IN THE HIGH COURT OF MALAWI

PRINCIPAL REGISTRY

CIVIL DIVISION

JUDICAL REVIEW CASE NUMBER 6 OF 2023

BETWEEN:
THE STATE On the application of:

THE MALAWI LAW SOCIETY CLAIMANT

AND

PROSECUTOR LEVISON MANGANI, SACP 1st DEFENDANT

THE CHIEF RESIDENT MAGISTRATE (LILONGWE) 2nd DEFENDANT

THE SECRETARY TO THE PRESIDENT AND CABINET 3rd DEFENDANT

CORAM: JUSTICE M.A. TEMBO,

P. Mpaka, Counsel for the Claimant

C. Gondwe and J. Kadzipatike, Counsel for the Defendants
Makhambera, Court Clerk

ORDER

1. This is the order of this Court on the defendant’s urgent application seeking
an order of this Court to stay the permission that this Court granted a couple
of days ago to the claimant to apply for a judicial review of the decisions of
the 1st defendant, 2nd defendant and 3rd defendant, respectively, pertaining to
the Director of the Anti-Corruption Bureau, Ms. Martha Chizuma. The
impugned decisions are, namely, the decision of the 1 st defendant on 25th
January, 2023 to charge the Director of the Anti-Corruption Bureau before the

1
 2nd defendant of criminal charges of making use of speech related to a certain
now publicly well-known audio recording made in January, 2022 and the
decision of the 3rd defendant on 31st January, 2023 to interdict the Director of
the Anti-Corruption Bureau from exercising her functions and duties in view
of the said criminal charges. The application is made pending the defendants’
intended application to set aside the permission that this Court earlier granted
to the claimant.
2. The defendants made the application without notice to the claimant. The
application is therefore by its very nature, unopposed. However, this Court is
duty bound to scrutinize the merits of this application in the usual manner.
3. It is often the case that a defendant who seeks to apply to discharge or to set
aside permission to apply for judicial review usually makes that application
without first seeking to stay the permission without notice to the claimant.
This is what normally happens because permission to apply for judicial review
is only granted upon the Court satisfying itself that the claimant’s case raises
issues worthy of investigation at a full hearing of judicial review. The path
taken by the defendants in making the instant application to stay the
permission pending their intended application to apply to discharge the
permission earlier granted is therefore very highly unusual. The Court can
hardly think of a precedent.
4. In terms of legal representation of the defendant public officers, the Attorney
General is not appearing in person. He appointed the private practice lawyers
appearing, to act for the defendants.
5. The facts on this application are straightforward. A couple of days ago, this
Court considered the claimant’s application seeking permission to apply for
the judicial review of the impugned decisions of the defendants herein. The
essential premise for seeking the permission is that the claimant is a statutory
body that usually appears before the Courts, pursuant to its statutory mandate
under the Legal Education and Legal Practitioners Act (Cap 3:04 of the Laws
of Malawi), to engage in court proceedings on legal matters of public interest
and significance. The claimant observed that since the audio recording herein
became known publicly in February last year, the President of the Republic
of Malawi Dr. Lazarus McCarthy Chakwera, who has the mandate to interdict
or suspend the Director General of the Anti-Corruption Bureau under the
Corrupt Practices Act decided not to suspend the said Director General.
2
6. The claimant further observed that, in terms of section 22 of the Corrupt
Practices Act, the Director General of the Anti-Corruption Bureau is not
amenable to any action or other proceedings for acts done in the course of her
work and done in good faith. The claimant observed that the impugned
decisions of the defendants were taken without any allegation of bad faith
against the Director General of the Anti-Corruption Bureau. And further that
there is no indication that the decision by the 3 rd defendant to interdict the
Director of the Anti-Corruption Bureau was taken by the President of the
Republic of Malawi as mandated under the governing statute, namely, the
Corrupt Practices Act.
7. It is in the foregoing context that the claimant sought and this Court granted
the permission to apply for a judicial review of the decisions of the defendants
to check the legality of the said decisions. This Court also stayed the impugned
decisions and restrained, by interlocutory injunction, the implementation of
the said decisions.
8. The defendants now seek that the permission be stayed pending their
application to discharge the said permission for a number of reasons that they
outline in the present application. The defendants justify the making of the
present application without notice to the claimant by asserting that the nature
of the issues on the present application are urgent and of paramount
importance to the nation and to all the parties involved and that a quick
resolution of the issues will be in the interest of all the parties involved.
9. On the issue of urgency of this application, this Court is not persuaded that
there is any urgency associated the issues within the present without notice
application. The issues on this application pertain to an audio recording which
has been in the public sphere since January last year, 2022. It is only recently,
end January, 2023 which is a year after the audio recording surfaced, that the
defendants decided to do something about the said audio recording in relation
to the Director General of the Anti-Corruption Bureau. The alleged sense of
urgency therefore appears misplaced.
10.This Court however agrees with the defendants that this matter is of
paramount importance to this nation as it essentially concerns the monstrous
vice that is corruption and the fight against the said vice within the legal
framework provided for such a vital fight.

