of proving its case on a balance of probabilities. . This Court notes that this matter suffered delay within the Court as the parties sought, over a long period, to resolve the issues between themselves out of court but to no avail eventually necessitating the hearing resulting in the present decision. . By the present application for judicial review, the Malawi Law Society seeks the following reliefs, namely, 1) A declaration that the defendant is bound to strictly follow the dictates as read together of section 37 of the Constitution and Section 36 of the Political Parties Act in seeking to exercise the public functions of the office of the Registrar of Political Parties and any matters concerning the administration of that office under the law. 2) A declaration that on the true construction of section 36 of the Political Parties Act as read with section 46 of the General Interpretation Act and section 15 of the Access to Information Act a public officer in the position of the defendant, can reasonably be expected to deliver feedback to an applicant for information under the Political Parties Act within 15 days of the request or without a due delay thereafter. 3) A declaration that on the true construction of sections 64 (d) of the Legal Education and Legal Practitioners Act as read with the Constitution [sections 37 and the 12 (1) (a) and (f), the Political Parties Act [section 36], and the Access to Information Act [section 15] as read with section 46 of the General Interpretation Act, the defendant is bound to respond to the Malawi Law Society within 15 days or without undue delay thereafter following the delivery of the demand for information on political party funding as required in the Malawi Law Society letters of 20" July 2021 and 30 September 2021. 4) A declaration that on the true construction of sections 64 (d) of the Legal Education and Legal Practitioners Act as read with the Constitution [section 37 and 12 (1)(a) and (f), the Political Parties Act [section 36] and Access to Information Act [section 15] as read with section 46 of the General Interpretation Act, If for any reason the defendant is unable to respond to the Malawi Law Society within 15 days of delivery of the demand for information on political party funding, the defendant is bound to respond within a reasonable time thereafter upon disclosing a sufficient reason that it cannot respond within the prescribed 15 days or without undue delay. 5) A declaration that on the true construction of sections 64 (d) of the Legal Education and Legal Practitioners Act as read with the Constitution [sections 37 and 12 (1)(a) and (f), Access to Information Act [section 15] the Political Parties Act [section 36] the defendant is in breach of his statutory responsibility by, to date, failing to respond to the demand for information on political party funding as required in the Malawi Law Society’s letters of 20" July 2021 and the 30" September 2021 and /or any reasonable time thereafter. 6) A declaration that in the circumstances, the defendant’s failure to respond or supply information requested by the claimant suffers undue delay and is unconstitutional, unlawful, unreasonable in the Wednesbury sense, ultra vires, procedurally unfair and unjustifiable. 7) A declaration that the declarations hereinbefore sought apply to any request for information by any other person against the defendant, as a hallmark of a transparent and accountable governance and any non- compliance by the defendant with a due demand is a violation of the fundamental principles of a transparent and accountable government set out in section 6, 12 and/or 37 of the Constitution. 8) An order fixing time within which the defendant shall comply with the claimant’s demands after the failure aforesaid and the legal declarations hereinabove and directing the defendant to respond to the claimant’s demand for information on political party funding or to supply the information on political party finding available, if any, with the defendant as requested in the claimant’s letter of 20" July, 2021 as follows: il. lll. IV. Report on the state of compliance by each of the political parties with the requirement for declaration of donations, sources and amounts received within 90 days of receipt thereof under section 27 (2) of the Political Parties Act. Report on the state of compliance by each of the political parties with the requirement for a separate bank account for donations under section 28 of the Political Parties Act. Report on the state of compliance with audit requirements in section 30 of the Political Parties Act by each of the political parties and providing copies of the accounts audited by a certified public accountant in respect of all private funding received by each of the political parties. Report on the state of compliance by the Malawi government with sections 4-10 of the Political Parties Act as to the creation of an independent office of the Registrar of Political Parties. Any other information received by the office of the defendant in exercise of the functions under the Political Parties Act, which the defendant deems necessary for the noting of the Malawi Law Society for the purposes disclosed hereinabove. 9) An order providing for costs of these proceedings. 10) And that all necessary and consequential directions be given and any further or other relief as the Court deems just and appropriate in the circumstances. . The facts, based on which the claimant seeks judicial review and the reliefs in this matter are not complicated. Those facts and grounds for this application for judicial review are disclosed in the claimant’s Form 86 A on application for permission to apply for judicial review as follows. 7. It is a notorious fact that the claimant is a statutory body established under section 63 of the Legal Education and Legal Practitioners Act. Its objects include protecting matters of public interest touching, ancillary or incidental to the law according to section 64 (d) of the Legal Education and Legal Practitioners Act. It indicated that this object gives it /ocus standi or sufficient interest to apply for judicial review in the present matter. The claimant indicated further that this object is directly linked to the fundamental principles in section 12 (1) (a) of the Constitution which dictates that all legal and political authority of the State derives from the people of Malawi and shall be exercised in accordance with the Constitution solely to serve and protect their interests. The claimant further noted that in order to serve and protect such interests of the people of Malawi, section 12(1)(f) of the Constitution requires that all institutions and persons shall observe and uphold the Constitution and the rule of law and no institution or person shall stand above the law. The claimant correctly indicated that the foregoing reference to all persons and institutions includes the defendant which 1s an office created by law. 8. The claimant also observed that in terms of section 12 (1) (c) of the Constitution, the authority to exercise the powers of the State is conditional upon the sustained trust of the people of Malawi and that trust can only be maintained through open, accountable and transparent Government and informed democratic choice. 