MISCELLANEOUS CIVIL APPLICATION NUMBER 73 OF 1997
THE MINISTER OF HOME AFFAIRS....................................FIRST RESPONDENT
THE CONTROLLER OF IMMIGRATION...........................SECOND APPLICANT
CORAM: D F MWAUNGULU(Judge)
Mrs. Okeke is Malawian. Her husband is Nigerian. On 10th January, 1997, at the Registrar’s office in Blantyre Mrs. Okeke married Peter John Okeke. Mrs. Okeke and her husband lived in Malawi till the events leading to this application. Mr. Okeke left for Nigeria. His wife was pregnant. This judicial review bases on what happened on 3rd February, 1998 when Mr. Okeke arrival at Lilongwe International Airport.
On arrival at Lilongwe International Airport Mr. Okeke, as he should have, presented himself before immigration officials. Mrs. Okeke’s affidavit contains Mr. Okeke’s version. According to Mrs. Okeke, immigration officials detained her husband. They told him they were deporting him to Nigeria. The reason was given as that he was Nigerian and that Nigerians cause trouble in Malawi by bringing fake foreign currency. Mrs. Okeke herself, since his deportation, met immigration officers to understand what happened. She deposes she received little, if any, help. She therefore knows little about why and what happened to her husband when deported at Lilongwe International Airport. Immigration officials therefore never told her why her husband was refused entry to Malawi.
The Immigration Officials, having failed to disclose the precise reasons
for deporting her husband, do so now in the affidavit opposing her application.
The Acting Chief Immigration Officer admits he on 3rd February, 1998 refused
to let Peter John Okeke, a Nigerian, enter Malawi. The reason he
gives is that Mr. Peter John Okeke needed a visa. He contends that
our laws require Nigerians entering Malawi to have a visa.
He admits detaining and deporting Mr. Okeke after refusing him entry.
He contends marriage never exempted the Nigerian from the visa requirement.
He thinks therefore that the respondent’s actions in refusing Mr. Okeke
entry were neither unconstitutional nor oppressive.
The sixth ground is difficult to appreciate. One has to make the best of it. She contends under section 9 of the Malawi Citizenship Act one year has not expired lapsed. Alternatively, she thinks sections 9 and 16 of the Malawi Citizenship Act discriminate against women under section 22 of the Constitution in that Malawian women may not marry foreigners and obtain Malawian citizenship should the women and their husbands choose. She contends the police and immigration officer’s conduct violated section 20 of the Constitution because her husband was discriminated against purely because he is Nigerian. Finally she thinks her husband would have been treated differently if his nationality was other than Nigerian.
She seeks four reliefs. First, she wants an order similar to a certiorari quashing the police and immigration officers’ decisions arresting, detaining and deporting her husband. Secondly, she wants an order restraining the respondents deporting her husband. Thirdly, she wants the respondents to compensate her for wrongfully arresting, detaining and deporting her husband. Finally, she wants further damages arising from the matters mentioned.
The matter of locus standi has been to the Supreme Court of Appeal once in The Attorney General v the Malawi Congress Party and Others, popularly known as the Press Trust Case. The particular conclusions, which raise immense questions on locus standi, do not concern us here. It is the conclusion that our citizens have no right under our Constitution to question fundamental human rights violations unless they have a sufficient interest in the matter that future generations may find very difficult to comprehend or justify. The Supreme Court’s conclusion is probably comparative. Under the American Constitution the citizen’s rights must have been violated for him to have locus standi. That requirement is not critical or crucial north of the border, Canada. Much suggests our constitutional arrangements are akin to Canadian jurisprudence and constitutional theory. These are unimportant considerations, however, when dealing with the 1994 Constitution.
It is the court’s duty to interpret this Constitution understanding it ascribes to itself a potency and uniqueness not to be overshadowed by general considerations in other constitutional arrangements. It is fundamental therefore to consider the Constitution’s wording, drawing much one can reasonably draw from what happened around the constitutional change and what brought it out. A country’s Constitution must be understood in the wider context of the country’s aspirations. Courts must interpret the Malawi Constitution from the democratic ideal and its astute protection of fundamental human rights. It is characteristic that our Constitution, anticipating the problems it intended to forestall and our aspirations for promoting democracy and fundamental human rights, provides notions unheard of or unthought of in modern constitutional and political theory, conceptualisation and thought. This goes to its uniqueness.