3
11.The defendants have indicated nine grounds or reasons why the permission
granted by this Court to the claimant should be stayed pending the intended
application to set aside or discharge the said permission. This Court considers
these reasons to determine their merits and see indeed whether a stay must be
granted. A stay would be granted if it is just in the circumstances considering
the intended later application of the defendants. The nine grounds or reasons
are as follows:

i. The claimant, the Malawi Law Society, lacks locus standi or

sufficient interest in the matter at hand as there were no
demonstrable rights that had been violated in the manner the State
commenced the criminal proceedings in Criminal case number 236
of 2023 between The Republic v Martha Chizuma.
ii. The Malawi Law Society, has misread her objectives as provided
for under section 26 (1) [to read-section 64] of the Legal Education
and Legal Practitioners Act by instituting the present action as her
conduct is tantamount to interfering with lawfully and properly
instituted criminal proceedings under section 83 of the Criminal
Procedure and Evidence Code.
iii. The claimant’s conduct does not protect nor assist the public as her
conduct is tantamount to clogging the criminal justice machinery
(which is a public good) when there are readily available alternative
remedies to the aggrieved or accused person.
iv. The Order for permission to apply for judicial review was wrongly
granted by this Court when the accused person could have availed
herself and exhausted the available alternative remedies under
section 25 of the Courts Act and section 352 of Criminal Procedure
and Evidence Code.
v. Judicial review could not lie against the 2nd defendant’s decision as
her decision was made in exercise of her judicial functions and
therefore protected from any liability in terms of section 61 of the
Courts Act and as per the Supreme Court decision in the matter of
The State (On the application of the Malawi Revenue Authority) v

4
 The Chairperson of the Industrial Relations Court and another
MSCA case number 56 of 2021.
vi. The High Court Civil Division has no jurisdiction in form of civil
judicial review over such a criminal matter as there are alternative
remedies available in the High Court Criminal Division.
vii. The claimant, the Malawi Law Society, is acting like a proper
surrogate litigant when the actual aggrieved party is competent to
challenge the defendants’ conduct and has not challenged nor
complained in this matter.
viii. The issue of interdiction of Ms. Chizuma is a private issue between
Ms. Chizuma and her employer, and the proper procedure for
remedies is not the institution of judicial review proceedings in the
High Court but a proper application in the Industrial Relations Court
which has exclusive jurisdiction over employment and labour
related matters.
ix. The Malawi Law Society’s action against the defendants was made
without a Board Resolution of its members and is therefore contrary
to the Supreme Court decision of Dr. Chaponda and another v
Kajoloweka and others MSCA civil appeal number 5 of 2017.