9. The claimant asserted that it was expected by the Minister of Justice and Constitutional Affairs, under whose jurisdiction the defendant serves, to play a positive role in sensitizing the public about the Political Parties Act of 2018 which is at the centre of the present case of judicial review. The claimant exhibited as MLS1, a letter it received from the defendant’s Minister regarding the Political Parties Act herein, dated 12° November 2018 which reads as follows: Dear Sir, RE: COMMENCEMENT OF THE POLITICAL PARTIES ACT, 2018 I would like to acknowledge receipt of your letter to me dated the 5" November, 2018. Humbled by your appreciation, may I request the Malawi Law Society to play a positive role in correctly sensitizing the public regarding the legal consequences of the new law. Yours Sincerely, Samuel B. Tembenu, SC 10. In exercise of its statutory objects alluded to above, the claimant by letter dated 20" July 2021 requested information on political party funding from the defendant. The letter is exhibited as MLS2 and reads as follows: Dear Sir, RE: REQUEST FOR PUBLIC INTEREST RECORDS AND INFORMATION ON POLITICAL PARTY FUNDING FOR 2019-2020 We write in terms of the Constitution [sections 37 and 12(1(a) and (f)] as read with the Legal Education and Legal Practitioners Act [section 64(d)] and the Access to Information Act [section 15] to request, which we hereby do, that your high office Honourable Registrar General, may provide the Malawi Law Society information reflecting on the state of compliance with political party funding laws for the four major political parties in the country for the period 1* January 2019 to 31 December 2020. We also seek information on the state of compliance by the Government with standards relating to the office of the Registrar of Political Parties. In aid of its constitutional and statutory mandate to enhance constitutionalism. promote transparency and accountability under the rule of law and contribute to the fight against corruption and cronyism for the sake of protecting public interest on matters touching on the law in Malawi, the Malawi Law Society has embarked on public interest legal audits herein focussing on the stare of compliance with the Political Parties Act. 2018 and the Constitution. As you are aware, in 2019 and 2020 the country underwent general elections. The four political parties copied below provided the four major contestants and/or partners to the presidential and parliamentary race. They evidently spent substantial sums of money during the campaign canvassing for votes from the electorate with a view to ultimately serve the public and to protect public interests as required in section 12 of the Constitution. 6 In order to evaluate private political party funding in the period and how it impacts on several matters of governance and the rule of law; and, in order to determine how effectively public interest is protected in the process and in subsequent dealings of the political parties, the Malawi Law Society therefore requests you Sir to provide the requested information in terms of section 36 of the Political Parties Act ("the Act"). We seek your comprehensive information on the following aspects: (i)Report on and the state of compliance by each of the political parties with the requirement for declaration of donations, sources and amounts received within 90 days of receipt thereof under section 27(2) of the Act. (11)Report on and the state of compliance by each of the political parties with requirement for separate bank account for donations under section 28 of the Act. (iii)Report on and the state of compliance with audit requirements in section 30 of the Act by each of the political parties and please provide copies of the accounts audited by a certified public accountant in respect of all private funding received by each of the political parties. (iv)Report on and the state of compliance by the Government with sections 4-10 of the Aut as to the creation of an independent office of the Registrar of Political Parties. (v)Any other information received by your office in exercise of your functions under the Act which you deem necessary for the noting of the Malawi Law Society for the purposes disclosed hereinabove. Your information under these heads must kindly cover the period 1*t January 2019 to 31“ December 2020 for each of the four political parties. In respect of item (iv), we request the current state of affairs and progress in view of the fact that your office is supposed to serve on interim basis under the Act. Guided by section 19 of the Access to Information Act, the Society looks forward to hearing from you, Honourable Registrar General, within 15 days hereof i.e. not later than 5" August 2021. And, by copy hereof, the four political parties affected by this inquiry are informed for their noting of the steps being pursued by the Malawi Law Society. Yours sincerely, Maati-Kidney Mbeko CHIEF EXECUTIVE OFFICER CC: The Secretary General Malawi Congress Party (MCP) Private Bag 388 LILONGWE 3 Attention: Hon Esseinhower Mkaka, MP The Secretary General United Transformation Movement (UTM) Party Area 10, Zomba Street LILONGWE Attention: Hon. Patricia Kaliati, MP The Secretary General Democratic Progressive Party Private Bag 340 LILONGWE 3 Attention: Hon. Jean Kalilani The Secretary General United Democratic Front P. O. Box 5946 BLANTYRE Attention: Hon. Kandi Padambo 11. The claimant indicated that it embarked on public interest legal audits herein focusing on the state of compliance with the Political Parties Act, 2018 and the Constitution. It added that such information as requested from the defendant is relevant and important in aid of the claimant's constitutional responsibility and statutory mandate to enhance constitutionalism, promote transparency and accountability under the rule of law and contribute to the fight against corruption and cronyism for the sake of protecting public interest on matters touching on the law in Malawi as there have been public suggestions that political party funding is one of the major areas in the country breeding corruption which has underdeveloped the nation. Concerning the foregoing, the claimant observed that recently even the Anti-Corruption Bureau, which is created by law to combat corruption, has also acknowledged this challenge that political funding is a fertile ground for corruption in the country resulting in the failure of the realization of the developmental goals of the country. The claimant exhibited as MLS 3 a publicly reported record on the Bureau's remarks and complete copy of the said remarks by Ms. Martha Chizuma, the then Director General of the Bureau. The relevant part of exhibit MLS3, on the commemoration of the International Anti-Corruption Day on 9" December, 2021 at Mzuzu, reads as follows: 1. I feel greatly honored to stand before you, YourHonour and all invited delegates here at Grand Palace Hotel as Malawi joins the rest of the world today in commemorating our efforts in the fight against corruption. It has been stated at different platforms your Honor that any effective fight against corruption depends largely on an independent and courageous anti- corruption agency, a judiciary with integrity and most importantly the right tone from the top leadership in this case the Presidency that clearly demonstrates determination not to tolerate such evil regardless of the status of the perpetrators. Your presence today Your Honour is a clear indication of yours and His Excellency Dr Lazarus Chakwera's personal commitment in the fight against corruption. For this receive our sincere gratitude. Your Hon the Vice President, ladies, and gentlemen, the theme that the Bureau has chosen for for this year's commemoration, ‘Integrity: Key to a Corruption-free Malawi’, was carefully thought through with consideration being had to the corruption trends in the country. The levels, intensity and sophistication of corruption in the country continues to rise and is a living threat to any meaningful development and aspirations of this country. Whilst to others this statement has been interpreted as defeatist, for us at the Bureau we believe that comforting lies about the extent of this problem of corruption has not served us well and made us lose opportunity for meaningful interventions. We believe that it is better to state the hurtful truth about this problem, face it head on and deal with it comprehensively. And the hurtful truth is that corruption has and continues to kill our fellow Malawians, Corruption has taken away our schools, health centers roads and so many other public services. Corruption has scared away investors and therefore taken away potential jobs. Indeed corruption has distorted the private sector functionality, perpetuated inequalities in Malawi and undermined the justice systems. The list is endless,but I believe the few examples I have cited paint a clear picture of how destructive this evil is. Accordingly, it does not matter that you do not commit acts of corruption as an individual corruption would still hit you badly and therefore keeping quiet about it is not an option. That is why at the Bureau through the National Anti- Corruption Strategy we will never stop imploring Malawians to join hands with us in this fight. And since laws, procedures and processes don't seem to deter people from committing more corrupt acts that is why we thought that we could emphasize on integrity / umunthu as one way of appealing to the moral conscience of Malawians to hate corruption. This is in recognition of the fact that corruption and other malpractices are mainly motivated by "lack of integrity". It is lack of integrity in almost all our governing political parties who after almost three decades of multiparty democracy have still not figured out 9 legitimate ways of funding their parties but have consistently sacrificed public services and goods meant for the people they are governing at the altar of questionable multi billion kwacha contracts to unscrupulous business people for kickbacks as a way of funding their parties to purchase party tshirts and cloths as if that is all Malawians are entitled to. 9. Itis lack of integrity in both private and public sector that is causing our public procurement to be marred with high corruption thereby heavily draining our public revenue for non existent or sub standard goods and services. It is lack of integrity in both job seekers and recruiters that is causing corruption in employment and therefore affecting efficiency of our institutions. 