The more one agonizes on understanding section 15(2) and the Supreme Court decision in the Press Trust case the more convinced one becomes that standing cannot be restricted to the person whose rights are violated. Section 15(2) provides:
“Any person or group of persons with sufficient interest in the protection and enforcement of rights under this chapter shall be entitled to the assistance of the Courts, the Ombudsman, the Human Rights Commission and other organs of government to ensure the promotion, protection and redress of grievances in respect of those rights.”
The more one ponders the section, the Supreme Court of Appeal decision and what the Constitutional framers wanted to achieve the clearer it becomes on close reading of section 15(2) that this is not a standing provision. Nothing suggests that the person with standing is one whose rights are violated. Unless, of course, if the underlined words are synonymous with the suggestion that one’s rights must have been violated. It is useful to examine key phrases in the section to see that restricting standing to a victim of violation is indeed a very limited and limiting interpretation of section 15(2).
Any person or any group of persons who establishes a sufficient interest in the protection and promotion of rights can enforce and protect rights under our Constitution. The section is salutary. It gives standing to those whose rights are violated and envisages persons or groups of persons who may be established solely for protecting and enforcing rights. Obviously a person whose right is violated has standing. She has it because of that. It is unnecessary that she should have a sufficient interest in the protection and enforcement of rights. Such a person has interest to have the rights violated to be enforced and protected. Suggesting that only the person whose rights are violated has a sufficient interest in the protection and enforcement of rights, and I emphasise, rights, is a restrictive and unjustified interpretation of section 15(2). The argument that only the person whose rights are violated has a sufficient interest in the enforcement and protection of rights under our Constitution is non sequitur. Section 15(2) of the Constitution cannot be restricted to the victim of violation.
Any person or group of persons who can demonstrate a sufficient interest in the protection and enforcement of rights can seek the assistance of the Courts, the Ombudsman, the Human Rights Commission and other government organs. This view is supported by the House of Lords decision in R v Inland Revenue Commissioners ex parte National Federation of Self Employed and Small Businesses Ltd.,  A C 617. There Lord Diplock said:
“ It would be a grave lacuna in our system of public law that if a pressure group like the Federation, even a single spirited taxpayer was prevented by an outdated technical rule of standing from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped.”
Blackburn v Attorney General,  1 W L R 1037, is the Court of Appeal’s
decision to the same effect. There Lord Denning, M R, said:
The interest can be public or private. The applicant can be a person, natural or artificial, or a group of persons. A group can be a political party, a pressure group or interest group. Our Constitution allows this liberality.
This is more pronounced when one considers institutions designated to assist. A person or groups of persons have access and can be assisted by (1) the Courts, (2) the Human Rights Commission and, (3) the Ombudsman and (4) other government organs. It is curious that only those whose rights are affected can complain to these institutions. That may be correct with Courts. That the Ombudsman and Human Rights Commission have got wide investigating powers undermines the suggestion that only the affected person can have the assistance of these institutions. More specifically, the Human Rights Commission under the Constitution can investigate human rights violations. It would surprise the Human Rights Commission to learn they cannot investigate human rights violations if complaints are from people other than those whose rights are violated. Section 15 (2) encourages persons, institutions and groups of people and individuals, when they detect human right violations, to get help from courts, the Human Rights Commission, the Ombudsman and other government organs however or whatever that help.
This becomes important for human rights groups, organizations, and institutions. They should, where the case is appropriate, be assisted by institutions in section 15(2). Government organs are the most interesting of institutions mentioned in the subsection. It is helpful that an individual or group of persons should, even if not directly affected by the violation, draw government’s attention to the violations if that helps protect and enforce rights.
The purpose of such a section is right in the section itself. It is that in the long run human rights might be promoted, protected and enforced, through a proper grievance redress system. Definitely a narrow construction is outside the spirit of this provision which, on its correct reading and understanding, wants a respect not for particular rights but a corpus of rights, the rights regime in general. No authority or individual must be allowed to meddle with the rights regime. That is why section 15(2) uses the plural ‘rights.’ This is underscored by section 46. Subsection 1 provides:
“Save in so far as it may be authorised to do so by the constitution, the National Assembly or any subordinate legislative authority shall not make any law and executive and agencies of government shall not make any action which abolishes, abridges the fundamental rights and freedoms conferred by the chapter and any law or action in contravention thereof shall to the extent of the contravention be invalid.”
