App. 022/2017_Harold Munthani vs Malawi
Harold Mbalanda Munthani vs Republic of Malawi
On July 27th, 2017, Mr. Harold Mbalanda Munthani (the Applicant) filed before the African Court of Human and Peoples’ Rights (the Court or the ACHPR) an application instituting proceedings against the Republic of Malawi for alleged violations of the African Charter on Human and Peoples’ Rights (the Charter) in its articles 3, 7 and 14.
Mr. Munthani, son of the late Mr. Mbalanda Mweziwapala Munthani (the deceased), claims that the Malawian government, applying a confiscation law, confiscated all property belonging to the diceased on January 26th, 1976 without any compensation. Following the adoption of a new Constitution in 1994, Malawi established a National Compensation Tribunal with exclusive jurisdiction to hear grievances concerning Malawi’s alleged civil and criminal liability for acts occurring prior to 1994. The applicant contends that the deceased had brought proceedings before that Court in order to receive compensation for the confiscation of his property. In June 2003, the Administrator of the Tribunal recommended to the competent authorities that the property of the deceased be returned to him.
Following the Malawian government’s refusal to return the disputed property, the deceased filed an application with the High Court of Malawi, which on October 21st, 2005 ruled that the confiscation of Mr. Muthani’s property without compensation constituted a violation of his right to property, ordered its restitution as well as payment of damages. However, when the case was entered on the docket for assessment of damages, the High Court issued an order dismissing the claim for compensation for foreclosure under the Statute of Limitations. Despite the various proceedings undertaken, the applicant maintains that his late father, from cujus, died in November 2010 without having received any compensation for the confiscation of his property. In a correspondence dated May 23rd, 2016, the Attorney General of Malawi informed the complainant that no compensation could be awarded outside the scope of the Tribunal, whose mandate had expired.
As a preliminary point, Mali raised objections regarding lack of jurisdiction and inadmissibility of the application. After examination, the Court concluded that the case was admissible and ruled that it had jurisdiction to hear it. It then turned to its merits :
First of all, with regard to the alleged violation of the right to equal protection before the law (Article 3 of the Charter), the applicant contends that the defendant breached that right by failing to provide for compensation and by excluding the jurisdiction of the domestic courts to hear related remedies. Malawi replied that the complainant still had domestic remedies to assert the same right. After examining the evidence submitted, the Court concluded that the Tribunal set up for the purpose of hearing the dispute over compensation for victims had heard several applications from other citizens, who had benefited from legal remedies and had received compensation for the confiscation of their property. The deceased, for his part, was unable to obtain restitution because of the end of the Tribunal’s mandate, which was not extended by the Malawian government. Given that only that Court had jurisdiction to hear those cases, the other legal remedies were not available for the deceased. The legal vacuum created constitutes, in the Court’s view, a violation of Section 3(2) of the Charter.
With regards to the alleged violation of his right to a hearing (Article 7(1) of the Charter), the applicant claims that the non-execution of the Tribunal’s decision, the failure to extend his mandate and the exclusion from the jurisdiction of the ordinary courts constitute a violation of his rights. Malawi refutes this argument. The Court decided that:
- The Tribunal’s communications in which it recommended the return of the property of the deceased were not enforceable as a judicial decision. Accordingly, the Government’s non-performance was not a violation of the right to hear the defendant’s case;
- The failure to extend the Tribunal’s mandate when it had not judged all the cases pending before it necessarily placed complainants, including the applicant, in a situation of legal uncertainty, incompatible with the defendant’s right to have his case heard;
- In accordance with its settled case-law, the exclusion of the jurisdiction of the domestic courts (in this case the Supreme Court and the Constitutional Court) generally entails a violation of the right to have one’s case heard. The fact that the Tribunal has a limited mandate in time and that it had exclusive jurisdiction to hear this dispute contributes to the violation of the Applicant’s right.
Finally, as regards the alleged violation of the right to a remedy (Articles 1 and 7 of the Charter), the Court affirms that the right to a remedy is included in the obligation to establish judicial or other mechanisms to remedy the alleged violations of the substantive rights protected by the Charter and in the right to have one’s case heard.
The Court awards 210 million Kwacha to the Applicant and his family as compensation for the damage suffered.
This summary is provided for informational purposes only, does not involve the responsibility of Dome and should in no way be used as a substitute for a careful reading of the judgment and order of the case.