10. It is lack of integrity in both contractors and suppliers that is causing corruption in construction industry leaving us with so many questionable projects. It is because of lack of integrity within players in law enforcement and judicial system that is making majority of people lose confidence in the justice system. Again this list isendless. 11. That is why today on this commemoration of international anti corruption day we are imploring Malawians to have some moment of self reflection and to decide to embrace umunthu or integrity as one way of dealing with corruption. Weare imploring people of this country to choose to do right because it is right to do right. 12. Malawi is in great need of people who will not be bought or sold, at the expense of their country, people who in their inmost souls are true and honest and do not fear to call that which is wrong by its name and stand for the right thing regardless. This country needs such people to stand up so that we can deal with corruption. 12. The claimant asserted that it cannot effectively play its role alluded to herein without adequate facts and information which the defendant ought to have and freely share under the dictates of the Political Parties Act and the Constitution. Moreover, that it intended to use the feedback from the defendant to legally evaluate the situation as to the state compliance with the Political Parties Act and to provide relevant legal guidance on compliance in the public interest and in the interest of upholding the constitutionalism and the rule of law. 13. The claimant then indicated that, notwithstanding the time lines inferred from the application of the General Interpretation Act and the comparable lessons to be drawn from the Access to Information Act and given by the claimant in exhibit MLS 2, the defendant failed to respond to the demand contained in the said exhibit MLS 2. Moreover, that the failure continued to the date of the filing of the present application. This prompted the claimant to write a follow up letter to the defendant dated 30" September 2021 that is exhibited as MLS 10 4. The defendant also did not respond to that letter exhibit MLS4 which reads as follows: Dear Sir, RE: FOLLOW UP ON REQUEST FOR PUBLIC INTEREST RECORDS AND INFORMATION ON POLITICAL PARTY FUNDING FOR 2019-2020 Kindly refer to our letter dated 20 July 2021 Reference Number..... We have enclosed a copy for your ease of reference. We do not seem to have had the honour of receiving a reply. The Executive Committee of the Society has therefore directed me to advise that should we at the Secretariat not receive any such response within 14 days from the date hereof, the Society shall proceed on the basis that it is your decision to omit to supply the requested information if any. The Society will then pursue the next legal steps possible in light of that decision or omission. Yours sincerely, Maati-Kidney Mbeko CHIEF EXECUTIVE OFFICER 14. The claimant asserted that a reasonable amount of time after its request had passed for the defendant to comply with the information request and that the defendant’s failure to respond is reviewable for its legality, good faith and reasonableness under Order 19 Rule 20(1) (b) of the Courts (High Court) (Civil Procedure) Rules as read with section 108(2) of the Constitution. 15. It added that, unless this Court intervenes herein, the law providing for transparency and accountability as alluded to above will be rendered of no value. 16. The claimant indicated that it has no viable alternative remedy given that section 36 of the Political Parties Act only provides that any person shall have the right of access to information received by the Registrar of Political Parties in the exercise of his functions under the Political Parties Act. Moreover, that 11 the Political Parties Act does not provide any alternative route where the defendant is not responding to a request for information like is the case in the present matter. 17. This Court wishes to indicate that at the hearing of this matter, in December 2024, the claimant and the defendant updated this Court that the defendant communicated that the Government has since created the Office of Registrar of Political Parties. For this reason, the claimant asked this Court to bear this in mind when making the final determination of this matter. 18. The claimant added that it had since paid a fee of K20 000 for the information request thought it has reservations regarding the same as the non-payment of the fee by the claimant is being used as a justification by the defendant for his lack of a response to the claimant’s request for information. 19. On his part, in response to the present application for judicial review, the defendant filed a defence supported by his sworn statement, as required under Order 19 Rule 24 of the Courts (High Court) (Civil Procedure) Rules. He stated as follows in his defence: 1 The defendant refers to the claimant's 'Form 86 A’, to wit, its Application for Judicial Review herein and contends that the claimant does not have the requisite /ocus standi to maintain this proceeding. The defendant prays that the Court should dismiss the proceeding on the foregoing basis with costs. 2 Without prejudice to the foregoing, the defendant refers to paragraphs 1-13 of the claimant's reliefs sought and denies that the claimant is entitled to the same and puts the claimant to strict proof thereof. 3 The defendant contends that the claimant's request for information was incompetent in that it did not comply with the law obtaining in requesting for information to the defendant. The defendant was therefore not bound to act on an incompetent request. 4 The defendant contends that the claimant did not pay the requisite fees for its request as per the second schedule of the Political Parties Act (the 'Act'), making the request incompetent as aforesaid. 5 The defendant repeats the foregoing and at trial, it will contend that the Court should regard the said incompetent 12 request as if there was no request at all and dismiss this proceeding with costs. 6 The defendant contends that the requirement of paying fees under the second schedule of the Act is provided for under the subsidiary legislation of the Act. This proceeding is about the claimant's request for information and not the constitutionality or lack thereof, of the said subsidiary legislation. 7 The defendant repeats the immediate foregoing and contends that the Court does not have jurisdiction to adjudicate on the constitutionality or lack thereof, of the subsidiary legislation as the same was not pleaded and does not arise as an issue in the claimant's application. 8 Without further prejudice to the generality of the foregoing statements of defence, the defendant contends that the provision of information in the period between 1* January, 2019 to 31** December, 2020 would not be provided for in the absence of the enabling subsidiary legislation which legislation was gazetted on 22"! December 2020 and the same would not be applied retrospectively. 9 Save as herein before expressly admitted, the defendant denies each and every allegation of fact contained in the claimant's application for judicial review as if each were set forth and specially traversed seriatim. 10 The defendant will seek an order that this claim should be dismissed in its entirety with costs. 20. In the sworn statement in support of his defence, the defendant stated as follows: I, CHIKUMBUTSO NAMELO, Department of Registrar General, P. O. Box 100, Blantyre in the Republic of Malawi, on 26" day of February, 2024, DO MAKE oath and STATE as follows: 1. lam of full age. 2. I am the Registrar General and defendant in this proceeding and therefore I have due authority to swear this sworn statement as I hereby do. 13 3. 