12.The defendants filed a sworn statement in support of the application. The

sworn statement was made by counsel Chancy Gondwe for the defendants. In
his statement he stated that this matter is brought as an urgent application
considering the nature and the consequences of the interim reliefs granted by
this Court through the permission order granted to the claimant. He then stated
that the claimant, the Malawi Law Society, is a statutory body created under
section 25 (i) of the Legal Education and Legal Practitioners Act and draws
her mandate from section 26 of the Legal Education and Legal Practitioners
Act.
13.He asserted that the claimant specifically touted [its role under] section 26 (d)
of the Legal Education and Legal Practitioners Act, a role which is to protect
and assist the public on all matters touching on, ancillary to or incidental to
the law. He went on to posit that based on the application for permission to
apply for judicial review, there is no demonstration of any harm that the

5
 claimant has suffered as a result of the State commencing a criminal action
against the Director General of the Anti-Corruption Bureau, Ms. Chizuma. He
added that the aggrieved party has not complained against the decisions and
conduct of the defendants and instead the claimant which is acting as a
surrogate litigant and a busy body has instituted the present proceedings
against the continuation of the criminal proceedings against the Director
General of the Anti-Corruption Bureau, Ms. Martha Chizuma.
14.He then indicated that the criminal justice system is a public good and any
attempt by the claimant to suffocate the criminal justice system in favour of a
party who has not complained is contrary to the claimant’s objectives under
the Legal Education and Legal Practitioners Act and should be avoided at all
costs. He added that the conduct of the claimant in instituting the present
proceedings when the aggrieved party has not complained is tantamount to
instituting litigation which is unethical, more so when the proceedings are
intended to suffocate the public good which is the criminal justice system.
15.He then observed that the aggrieved person, Ms. Martha Chizuma, is yet to be
charged and that there are alternative remedies available to her in the course
of the criminal proceedings and that the claimant is not an aggrieved party in
relation to the criminal proceedings against Ms. Martha Chizuma and her
subsequent interdiction.
16.He pointed out that the High Court Criminal Division has got powers under
section 25 of the Courts Act and section 362 of the Corrupt Practices Act [that
reference to the Corrupt Practices Act must have been an error on counsel’s
part and should have read Criminal Procedure and Evidence Code] to exercise
powers of review in respect of the criminal proceedings brought against Ms.
Martha Chizuma. He added that Ms. Martha Chizuma also has a remedy of
challenging the charges before taking plea where she feels the same are
defective either in form or substance. He added that, the foregoing clearly
shows that there are alternative remedies available to the aggrieved party other
than riding on the present civil judicial review proceedings.
17.He then asserted that it is not true, as per the grounds on which relief is sought,
that there are no alternative or viable remedies available to the aggrieved
parties, after all the claimant is not an aggrieved party to the criminal
proceedings before the Chief Resident Magistrate Court. He added that even
where the claimant alleges that the 2nd defendant has very limited jurisdiction
6
 to resolve issues, the law provides for avenues of redress through reviews
before the Criminal Division of the High Court and not before this Court.
18.He then asserted that as regards the Interdiction Order, there is no written law
exempting the Anti-Corruption Bureau or its officers from the application of
the Public Service Act.
19.Counsel Gondwe then stated that members of the claimant are officers of this
Court and that active case management would dictate that the claimant inquire
from the Attorney General as head of the Bar for clarification of the only issue,
which is, if the 3rd defendant was not acting on the direction of or conveying
the decision of the President of the Republic of Malawi, Dr. Lazarus
McCarthy Chakwera.
20.He then asserted that the commencement of the judicial review proceedings
herein by the claimant at the Principal Registry when the matter could have
been brought before the Lilongwe Registry where the criminal charges are
before the Chief Resident Magistrate Court at Lilongwe is tantamount to
forum shopping and as such it would be appropriate that the present
proceedings be stayed and transferred to the appropriate forum. He asserted
further that the fact that this matter is being prosecuted on pro-bono basis on
the part of the Malawi Law Society is not a ground for commencing this matter
in Blantyre rather than in Lilongwe and is likely to be interpreted as forum
shopping on the part of the claimant. He added that the claimant is making its
position even worse considering that it is pursuing a matter in which it has not
demonstrated any injury or has not suffered any harm apart from parroting the
‘public interest’ defence. He also said that the issue of forum shopping has
once again manifested in this matter and this Court should strongly condemn
such conduct on the part of the claimant as it sets a very dangerous precedent
for its members.
21.He then stated that the issue of the interdiction is a private matter between Ms.
Martha Chizuma and her employer and that these issues ought to have been
brought before the Industrial Relations Court, a court with the requisite
jurisdiction to handle labour related matters other than the High Court. He
further stated that the claimant has lost its mandate in intervening on purely
private matters arising between an employer and her employee instead of
protecting and assisting the public on purely matters of law.