Subsection 2 reads;
Subsection 3 says;
“Where a court referred to subsection 2 (a) finds that right or
freedoms conferred by this constitution have been unlawfully denied or
violated. It shall have the power to make any orders that are
necessary and appropriate to secure the enjoyment of those rights and freedoms
and where a court finds that a threat exists to such rights or freedoms
it shall have the powers to make any orders necessary and appropriate to
prevent those rights and freedoms from being unlawfully denied or violated.”
Subsection 4 states;
“ A court referred to in subsection 2 shall have the power to award compensation to any person whose rights or freedoms have been unlawfully denied or violated where it considers it to be appropriate in the circumstances of a particular case.”
Section 46 establishes a scheme for protection of fundamental human rights. This scheme undermines the restrictive interpretation of section 15(2). The scheme is comprehensive. It provides a better and replete scheme of insuring fundamental rights, once violated, are enjoyed fully and, through the compensation system, properly redressed and recompensed.
Only a passing comment should be made about subsection 1. The constitutional framers thought the first step to ensure enjoyment of these rights was to enjoin lawmakers by prohibiting and constraining passing of legislation that undermines constitutional rights. Equally subsection 1 circumscribes executive actions and decisions within the spirit and countenance of the fundamental rights the Constitution enshrines. The scheme comprehensively prevents legislation and executive policies and actions undermining fundamental rights the Constitution protects.
The introductory words to this subsection are significant and consequential. The introductory words in this section are ‘any person who claims that the fundamental rights or freedom protected by this constitution’. ‘Any’ means any. The interpretation of these words can be two folds; First the wording can mean that the claimant’s own right must be violated. That is possible. If the constitutional framers intended this result the apt wording instead of the word ‘a’ was ‘Any person who claims that ‘his,’ ‘her’ or ‘one’s’ right protected by this constitution has been violated.” This is not how the constitutional framers worded the provision. They used general words, words broad enough to encompass the possibility that the claimant’s rights need not necessarily be violated. The article ‘a’ in the subsection is significant. It pushes the focus of the provision to the importance of the right while recognising the victim of such violation. Consequently, a person who notices that a right is violated can go to court, to the Ombudsman or Human Right Commission to protect or enforce that right. On close reading of this section, it would be reading and introducing into constitutional provision a proposition that might not be justified to suggest that the section requires a claimant’s rights be violated if the Court, the Ombudsman and the Human Rights Commission are to assist her.
There are two policy objections to this interpretation. First, is the fear that the interpretation could result in inundation in the court by activists and busybodies who, on any mishap by government, public bodies or private citizens in following fundamental human rights under the Constitution, would come to the courts in matters which strictly speaking are not their business. Secondly it is wonderful that strangers should be allowed to prosecute and promote rights. Both arguments are valid. There are however counter arguments.
As regards inundation, the assumption is that generally people rush and prosecutes rights for others for the fun of it. This is not true. Litigation costs, delay and backlog in the long run prevent a rush on the judicial system. More importantly, the reason presupposes that this rule produces the suggested outcome. This is not some sure premiss. Experience suggests otherwise. World over political parties(Germany in 2001 and Malawi 1995), interest groups pressure groups or individuals take this step where there is an apprehension some important issue is at stake. Allowing for such a rule in practice introduces better chances for protection of fundamental rights. This interpretation accords with the general policy direction and purpose underlying the new constitutional arrangements.
This approach in not new. Even in a country with strict parliamentary constitutionalism like the United Kingdom, the House of Lords is reluctant to put this kind of restriction on locus standi. There is now a growing understanding that citizens, who see serious wrongs by those given constitutional and statutory powers, are not prevented from ensuring that public officials exercised power correctly by a rule which strictly speaking is rule of practice or adjectival law. A lot of the consequences of producing substantial justice between citizens and those who exercise power cannot be compromised by a rule that restricts the rights of citizens to address wrongs that political institutions are perpetrating against citizens. Our constitution requires an interpretation that regards international precedents. On reading sections 15(2) and 46 it is clear the constitutional framers never intended the restrictive interpretation. This is the approach in England and Wales. There is preference for the general approach against the limited approach.