4. I make this sworn statement in opposition to application for judicial review. The matters set out below emanate from information acquired through my conduct of this matter, except where I indicate to the contrary and I verily believe the same to be true to the best of my knowledge, information and belief. . For matters of fact that are not within my personal knowledge, I duly disclose the source thereof and provide grounds for my belief thereof. (a) Whether or not the claimant's request for information from the defendant was incompetent 6. On 20th July, 2021 and 30th September, 2021 the claimant wrote the defendant requesting for information on political funding for four major political parties in the country for the period Ist January, 2019 to 31st December, 2020. . It is true that the Political Parties Act ("The Act") affords the right of access to information relating to political parties. However, the Second Schedule to the Act obliges any person seeking information to pay fees amounting to K20,000.00 for any request for such information or document of a registered political party. . The claimant herein in clear contravention of the said Second Schedule did not pay any fees for their request for information. The request was thus incompetent and the defendant was under no obligation to process an incompetent request. Processing such an incompetent request is an audit query as it would be presumed that money had been paid to Government when in actual fact that was not the case. 10. The request being incompetent as described above, it cannot be a subject of judicial review proceeding. (b) Whether or not the claimant is guilty of non-disclosure of the material facts 11. The claimant in its court process used in obtaining permission for judicial review did not disclose the fact that it did not comply with the Second Schedule to the Act in its request for information, a fact that rendered its request incompetent at law. 14 12.1 believe that if the claimant had disclosed this material fact, this honourable court could not have granted permission to apply for judicial review. 13.1 further believe that a party approaching court must do so with the highest good faith including an obligation to disclose all material information. (c) Even if the request herein was competent, which is denied, whether or not request for information in the period between I5t January, 2019 to 31st December, 2020 was for all intents and purposes, practical in absence of the enabling subsidiary legislation. 14. J should state at the outset that I had been in constant discussions with the leadership of the claimant particularly Counsel Mpaka who is the Chairperson for the claimant over this matter and I was updating Counsel Mpaka on the predicament that the defendant was in as I explain herein below. 15. Indeed, the Act was gazetted in December 2018. However, at the time the Act was being gazetted, there was no enabling regulations especially in respect to declaration of information by political parties. Simply put, there was no framework for political parties to declare information which framework is usually contained in the regulations to the principal Act. 16. The regulations containing the forms for declarations of political party donations were only gazetted on 22" December, 2020 after the elections had already been held and political parties would therefore not be expected to use the forms to provide information retrospectively. This honourable court is invited to take judicial notice of the said regulations. 17. Following the gazetting of the said regulations, my office issued a public notice in newspapers for the political parties to comply with the Act by 30th June, 2021 and I accordingly briefed Counsel Mpaka on the developments at our office in respect of the issue herein. I exhibit hereto a copy of the said notice marked "CNI". 18.1 believe that in view of the above explanations, the omissions which are the subject matter of this proceeding are not unreasonable and therefore cannot support the present judicial review proceedings. 19. In view of the foregoing premises, it is in the interest of Justice that the application for judicial review ought to be dismissed with costs. 15 20.1 understand that this sworn statement shall be used in court proceedings and that I make this sworn statement consciously acknowledging that if I have made a false statement I may commit perjury and be liable to substantial penalty. 21. The claimant and the defendant then made arguments in support and in opposition to the application, respectively regarding the issue for determination in this matter namely, whether the defendant acted lawfully in the circumstances by failing or omitting to supply the information requested by the claimant regarding political party funding and related matters under the Political Parties Act. 22. The claimant submitted as follows. It pointed out that, in terms of the law, under Order 19 Rule 20 (1) (b) of the Courts (High Court) (Civil Procedure) Rules the power of the Court to conduct judicial review includes review of a decision, action or failure to act in relation to the exercise of a public function in order to determine (1) its lawfulness; (11) its procedural fairness; (111) its justification of the reasons provided, if any; or (iv) bad faith, if any, where a right, freedom, interests or legitimate expectation of the claimant 1s affected or threatened. 23. It asserted that in the present case, section 37 of the Constitution 1s relevant and provides that every person shall have the right of access to all information held by the State or any of its organs at any level of Government in so far as such information 1s required for the exercise of his or her rights. It noted that the said section 37 confers an unconditional constitutional right of access to all information in the hands of the State or any of its organs at any level of Government. The claimant noted that earlier editions of this constitutional provision subjected the nght to an Act of Parliament. 24. The claimant then submitted that, following from that constitutional position, section 36 of the Political Parties Act is also relevant and expressly and unconditionally too provides that any person shall have the right to access information received by the Registrar in the exercise of his functions under this Act. 25. The claimant then asserted that the General Interpretation Act is also relevant in that in section 21(b) of that Act it provides that any subsidiary legislation which is inconsistent with any Act of Parliament is invalid to the extent of 16 such inconsistency. Moreover, that section 2 of the General Interpretation Act defines an Act to mean "an Act of Parliament, an ordinance or any Applied Act". The claimant asserted that this raises the question whether a condition set in subsidiary legislation under the Political Parties Act can stand as an effective and valid barrier for accessing information under the Political Parties Act, let alone under the Constitution. The claimant called upon this Court to note that historically the Constitution has actually removed any such conditions for accessing information. 26. The claimant contended that, as a standard, the Access to Information Act anticipates in section 19 that a public officer can ably respond to a request for information within 15 days. It noted that it made the request herein on 20th July 2021 and followed it up on 30th September, 2021. Further, that to date, the defendant has not responded and the default is continuing. 