7
22.He then charged that there is no evidence that the Malawi Law Society met
and passed a resolution on whether to take up this matter or not.
23.He concluded that considering the grave and serious issues raised herein, it
would be in the interest of justice that the permission to apply for judicial
review and interlocutory injunction be stayed pending the defendants’
application to discharge both the permission and the interlocutory injunction.
24.In addition to the sworn statement, the defendants filed legal arguments in
support of their present application. They indicated that an order granted
without notice can be suspended without notice, and that it was stated in
Attorney General v Sunrise Pharmaceuticals and another [2013] MLR 1 that
where legality, regularity and excess of a judgment are in issue they constitute
sufficient reasons for granting a stay. The defendants asserted that the
proceedings before this Court are so irregular that they cannot be a basis for
the permission for judicial review and injunction as granted by this Court.
25.The defendants then alluded to sections 25 and 26 of the Courts Act which
gives the High Court review as well as general supervisory and revisionary
powers over proceedings in the subordinate courts. They quoted Prof.
Kapindu J in the case of The State and others ex parte Jumbe and others
Judicial Review case number 18 of 2015 where the Judge stated as follows:

…according to the rules,…courts will not normally grant judicial review where
there is another avenue of remedy available. It has been held that it is a cardinal
principle that, save in the most exceptional circumstances, the jurisdiction to grant
judicial review will not be exercised where other remedies are available and have
not been used.
So here is the conclusion of the whole matter: I cannot grant leave to apply for
judicial review because the applicants have an alternative remedial avenue. They
can seek review of the matter before a Judge of the High Court under the CP & EC,
under the Courts Act or under both pieces of legislation. I therefore direct that if
the applicants are still minded to have the decision in the court below reviewed,
they should adopt that procedure first. I am mindful that the High Court sitting here
at Zomba, as indeed the High Court sitting anywhere else in Malawi, has
jurisdiction and would be competent to conduct such a review should the applicants
elect to adopt the above-said review procedure.
I opine however that this matter can conveniently be dealt with at the High Court
Lilongwe Registry which, in terms of proper judicial administration, has general
oversight over the Chief Resident Magistrate’s Court at Lilongwe. I therefore order,

8
 for reasons of good and orderly judicial administration, that any such application
for review, should the applicants be minded to pursue the same, should not come
to this registry unless there be demonstrated compelling reasons why they may not
be dealt with by another Judge at the Lilongwe Registry. I dismiss the application
for leave to apply for judicial review. I make no order as to costs.

26.The defendants then submitted that it is clear that the allegedly injured person
has several alternative remedies which she can pursue. And that these
proceedings are an abuse of the court process.
27.The defendants then submitted that the claimant has no locus standi or
sufficient interest in this matter as contemplated in section 15 (2) of the
Constitution. They cited a number of authorities which indicate correctly that
only a person who has sufficient interest can commence proceedings before
this Court. See Chitakale Plantations Limited v Mary Woodworths and
another (2) [2010] MLR 62 (SCA).
28.The defendants then observed that section 64 (d) of the Legal Education and
Legal Practitioners Act provides that one of the objectives of the Malawi Law
Society is to protect matters of public interest touching on, ancillary to or
incidental to the law. They however indicated that caution must be exercised
in deciding what is in the public interest. They correctly cited the case of S v
Lilongwe Water Board & others, ex parte Malawi Law Society Judicial
Review case number 16 of 2017 where the Judge indicated that where the
matter was of public interest it was the duty of the Malawi Law Society to
take measures intended to protect the public within the meaning of section 26
(1) of the Legal Education and Legal Practitioners Act, in that case, on an
issue that directly touched on environmental law.
29.The defendants asserted that the issues of the charge sheet and interdiction
order herein have no public interest dimension and that the claimant cannot
have standing to commence these the present proceedings.
30.The defendants then submitted that there is no evidence of any resolution by
the membership of the claimant that the claimant commence the present
proceedings and that the executive committee of the claimant was never
delegated authority to commence these proceedings as required under section
72 of the Legal Education and Legal Practitioners Act which states that the
society may delegate its powers to any one of its officers. They added that the