This calls for a definition of sufficient interest in the constitution. That is really a matter of construction. In my judgment it is a question not based on any precise understanding of what the words might mean. Whatever definition is arrived at it maybe very constricted. It is because such a definition must be so encompassing as to cover and countenance factual situations incapable of precise definition. It follows therefore that the sufficient interest will not be determined as a matter of linguistic construction. It will turn out on facts of the particular case which should themselves be established on the relationship between the parties and the activity complained of. The words sufficient interest are the words used in the section 31(3) of the Supreme Court of Appeal Act 1981 in England and Wales in relation to the power of judicial review. On the actual wording of the section, the authors of the Supreme Court Practice, 1995 ed., Sweet and Maxwell say this about the purport of the section:
“The overriding rule governing the status of the applicant to apply for judicial review is that the court must consider that he has sufficient interest in the matter to which the application relates¼If the applicant has a direct personal interest in the relief which he is seeking he will very rightly be considered as having the sufficient interest in the matter in which the application makes. If however the interest in the matter is not direct or personal but is a general or public interest, it will be for the court to determine whether he has the requisite standing to apply for judicial review. Clearly, the formula sufficient interest is not intended to create a class of person popularly referred to as a private attorney generals who seeks to champion public interests, in which he is not himself directly or personally concerned under the guise of applying for judicial review. “
Even on Lord Roskill’s construction of the words in section 31(3) of the Supreme Court of Appeal Act 1981, the applicant here is not a private attorney general enforcing a public interest issue. Obviously the decision to detain and deport her husband has a direct impact on her life. There is sufficient connection between the applicant and the matter which the application relates. It is however incorrect to transpose words in an English statute to supplant the wording in section 15(2).
For the applicant here, if the construction is as I advocate, there is no problem. Indeed, as we see shortly, Mr. Okeke’s fundamental rights were violated. On the construction I advocate the applicant or indeed any person could come to court to ensure Mr. Okeke enjoyed his rights. It is to overcome the difficulties mentioned following from the restrictive construction that the applicant here resorts to her own bundle of rights to overturn the immigration Officer’s decision. The consequences are that her husband would be allowed to enter the country so that she enjoys her full rights. Under the construction advocated, there is no impediment to the applicant here to come to a court of law and question the immigration officer’s decision which, as we see shortly, was incorrect.
“In the recent decision Ratiggan and Others v Chief Immigration, Zimbabwe, and others SA 64/94(not yet reported) this Court declared that a female citizen of Zimbabwe, married to an alien, being a national of another country, is entitled by virtue of the protection of freedom of movement under section 22(1)( in chapter III of the Constitution of Zimbabwe to reside permanently with her husband in any part of Zimbabwe. For to prohibit the husband of a marriage genuinely entered into with the mutual intention of establishing consortium ominis vitae, from residing in Zimbabwe would undermine and devalue the exercise of the fundamental and an unqualified right of the wife, as a citizen and member of a family unit, to live here.”
There has always been a reciprocal duty of support between spouses as
was observed in Woodhead v Woodhead (3) SA 138 (SR) at 139H-140A,
McKelvey v Cownu No. 1980 (4) SA 525 (Z), 526G and Witham v Minister of
Home Affairs 1989 (1) SA 117(ZH), 131F-G. The Honourable Chief Justice
observed that in practice the duty to maintain the household rests primarily
on the husband. The husband has to provide the matrimonial home,
fend for the family and provide nourishment and medical and dental care.
Generally he cannot desist from this responsibility by insisting that the
wife’s relations, friends or charity are helping the wife. The Honourable
Chief Justice went on to say:
Apart from the general law and constitutional provisions emphasizing the rights of spouses and citizens to family, there are international instruments setting standards and aspirations which our legal system must aim to achieve. These obligations require our legal system to adopt systems of laws that accord citizens these rights and reduce likelihood of undermining these rights. These instruments require authorities of member countries not to undermine these standards and principles in decisions affecting citizens.
The Mauritian government passed a law to remove the right of residence and immunity from deportation from alien husbands married to Mauritian women. The united Nations Human Rights Committee in Aumeeruddy Cziffra and others vs Mauritius, (1981) 62 International Law Reports 255, 293-294 said:
“The committee takes the view that the common residence of husband and wife has to be considered as the normal behaviour of a family. Hence, and as the state party has admitted, the exclusion of a person from a country where close members of his family are living can amount to an interference in the meaning of article 17. In principle article 17 (1) applies also when one of the spouses is an alien. Whether the existence and application of immigration laws affecting the residence of the family member is compatible with Covenant, depends on whether such interference is ‘either arbitrary or unlawful’ as stated in article 17(1) or conflicts in any other way with the State party’s obligation under the Covenant.”