27. The claimant reiterated that exhibit MLS 1 shows that the Malawi Government anticipates the claimant to take an active role in sensitizing the public regarding the legal consequences of the Political Parties Act, 2018. And that exhibit MLS 3 shows that Political Party funding is an issue that the State Agent responsible for fighting corruption says is the bedrock of corruption and a catalyst for denying the people of Malawi constitutionally guaranteed such as the right to development set out in section 30 of the Constitution. Further, that exhibit MLS 2 is an express request for information by the claimant and shows the claimants belief that such information could assist in evaluating several matters of governance and rule of law. Moreover, that the issues are limited not to political party funding. In addition, that the issues reach the question of compliance with the Political Parties Act and the Constitution. It added that the issues extend to compliance with the dictates of Legal Education and Legal Practitioners Act. 28. The claimant submitted that in the circumstances, in aid of its statutory authority and rights under section 64(d) of the Legal Education and Legal Practitioners Act, it 1s entitled to access the information under section 36 of the Political Parties Act or to at least a response in order to ably guide the public on legal issues affecting the public arising from lack of information on political party funding and levels of compliance with the Political Parties Act. It also submitted that it is entitled to access that information or some kind of official response from the defendant within reasonable time after making the 17 request and such time has since passed but the defendants default is continuing. 29. The claimant also argued that the information it sought in its request for information is vital for not only its exercise of its statutory responsibility to the public but also relates to the functionality and compliance of the office of the defendant with dictates of sections 27, 28 and 30 of the Political Parties Act. it indicated that in particular in exhibit MLS 2 it expects that: a. The defendant is supposed to keep records of private and public funding of all political parties; b. The defendant is mandated to ensure that all political parties have separate bank accounts for private and public funding and the same are properly accounted for; c. The defendant is mandated to ensure that political parties are not being funded by statutory corporations and public offices; d. The defendant is mandated to ensure that all political parties are audited; e. The defendant is supposed to know the state of compliance by the Government with sections 4-10 of the PPA. 30. On the other hand, the claimant argued that it is its case that by virtue of the Constitution, the Legal Education and Legal Practitioner Act, the Access to Information Act and the Political Parties Act, the claimant and the public which it serves by virtue of section 64(d) of the Legal Education Legal Practitioners Act is entitled to some form of feedback from a public officer in the defendant's position. 31. The claimant insisted that it 1s the legality and the reasonableness or the good faith of the defendant in his continuing failure in relation to exercise of public functions under the Political Parties Act 2018 to respond or supply to the claimant within 15 days or within reasonable time thereafter information on political party funding as requested in the claimant's letters of 20th July 2021, and 30th September 2021 that the claimant will be asking this Court to give guidance on at the full judicial review. 32. The claimant contended that the idea is that when the Malawi Law Society makes a request for information from a public body such as the defendant, such request cannot be in vain or ignored offhand because Parliament would not have created the claimant with authority to protect matters of public interest touching on or ancillary to the law when the claimant cannot readily 18 access public information even when provisions such as section 36 of the Political Parties Act guarantee that access to any person unconditionally. 33. The claimant submitted that, as the default in response 1s continuing, this is a suitable case in which this Court should make the declarations and orders sought in the judicial review application. 34. In response, the defendant submitted as follows. He asserted that he opposes the claimant's application for judicial review on the following grounds, namely, that the claimant's request for information which is the subject matter of these proceedings was incompetent and therefore null and void; that the claimant is guilty of non-disclosure of the material facts; and that the claimant’s request was made regarding a period when the Political Parties Act was not yet operational. It submitted that the main issue to be determined by this honourable court is whether or not in view of the aforesaid grounds, the claimant's application for judicial review herein ought to be dismissed. 35. The defendant submitted on the first ground of opposition namely, whether or not, the proceeding herein is null and void of being grounded on an incompetent request for information from the defendant? The defendant noted that section 36 of the Political Parties Act is instructive and reiterated that it provides that any person shall have the right of access to information received by the Registrar in the exercise of his actions under this Act. He however asserted that while section 36 of the Political Parties Act gives the right of access to information relating to political parties, the second schedule to the said Act requires payment of fee amounting to K20, 000.00 for any request of information or document of a registered political party to be processed. He asserted that he established in the sworn statement in opposition to the application for judicial review that the claimant only submitted a request to information. He noted that, however, the requirement of the law of the second schedule to the Political Parties Act is clear, that any person who is seeking access to such information 1s under law obliged to pay fees, in this case to pay K20, 000.00. 36. The defendant insisted that the claimant, as a body of lawyers knew or ought to know that they were supposed to pay fees in the sum of K20,000.00 for their request, which they did not. He likened this scenario to filing a court document without paying the filing fees, which entails that as a matter of procedure the document cannot be processed. He added that failure to adhere to this requirement to pay fees is incurably fatal. He therefore submitted that the request herein never was. That it was not a processed request. And that it is incompetent at law. In addition, that, similarly, he was not under any obligation to process an incompetent request. He indicated that it would 19 certainly result in an audit query. He added that, essentially the claimant is inviting this Court to sanction an illegality. 37. The defendant submitted that, in the circumstances, such a request cannot form the basis of the present proceeding. And, that the present application be dismissed with costs to the defendant. 38. The defendant then submitted on whether or not the claimant herein is guilty of non-disclosure of the material facts. He observed that from the principles laid down in R v Jockey Club Licensing Committee, ex parte Wright [1991] COD 306 at the stage of obtaining permission to apply for judicial review, the claimant must bring out all matters of law material to granting leave. He noted that it is trite that the party coming to court must make a full and frank disclosure of all material facts. See S v Inspector General of Police and Another, Ex Parte: Makwangwala and Another (Miscellaneous Civil Cause No.98 of 2007) [2008] MWHC (24 February, 2008) per Chimasula Phin, J); FJ Investment Limited v First Merchant Bank Commercial Case No. 55 of 2010, per Justice Mtambo. And that in the case of Mchungula Amani v Stanbic Bank Limited and Another, HC (PR) Civil Cause No. 558 of 2007 at page 4 Potani J, as he then was had this to say: It becomes imperative to bear in mind that material facts are facts which if known to the court would have lead the court to arrive at a conclusion or order different from the one it arrived at. Therefore, for the conclusion to be reached that the claimant suppressed or misrepresented facts, the alleged suppressed facts must be facts which if it were laid before the court the ex parte injunction would not have been granted. 39. He indicated that it is trite that material facts extend to those facts that a claimant would have known had he made enquiries. And that this was enunciated in Zhe State v Council for the University of Malawi, Ex Parte Innocent Longwe and Wilfred Mkochi Judicial Reveiew Cause No. 138 of 2009 [2010] MHWC 1. 