9
 Malawi Law Society Rules also provide for delegation of the powers of the
Society. They indicated that the case of Chaponda and another v Kajoloweka
and others is authority for the proposition that for membership organizations
its officers must obtain authority before acting as the claimant did herein.
31. Lastly, but not least, the defendants asserted that the proceedings herein are
improper because the 2nd defendant cannot be sued before a court of law as
provided in section 61 of the Courts Act. The defendants also alluded to the
decision of the single member on a stay application pending judicial review
in matter of The State (On the application of the Malawi Revenue Authority)
v Chairperson of the Industrial Relations Court and another MSCA civil
appeal number 56 of 2021.
32.This Court will deal with this last issue of impropriety of these proceedings
first. The statement made concerning section 61 of the Courts Act and that
judicial officers within the Magistracy cannot be sued and therefore are not
amenable to judicial review was considered when this Court made its decision
on the judicial review application in issue. This Court found that the statement
by the single member of the apex court was made without consideration of all
necessary legal texts on the matter since the jurisdiction of the High Court to
hear judicial review of decisions of Magistrates Courts is statutory and is
unaffected by section 61 of the Courts Act which prohibits suits against
judicial officers. Judicial review is not a suit. It is a review of a decision and
does not attach to the judicial officer as such. Section 61 of the Courts Act
therefore does not bar judicial review. This is what this Court said after the
judicial review was done in The State (On the application of the Malawi
Revenue Authority) v Chairperson of the Industrial Relations Court and
another Judicial review case number 52 of 2021 (High Court) (unreported):

The first preliminary issue is dealt with, namely, whether judicial decisions of
lower courts such as the defendant are subject to judicial review. As indicated,
the defendant and the interested party submitted that the decision of the
defendant is not amenable to judicial review. At the oral hearing, the interested
party appeared to shift her position and she stated that the decision of the
defendant would only be subject to judicial review if bad faith was shown to
have motivated the same.

10
In this regard, the defendant and the interested party relied on section 61 of the
Courts Act which provides that:

No judge, magistrate or other person acting judicially shall be liable to be sued

in any court for any act done or ordered to be done by him in the discharge of
his judicial duty whether or not within the limits of his jurisdiction, nor shall
any order for costs be made against him, provided that he at the time in good
faith believed himself to have jurisdiction to do or order the act complained of.

The interested party and the defendant pointed out that the single member of
the Supreme Court of Appeal on the stay proceedings herein pointed out as
much that the defendant’s decisions cannot be amenable to judicial review on
account of section 61 of the Courts Act. They further pointed out that if the
defendant’s decisions are amenable to judicial review then judicial
independence would be lost and the judicial officers would be compelled to
make sworn statements and be subject of cross-examination on the same.

The claimant correctly observed in the view of this Court that section 61 of the
Court’s Act is not relevant to the issue of judicial review. It is not applicable.
The reason is that section 61 of the Court’s Act bars suits against judicial
officers in respect of judicial decisions. It must be appreciated that judicial
review proceedings and suits are different. By barring suits against judicial
officers in relation to judicial decisions, section 61 of the Courts Act does not
extend to judicial review proceedings in its application. The distinction between
a suit and judicial review proceedings must be appreciated.

The claimant correctly noted that it has been held that a suit and judicial review
proceedings are different. See State v Privatization Commission and another ex
parte Mwamondwe and another [2005] MLR 450 (HC). As such, when section
61of the Courts Act refers to protecting a judicial officer from a suit it means
precisely that and does not extend to bar judicial review proceedings against
decisions of judicial officers.

The interested party and the defendant also noted that the single Member of the
Supreme Court indicated on the stay of appeal decision herein that older
decisions that allowed judicial review against decisions of lower courts were
wrong and they relied mostly on Order 53 of the Supreme Court Rules that are
no longer applicable. Something was said about there being no inferior courts
in Malawi that can have their decisions subject to judicial review.