The decisions illustrate the length the court takes to preserve the rights of spouses and others to family. In the Belgium and French references, the spouse’s rights to enjoy a normal family life were trumpeted against public policy concerns of the deportees criminal record. In the Mauritian case, the United Nations Human Rights committee criticised application of arbitrary immigration laws clearly interfering with family rights. This begs the question whether the public officials acted arbitrarily to Mr. Okeke.
The reasons for arresting and deporting Mr. Okeke appear ununderstandable. If, as the applicant suggests, the only reason the applicant was arrested and detained is because Mr. Okeke is a Nigerian who, according to immigration officers, like most Nigerians, is apt for mischief, the applicant is justified, in a sense, to think that the decision discriminated against her husband. I have concluded that this was not true. I agree with the Chief Immigration Officer that he arrested and subsequent deported Mr. Okeke because Mr. Okeke never had a visa to enter Malawi. The premise of course is that Nigerians entering Malawi must have a visa.
One thing never happened here which, for reasons appearing later, is significant. The Immigration Act itself requires immigration authorities to give the deportee in writing the reasons for deportation. The Chief Immigration Officer does not suggest this was the case. In view of the applicant’s assertions I am reluctant to presume regularity on by public officials. Apart from the constitutional requirement that reasons for administrative action must be in writing, it was important here to give a written notice to Mr. Okeke. This written notice sets out the Appeal procedures under the Immigration Act. The immigration official’s failure to give a written notice might have and did in fact jeopardise Mr. Okeke’s and the applicant’s right to utilise the appeal process the Act created. The written notice of the reasons for deportation should have indicated to the deportee the presence and process of the appeal procedure. This omission is crucial for another important reason.
Here, even for the reason the Chief Immigration Officer suggests, Mr. Okeke’s deportation was beyond the powers of the Chief Immigration Officer, and unreasonable according to Associated Provincial Picture Houses Ltd v Wednesbury Corporation  2 All E R, 680. The Chief Immigration Officer’s decision to deport Mr. Okeke for not having a visa for entry into Malawi was erroneous. It has not been suggested that the schedule to the Immigration Act has been amended. Curiously both counsel never raised this aspect.
The schedule to the Act lists Nigeria as one country whose national’s
entry into Malawi does not require a visa. It might be that Nigeria under
its laws requires Malawians entering Nigeria to have a visa. On reciprocity
Malawi should have similar limitations on Nigerian nationals. That
however requires amending the law. The Chief Immigration Officer therefore
could not properly deport Mr. Okeke because Mr. Okeke required a visa to
enter Malawi. That decision was beyond the law and unreasonable on
the Associated Provincial Picture Houses Ltd vs Wednesbury Corporation
principle. Associated Provincial Picture Houses Ltd vs Wednesbury
Corporation was a Court of Appeal decision approved by the House
of Lords in R vs Hillingdon London Borough Council ex p. Puhlohofer 
a C 484. In the House of Lords the Lord Brightman, in a speech in
which the other members of the House agreed, said:
As Lord Green, M R, himself observed in Associated Provincial Picture Houses Ltd vs Wednesbury Corporation, decisions of persons of or bodies performing public duties or functions will be quashed or dealt with under judicial review proceedings where the court concludes that the decision is such that no such person or body properly directing itself on the relevant law and acting reasonably could have decided.
On the law as it was, no reasonable Chief Immigration Officer would have deported the applicant. Regardless, given the family ties just mentioned, the Chief Immigration Officer could have considered the applicant’s rights mentioned before deporting Mr. Okeke. The immigration officials in deporting never considered Mr. Okeke family connections to Malawi. A court will quash a decision if a body or authority performing public functions fails to consider matters pertinent to the decision. On the principles indicated, the Chief Immigration Officer should have leaned toward preserving rights the applicant complains, correctly in my view, were violated by the public officials’ actions.
Mr. Kasambala raises a line of argument based on section 9 of the Malawi Citizenship Act. He submits that section 9 discriminates against women and is therefore unconstitutional. The matter does not arise on the facts before me. It is unnecessary to decide it.
I therefore quash the order of the Chief Immigration Officer refusing Mr. Okeke entry into Malawi. The claim for damages is reserved for evidence and argument.
Made in open court this 8th Day of July 2001
D F Mwaungulu