40. The defendant observed that in Ndomondo y The State and Speaker of the National Assembly Misc. Cause No. 57 of 2007, H. C. Lilongwe District Registry, unreported, Mzikamanda J, (as he then was) discharged leave to move for judicial review and attendant order on the basis that the claimant did not disclose to the court that he had a previous conviction. He added that stated differently, the grant of permission to apply for judicial review may be set aside on the grounds of material non-disclosure on the part of the claimant. See The State (On the application of Abdul Nahimana (on his own behalf and 20 on behalf of refugees and asvlum seekers in Malawi and another y Minister of Homeland Security in Malawi, Judicial Review Cause No. 18 of 2021, as per Mambulasa J on page 16. And, that this is so because in without notice applications, claimants are under legal duty to make full and frank disclosure of all facts known to them that might have a bearing on the case so as to enable the Court to make a proper assessment. See R v Kensington Income Tax Commissioners, ex parte Princess Edmond de Poliganic [1971] 1 KB 486. The defendant also noted that, in worst case scenarios, material non-disclosure by Claimants that are so grave, render the order of the court void ab initio. See The State v The Minister of Finance and The Registrar of Financial Institutions Ex Parte: Dafter Namandwa Judicial Review Cause No. 17 of 2013 (High Court of Malaw1) (Principal Registry) (unreported). 41. The defendant contended that when the claimant was making its application for permission to apply for judicial review, it owed this Court a duty to disclose all material facts, that is to say, information to enable the Court to make an informed determination. Moreover, that this duty is very imperative especially in an application without notice. He pointed out that however, it has been shown that the claimant did not disclose the fact that it did not pay the prescribed fees for the request which is the subject matter of the present proceedings. He therefore submitted that this 1s a very material fact that should have been disclosed because it is a legal requirement for any person seeking such information to pay prescribed fees. He expressed a firm belief that if this material information was made available to this Court, permission for judicial review would not have been granted. He submitted that this non-disclosure of material facts is so grave and renders the order for permission to apply for judicial review void ab initio as such this Court is enjoined to dismiss the present application with costs to the defendant. 42. The defendant then submitted on whether, without prejudice to the foregoing, even if the request herein was competent, which is denied, whether or not, provision of the information in the period between Ist January, 2019 to 31st December, 2020 was for all intents and purposes, practical in the absence of the enabling subsidiary legislation. 43. He noted that section 36 of the Act places an obligation on the Registrar of Political Parties to provide requested information relating to political parties, which he would have received in the exercise of his functions under the Act, subject to the Second schedule. He argued that he has been established in the sworn statement in opposition to the present application that the enabling regulations for the Political Parties Act were gazetted on 22"! December, 2020 and that subsequent to that, the Registrar of political parties issued a notice in 21 the daily papers on 7th January, 2021 requiring political parties to comply with the Act by 30th June, 2021 or risk deregistration. 44 He contended that the claimant, as a body of lawyers, knew or ought to have known that because the enabling regulations were only published on 22" December, 2020, there was no framework for political parties to comply with the requirement to declare their sources of financing or donations for the period specified by the claimant. In addition, that the request for information by the claimant was therefore neither reasonable nor made in good faith as the claimant was aware or ought to have been aware that it was not practical for the defendant to give access to information that was nonexistent. In the circumstances, the defendant submitted that such a request cannot form the basis of the present proceedings. He prayed that the claimant's application for judicial review be dismissed with costs. 45. The claimant submitted as follows in reply. It asserted that in light of its case, it is humbly prayed that the Court disallows the defendant's defence because of the following reasons: firstly, with greatest respect, it seems that the defendant has not appreciated the constitutional and statutory scope and kind of case that is before the Court and on which the Court granted permission to move for judicial review. The case straddles between the Constitution, the Legal Education and Legal Practitioners Act, the Access to Information Act and the Political Parties Act. The case before the Court raises the more fundamental constitutional and statutory question to say when the Malawi Law Society, in its judgement, makes a public interest inquiry on a public official contemplating a reply, is it lawful for the public official to choose to keep quiet? In other words, with or without the information sought did the defendant owe the claimant a duty to respond to the letters of 20th July 2021 and 7th September 2021? 46. Secondly, that even if the case now before the Court were to be confined to the interpretation and application of the Political Parties Act, the claimant's demand in exhibit MLS 2 and MLS 4 and the declarations sought in the judicial review is not limited to information to which Schedule 2 would apply. A47. Thirdly, that even if the case before this Court were confined to the interpretation and application of the Political Parties Act, the validity of Schedule 2 on which the defendant bases its application 1s actually in question in this judicial review for setting conditions for access to information. It asserted that the case before this Court as expressly contended at paragraphs 10 and 11 on p.36 of the application for permission to move for judicial review is that section 36 of the Political Parties Act grants an unconditional right of access to information in the defendant's custody because of the constitutional foundations outlined in paragraph 11 on that page. As was pointed out in 22 ACLU v Clapper, parliament "does not alter details of a regulatory scheme in vague terms or ancillary provisions... it does not hide elephants in mouseholes". 48. Fifthly, considering the role and responsibility of the Malawi Law Society under section 64(d) of the Legal Education and Legal Practitioners Act as read with section 12 of the Constitution, should the Malawi Law Society's access to information in the hands of the State or any of its organs at any level of Government be subjected to conditions such as are suggested by the Respondent? We say no. On the face of it, protection of public interests under the law militates against that position. To the contrary, constitutional notions of transparent and accountable governance under the rule of law point to the Law Society's right of unconditional access to public information. 49 Sixthly, that in regard to the contention that absence of regulations made it impossible for political parties to comply with the Political Parties Act, 2018, the defendant does not address the following aspects deriving from the body of the statute: a. No legal obligation in the Act is tied by any provision in the Act to the availability of the regulations to be made under section 44 of the Act. The regulations under s.44(1) are made to "better carry into effect the Act not to extend it beyond it reach or to commence the operations of the Act. Commencement of statutes 1s guided by section 9 General Interpretation Act. b. Sections 46 and 48 of the Act expressly require all existing political parties at the commencement of Act to comply with the Act not later than one year from the commencement of that Act. And section 48(2) mandates the defendant to deregister any political party that fails to comply with the Act within the stipulated period from the commencement of the Act. c. In the premises, by the time of the Society's demand in exhibit MLS 2(20th July 2021) and reminder in exhibit MLS 4 (30th September 2021) which is more than | year (1.e almost 3 years after exhibit MLS 1 suggested that the Act had commenced), surely the defendant should have had something to say in response to the Malawi Law Society. 