11
On the contrary, this Court observes that the jurisdiction of this Court on
judicial review is not based on the Rules either old or current. It rather emanates
from statute, being the Statute Law (Miscellaneous Provisions) Act. Part VI of
the Statute Law (Miscellaneous Provisions) Act is the law that grants this Court
power to make like orders of certiorari, mandamus and prohibition that are
usually sought on judicial review applications like the instant one. Such
jurisdiction is specifically conferred in section 16 (2) of the Statute Law
(Miscellaneous Provisions) Act. It is very instructive to note that section 17 (3)
Statute Law (Miscellaneous Provisions) Act specifically provides for the
maximum periods for application for judicial review of judgments and orders
and seeking orders akin to certiorari to quash the same. The Rules of procedure
as represented in the old Rules of Supreme Court and in the current Courts
(High Court) (Civil Procedure) Rules are procedure rules only made to regulate
judicial review proceedings as provided in section 17 of Statute Law
(Miscellaneous Provisions) Act but the jurisdiction to conduct judicial review
proceedings pertaining to lower court decisions is statutory. There is also be a
Constitutional dimension there in that the High Court may in proper cases be
asked to review such lower court decisions for compliance with the
Constitution.

This Court does not believe that the judicial officers in the lower courts will
lose their judicial independence when their decisions are subject to judicial
review. This Court when dealing with any judicial review considers carefully
whether to allow cross-examination of a deponent. And as a matter of practice
rarely will judicial review of a lower court decision involve contention of fact
such that the fear of loss of judicial independence due to potential to subject
such judicial officers to cross-examination is rather exaggerated.

In the premises, this Court finds that the first preliminary issue was not well
taken by the defendant and the interested party. The Statute Law (Miscellaneous
Provisions) Act settles the matter. No argument can be made against the
provisions of the Statute that is not yet repealed and not yet found to be contrary
to the Constitution. This Court also wishes to state that it is not bound by the
views expressed obiter by the Single member of the Supreme Court of Appeal
on the stay appeal herein since those views were expressed without hearing the
parties on the propriety of judicial proceedings against judicial officers within
the lower courts. This is because this issue was not in the appeal, the only issue
on appeal being about the stay. The views were also made with no reference to

12
 the relevant statute being Part VI of the Statute Law (Miscellaneous Provisions)
Act which settles the matter.

33.In view of the foregoing, it is the considered view of this Court that there is
nothing improper in these judicial review proceedings being had in relation to
a matter before the Magistracy. This Court’s firm view is therefore that there
is no merit in ground number v. raised by the defendants that judicial review
could not lie against the 2nd defendant’s decision as her decision was made in
exercise of her judicial functions and therefore protected from any liability in
terms of section 61 of the Courts Act and as per the Supreme Court decision
in the matter of The State (On the application of the Malawi Revenue
Authority) v The Chairperson of the Industrial Relations Court and another
MSCA case number 56 of 2021.

34.This Court next deals with grounds i to iv as advanced by the defendants on

the present application. By those grounds the defendants assert that the
claimant, the Malawi Law Society, lacks locus standi or sufficient interest in
the matter at hand as there were no demonstrable rights that had been violated
in the manner the State commenced the criminal proceedings in Criminal case
number 236 of 2023 between The Republic v Martha Chizuma. That the
Malawi Law Society, has misread her objectives as provided for under section
26 (1) [to read-section 64] of the Legal Education and Legal Practitioners Act
by instituting the present action as her conduct is tantamount to interfering
with lawfully and properly instituted criminal proceedings under section 83
of the Criminal Procedure and Evidence Code. That the claimant’s conduct
does not protect nor assist the public as her conduct is tantamount to clogging
the criminal justice machinery (which is a public good) when there are readily
available alternative remedies to the aggrieved or accused person. And, that
the Order for permission to apply for judicial review was wrongly granted by
this Court when the accused person could have availed herself and exhausted
the available alternative remedies under section 25 of the Courts Act and
section 352 of Criminal Procedure and Evidence Code.

