Case Summary and Outcome

The High Court of Malawi set aside an oral directive issued by the President on the basis that it did not constitute “law” and so did not pass the requirement that a limitation to a constitutionally protected right must be “prescribed by law.” The President of Malawi issued a directive during a political rally that all demonstrations against a proposed constitutional amendment were prohibited.  The Court reasoned that because no further action was taken following the oral issuance of the directive,  the President issued the directive in his capacity as a politician and not as Head of State or Government so that his oral declaration at a rally without any further action being taken on it could not amount to “law”.

Facts

On May 28, 2002 the President of Malawi conducted a rally and issued an oral directive banning all forms of demonstrations against a proposed constitutional amendment which would remove the provision limiting the terms of office of the President and Vice-Presidents to two (section 83(3) of the Malawi Constitution). The Law Society and other concerned civil society groups applied to the court for relief, seeking an order that the directive was unconstitutional and that law enforcement officials be prohibited from carrying it out (paras. 1-2).

Decision Overview

Twea J delivered the judgment of the High Court.

The main issue before Court was whether the President’s directive unjustifiably limited fundamental human rights protected by the Constitution, including the rights to freedom of expression, association, assembly and demonstration.

The Law Society argued that the President’s directive had the “effect of fettering the constitutional rights to freedom of association, assembly and demonstration, expression, conscience and opinion, and the rights to political rights as enshrined in sections 32, 33, 34, 35, 38 and 40 of the Constitution” and were unreasonable and unconstitutional (para. 4).  It said that as the directive had been made at a rally it could not constitute a law as required by the Constitution’s general limitation clause in section 44, and it could not be a permissible limitation. Section 44(2) states that “no restrictions or limitations may be placed on the exercise of any rights and freedoms provided for in this Constitution other than prescribed by law, which are reasonable, recognised by international human rights standards and necessary in an open and democratic society” (para. 11).

One of the first issues addressed by the Court was how “demonstration” should be interpreted. The Law Society and the President had accepted the definition set out in the British case of Airports Authority v. Ashton (1983) All ER which had defined demonstration as “a public manifestation of feeling: often taking the form of a procession and mass meetings”. Twea preferred the definition provided in Black’s Law Dictionary, which was wider than the one given in the Ashton case and defined demonstration as “a show or display of attitudes towards a person, cause or issue”. Twea held that “the element of procession or mass rally is not a necessary ingredient at all”  in a demonstration and that the definition in Black’s is “wide enough to cover any manifestation of attitudes or feeling towards a person, cause or issue” (para. 7).

Twea used the Black’s definition to conclude that the President’s directive was too wide to be enforceable and that “[i]f enforced at all, it would completely take away the rights enshrined in sections 32, 33, 34, 35, 38 and 40 [namely, the rights to freedom of association, assembly, expression, conscience and opinion and political rights] (para. 8).

Twea assessed the constitutionality of the directive, and whether the directive met the requirements as set out in section 44(2) of the Constitution. He undertook a detailed analysis of what constitutes “prescribed by law” in terms of section 44, and whether the President’s oral declaration at a rally could fall within that requirement. He referred to the constitutional provisions governing the function of the President and concluded that under the Constitution the President serves as both the Head of State and Head of Government. He added that the President is also the leader of his political party, and then concluded that as nothing further was done after the issuance of the directive the President issued the directive in his capacity as a politician and not as Head of State or Government (paras. 18-20).

Twea concluded that “the directive of the President at a political rally to limit such rights does not amount to law”. He added that “the banning all form of demonstrations’ was unreasonable as such a ban is too wide and not capable of enforcement”.

Accordingly, Twea, granting the relief sought by the Law Society, declared the directive unconstitutional, quashed it and prohibited law enforcement officials from carrying it out. (paras. 1 and 32).