50. This Court shall deal with the last objection of the defendant to the claimant’s application herein, namely, that the claimant’s request for information related to a period when the Political Parties Act was not yet operational, since 23 relevant regulations had not yet been put in place by the responsible Minister for the better carrying out of the Act. 51. This Court’s view, having considered the facts and the arguments of the parties herein, is that it is clear that the matter over which the claimant sought information from the defendant is of fundamental importance, as submitted by the claimant. It is a matter to do with political party funding for which it was thought prudent by Parliament that there be reporting to the defendant by political parties. This is as provided in the relevant provisions of the Political Parties Act. These provisions on political party funding reporting clearly aim at ensuring transparency and accountability, good governance and the rule of law which are aspects that our Constitution aims to achieve as submitted by the claimant. 52. The defendant does not dispute the significance of the subject of the claimant’s request. The issue of political party funding was actually legislated on in order to deal with some of the mischiefs, such as kickbacks, that the claimant has correctly alluded to within our constitutional democracy as highlighted by the Anti-Corruption Bureau, which specializes in the fight against corruption. There can therefore be no doubt that the request by the claimant herein pertained to some very weighty matters in our country’s constitutional democracy. The claimant needs the information from the defendant so that it can discharge its statutory objects and functions as provided in section 64 (d) of the Legal Education and Legal Practitioners Act. In the foregoing premises, this Court finds without much difficulty that the claimant has locus standi or sufficient interest to make the present judicial review application in the face of non-responsiveness from the defendant herein. This finding 1s made for the avoidance of doubt given that one of the defences raised by the defendant was that the claimant lacks /ocus standi or sufficient interest to raise the matters herein. The Malawi Law Society has had standing due to make applications like the present one, due its statutory object alluded to herein. See for example Zhe State v The President of Malawi and others, ex parte Malawi Law Society and others [2002-2003] MLR 409 HC. It appears however that the said defence has been abandoned and was never taken up at the hearing by the defendant. 53. From the evidence, it is quite clear that indeed, as submitted by the defendant, for the period in relation to which the claimant sought the information herein, 24 in so far as it relates to political party funding, the defendant did not have in place the regulations for receiving the requested information herein. Logically, the political parties could not report the relevant information to the defendant since no regulations had been put in place by then to facilitate the reporting. It is logical, therefore, that the defendant did not have the information that the claimant sought herein. It is however regrettable that for an Act passed in 2018, there was no regulatory framework to guide the submission of the relevant information on political party funding as required by statute during the period in question in this matter. The then Minister of Justice failed to ensure that such regulations were in place ahead of the last general elections. The regulations were only put in place in December, 2020. 54. The question then is, does the absence of reporting by political parties during the period in respect of which the claimant sought information from the defendant justify the non-responsiveness of the defendant herein. The starting point being that the subject matter of the claimant’s request was on weighty matters, this Court is of the firm view that the claimant is right that it was entitled to some response from the defendant, particularly, explaining what the defendant just explained to this Court, namely, that there was no regulatory framework for receiving political party reports. Such information, formally provided by the defendant as a duty bearer under the Political Parties Act, would have given the claimant material to work with as it discharged its object under section 64 (d) the Legal Education and Legal Practitioners Act. It 1s not justifiable at public law for the defendant to remain non-responsive to the claimant’s request for information and then when queried through judicial review, a public law remedy, to then state that he had no information to provide the claimant. That response that the defendant had no information to provide and the reasons behind the said response ought to have been formally given to the claimant to show the status quo to the claimant on its request. 55. In the foregoing circumstances, the claimant’s contention is persuasive that it was entitled to be given some response in view of the provisions on access to information under the Political Parties Act, the Access to information Act and the Constitution as alluded to by the claimant herein. It cannot lie in the defendant’s mouth in the circumstances that he was justified at public law to be non-responsive herein because there was no information to be provided 25 given the lack of a regulatory regime for reporting by political parties during the period in issue. 56. The defendant can also not justify his non-responsiveness by saying that the claimant ought to have known that there was no regulatory regime for the period in question. The custodian of the nonexistent regulatory regime was the defendant and he was therefore duty bound to disclose that status quo and its effects on the claimant’s request to the claimant. The defendant’s last objection to the claimant’s application for judicial review therefore fails. 57. This brings this Court to the first objection by the defendant to the present application for judicial review, namely, that the claimant’s request was incompetent and deserved no response from the defendant because the relevant fee of K20 000 for the information request had not been paid by the claimant contrary to the Second Schedule to the Political Parties Act. 58. It is worth noting that there are atleast two aspects that show lack of good faith in this foregoing position as advanced by the defendant. Firstly, while the request for information regarding political parties requires payment of a fee of K20 000 per the relevant regulations under the Political Parties Act, it is clear that as noted by the claimant, the defendant used the non-payment of the fees as a blanket cover for not responding at all to the claimant’s inquiry even on aspects that have nothing to do with a document or information pertaining to political parties. This is unjustifiable at public law. The claimant had additionally requested information regarding the establishment of the office of Registrar of Political Parties in terms of section 4 to 10 of the Political Parties Act. It has not been shown by the defendant that a request for such information required payment of the K20 000 fees under the Second Schedule to the Political Parties Act. In fact, the Second Schedule does not provide for payment of a fee in regard to a request for such type of information. Payment of K20 000 is required on a request for any information or document of a registered political party. Yet, the defendant still remained non-responsive to a request for information for which no fee is prescribed under the Second Schedule to the Political Parties Act. Secondly, the claimant eventually paid the K20 000 fee required by the defendant in line with the Second Schedule but the defendant remained non-responsive to the request for information regarding political party funding reporting for the period in question herein. 26 59. The defendant would have shown good faith and sincerity by formally responding to the claimant’s herein since the fee was paid. That would have closed the matter. Instead, the defendant came to give his explanation to this Court stating there was no information to be provided by his office due to lack of reporting regulations during the period in issue. As already explained earlier, this is a response that the defendant should have given to the claimant after the claimant paid the requisite fee of K20 000. The foregoing shows that, logically, the nonpayment of the fee is not the real reason why the defendant remained nonresponsive to the claimant’s request for information regarding political party funding herein. There must be other reasons known to the defendant. Again, it is only much later when the present proceedings were in progress that the defendant then provided information to the defendant on the establishment of the office of the Registrar of Political Parties. 