35.It is clear to this Court that these four grounds are advanced by the defendants
at a complete cross purposes to the reasons supporting the application for

13
 permission to apply for judicial review which this Court considered before
granting the said permission. The Malawi Law Society clearly seeks to protect
on a matter of law of public significance or importance to do with the
operations of the Anti-Corruption Bureau as established under the Corrupt
Practices Act. The case of the claimant is that under the Corrupt Practices Act,
only the President of the Republic has power to suspend the Director of the
Anti-Corruption Bureau and that this is not what happened in this case. And
that, on the contrary, it is the 3rd defendant who sought to effect such a
suspension and this impairs the scheme set up by Parliament to regulate the
suspension of the Director General of the Anti-Corruption Bureau. Further,
that there is the issue of immunity from action.

36.In such circumstances, this Court is not persuaded by the defendants’

contention that the claimant lacks sufficient interest or locus standi in this
matter. The claimant appears to be within its statutory remit of protecting on
matters of public interest pertaining to the law, in this case, to do with the
working environment of the Anti-Corruption Bureau in its fight against
corruption under the Corrupt Practices Act. The claimant adds that the
Director General of the Anti-Corruption Bureau is immune from action or
other proceedings for official acts done in good faith. What the claimant is
asserting in these proceedings accords with the decision of this Court in the
case of S v Lilongwe Water Board & others, ex parte Malawi Law Society
Judicial Review case number 16 of 2017. In view of the foregoing, the
defendant’s contention cannot stand that the claimant’s interests have not been
harmed and that therefore the claimant has no sufficient interest in this matter.
The claimant proceeded in line with its statutory mandate under section 64 (d)
of the Legal Education and Legal Practitioners Act to protect on matters of
public interest touching on the law.

37.In the same vein, the defendants’ contention that the Malawi Law Society, has
misread her objectives as provided for under section 26 (1) [read- section 64]
of the Legal Education and Legal Practitioners Act by instituting the present
action as her conduct is tantamount to interfering with lawfully and properly
instituted criminal proceedings under section 83 of the Criminal Procedure
and Evidence Code cannot stand. It is the view of this Court that the claimant
14
 has not misread her mandate. Further, the defendants’ assertion that the
claimant’s conduct does not protect nor assist the public as her conduct is
tantamount to clogging the criminal justice machinery (which is a public
good) when there are readily available alternative remedies to the aggrieved
or accused person cannot stand. The claimant is doing what it is mandated to
do by statute to protect on matters of law of public interest.

38.Similarly, the defendants’ contention is untenable, namely, that the Order for
permission to apply for judicial review was wrongly granted by this Court
when the accused person could have availed herself and exhausted the
available alternative remedies under section 25 of the Courts Act and section
352 of Criminal Procedure and Evidence Code. The reason is that the claimant
in the present matter is exercising an important statutory mandate which
should not be conflated with the remedies available to Ms. Martha Chizuma
personally. The logic behind the exercise of this statutory function lies in the
fact that the issues at hand in these proceedings are beyond the personal
interests of Ms. Martha Chizuma. As such, this warrants a statutory body with
the requisite mandate, namely, the Malawi Law Society to intervene where it
feels that a matter of great importance to the nation, to use the words of the
defendants, is concerned. The defendants cannot insist that these issues are
confined to the personal remit of Ms. Martha Chizuma. The case of the
claimant is that the issues in these proceedings are about the legality of how
to deal with a Director General of the Anti-Corruption Bureau, who could be
anyone other than Ms. Martha Chizuma in the long run.

39.To put the foregoing contention beyond doubt, this Court wishes to point out
that there are a number of cases of public legal importance in which the
Malawi Law Society has commenced proceedings to similarly vindicate the
rule of law even when the supposed aggrieved party has not taken any action
personally. Fresh in our memories is the recent case in which the Office of the
President and Cabinet wanted to send a Chief Justice and a Justice of Appeal
on leave pending retirement in questionable circumstances and it was the
Malawi Law Society and others and not the Chief Justice or the Justice of
Appeal who went to Court to commence proceedings to interrogate the legal
architecture surrounding the important question of exercise of power to send
15
 a head of a branch of Government and the next most senior Justice of Appeal
on leave pending retirement. See The State (On the application of the Human
Rights Defenders Coalition and The Association of Magistrates in Malawi
and the Malawi Law Society) v The President of the Republic of Malawi and
The Secretary to the President and Cabinet (Also styled Chief Secretary to the
Government) Judicial Review case number 33 of 2020 (High Court)
(Unreported).This Court would caution that it is dangerous and unlawful to
now attempt to restrain the Malawi Law Society from exercising its very
critical statutory mandate in this regard by questioning that statutory mandate
without any grounds as the defendants seek to do here.