60. It is also worth noting that instead of responding to the claimant in writing, the defendant chose to have meetings to update the claimant’s President about the inquiry of the claimant. This is an irregular mode of providing access to information by the defendant as a public officer who had received a written request for information. The defendant, and other public servants and authorities must understand that they are required at public law to provide information in writing when a request is made in writing for such information. They discharge public duties for which they must provide written records especially given that they may always be potentially queried by citizens on discharge of their public functions. Section 43 (b) of the Constitution is very instructive on this vital requirement to provide reasons in writing on administrative action affecting a person’s rights, legitimate expectation or interests. Providing oral responses or updates in response to written requests for information, as was done by the defendant, entails that as a public officer, the defendant avoided transparency and accountability since he did not responded in writing. The oral updates are a recipe for opaque dealing as there is no official record. This flies in the face of the provisions of transparency and accountability in our Constitution as alluded to by the claimant and is irregular under public law, which calls for reasons in writing. See section 43 (b) of the Constitution. 61. In the final analysis, for the foregoing reasons, this Court is not persuaded that the defendant was justified under public law to remain non-responsive 27 because the claimant’s request for information was not accompanied with the requisite fee and that it was therefore incompetent and deserved no response from the defendant. Further, this Court is consequently not persuaded that the claimant’s request did not merit this judicial review. The defendant having not shown sufficiently that his non-responsiveness was on account of non- payment of the requisite fee. 62. The expectation of this Court is that the defendant ought to be guided accordingly that upon noting nonpayment of the requisite fee, in so far as the request for information herein pertained to a political party or a document of a political party, he should have brought that aspect of nonpayment to the claimant’s attention for the action of the claimant. It was irregular for the defendant, a public officer, in such circumstances to simply remain nonresponsive. Some appropriate response was warranted. In that connection, this Court remains unpersuaded by the defendant’s attempt to make an incorrect analogy between how he proceeded in the present case to how courts deal with documents that have been filed without filing fees. To the contrary, the practice of the courts, as far as this Court knows it, is not to completely disregard litigants’ documents on the basis that they are incompetent for nonpayment of filing fees. Rather, courts will always engage the litigants by among other things bringing such fact of nonpayment of filing fees to the attention of the litigant or their legal counsel so that appropriate action is taken to regularize the documents by paying the requisite filing fees. There are even cases in which Courts have actually decided to exercise judicial discretion not to strike out a case where a claimant represented by a lawyer has not paid requisite fees for a case to be heard, where the case is all but ready and concerns a serious substantive claim by the non-paying party. See The Commissioner of Police of the Metropolis v Abdulle & Others [2016] WLR 898; [2015] EWCA Civ 1260. That is the standard expected of public servants who are at the service of the taxpaying public under public law. It is therefore no justification at public law to contend, as the defendant sought to, that since it is constituted by lawyers, the claimant ought to know that fees are payable and that when fees are not paid then their request for information or documents ought to be left unattended, as was the case herein. Such an attitude is extreme and does not accord with public service. 28 63. In the foregoing circumstances, this Court finds that the first objection to the claimant’s application herein is not made out by the defendant, namely, that the request for information by the claimant to the defendant was incompetent and deserved no response and that such a request cannot form the basis of the present application for judicial review. 64. This Court however wishes to point out that it is constrained to tease out and interrogate the issue raised by the claimant regarding the legality of the requirement to pay a fee on request for information herein as provided in the Second Schedule to the Political Parties Act. Interrogating such an issue requires that this Court considers the legality of subsidiary legislation. Without any doubt, this Court would be ready to consider such an issue on any day except that procedurally the Attorney General ought to be named as a defendant in a judicial review application if this Court were to regularly deal with such legality of subsidiary legislation and make a declaration in that regard. See Order 19 Rule 23 (2) (a) of the Courts (High Court) (Civil Procedure) Rules. The defendant correctly observed that the claimant never raised the issue of the legality of the Second Schedule to the Political Parties Act in its application herein. The Attorney General has consequently not been named as a defendant in that regard as required by the Rules. 65. This Court then considers the second objection by the defendant herein, namely, that the claimant failed to disclose the material fact that it had not paid the K20 000 fee regarding the information it requested from the defendant herein and that such nondisclosure is fatal to the claimant’s case. In view of this Court’s immediately foregoing analysis regarding the issue of the competence of the claimant’s request for information herein on account of nonpayment of the requisite fee, this Court is persuaded that it would not have declined to grant the permission to apply for judicial review herein had the claimant disclosed that it had not paid the K20 000 fee herein. The point being that the nonpayment of the fee in the circumstances of this matter is not a lawful justification for the defendant’s non-responsiveness under public law. This Court would still have granted permission to apply for judicial review since the entirety of the claimant’s request for information did not call for the payment of the K20 000 under the Second Schedule to the Political Parties Act. On the basis of the authorities correctly cited by the defendant on the effect of nondisclosure of material facts, this Court is not persuaded that the 29 claimant’s failure to disclose the fact that it had not paid the K20 000 fee would have made this Court decline to grant the permission to apply for judicial review. The defendant’s last objection to the present application is therefore found not to be well taken by the defendant and fails. This entails that the entirety of the defendant’s defence has failed on the present application. 66. In the final analysis, the claimant’s application for judicial review succeeds and this Court finds that the defendant’s conduct in omitting to provide information or a response to the claimant’s request for information herein within 15 days or within a reasonable time was unconstitutional, unlawful, unreasonable in the Wednesbury sense, ultra vires, procedurally unfair and unjustifiable. Consequently, this Court grants the claimant all the declarations sought as outlined in paragraph 5 of this decision except the one on fixing time within which the defendant ought to do certain things as sought by the claimant. This is because the defendant has now ably explained in these proceedings why he could not provide the requested information for the period in question herein and has updated the claimant on the establishment of the office of the Registrar of Political Parties. 67. Costs are in the discretion of this Court. Given the successfully impugned conduct of the defendant, the claimant is awarded costs of these proceedings which shall be assessed by the Registrar if not agreed by the parties within 14 days. Made in open court at Blantyre this 12 March 2025. M. A. Tembo JUDGE 30