40.The preceding contention similarly applies with equal force to make untenable
grounds number vi, vii and viii on this application. By grounds number vi, vii
and vii the defendants contend that as follows: the High Court Civil Division
has no jurisdiction in form of civil judicial review over such a criminal matter
as there are alternative remedies available in the High Court Criminal
Division; the claimant; the Malawi Law Society, is acting like a proper
surrogate litigant when the actual aggrieved party is competent to challenge
the defendants’ conduct and has not challenged nor complained in this matter;
and, that the issue of interdiction of Ms. Chizuma is a private issue between
Ms. Chizuma and her employer, and the proper procedure for remedies is not
the institution of judicial review proceedings in the High Court but a proper
application in the Industrial Relations Court which has exclusive jurisdiction
over employment and labour related matters.

41.Given the exercise of the statutory function by the Malawi Law Society
herein, the Malawi Law Society aptly stated on seeking permission to apply
for judicial review that the most suitable mode of proceeding with the matter
at hand is by way of judicial review as stated above. The Malawi Law Society
has no alternative remedy as suggested by the defendants and the alternative
remedy argument cannot apply to the Malawi Law Society in the
circumstances. While exercising its statutory mandate in the present
circumstances, the Malawi Law Society cannot appear in criminal review
proceedings before the Criminal Division of the High Court as Ms. Martha
Chizuma would. The situation of the Malawi Law Society is unique to its rule
16
 in the statutory scheme. As earlier stated, the issues at hand to do with the
Director General of the Anti-Corruption Bureau are not strictly private
contractual issues. The issues are regulated by the Corrupt Practices Act and
that brings them squarely within public law, that is outside the private law. In
the end, in the foregoing premises, grounds number vi, vii and viii on this
application are untenable.

42.The last, but not least, ground to be considered on this application is ground
number ix, namely, that the Malawi Law Society’s action against the
defendants was made without a Board Resolution of its members and is
therefore contrary to the Supreme Court decision of Dr. Chaponda and
another v Kajoloweka and others MSCA civil appeal number 5 of 2017.

43.This Court agrees with the defendants that indeed the Malawi Law Society
delegates its authority to its officers from time to time. The premise from
which the defendants proceed is that the officers of the Malawi Law Society
herein have no such authority to carry out the mandate of the Law Society to
protect on matters of public interest touching on the law. One would expect
that it is the membership of the Malawi Law Society that should raise this
issue rather than the defendants. In any event, notwithstanding the Chaponda
and another v Kajolowe and another decision alluded to by the defendants,
there is nothing in the Courts (High Court) (Civil Procedure) Rules requiring
organizations like the Malawi Law Society to bring evidence of resolutions to
so proceed before commencing judicial review proceedings. As such, this
Court would wish to hear both parties, including the Malawi Law Society,
fully on this aspect at an appropriate time before being persuaded by the
argument of the defendants. In the meantime, this Court remains unpersuaded
by the force of this ground.

44.Lastly, this Court would reserve its comments on the question of forum
shopping and some other issues as they do not form the basis of this
application and only appeared in the arguments except to say that the Malawi
Law Society lawyers are based in Blantyre and for that reason when this Court
exercised its mind to the issue it did not find it untoward that the Malawi Law

17
 Society decided to file this matter in Blantyre which would be more
convenient to it as a claimant in the circumstances.

45.In the final analysis, this Court finds that the present application by the
defendants lacks merit and it is declined accordingly.

Made in chambers at Blantyre this 8th February, 2023.

M.A. Tembo
JUDGE

18