Restriction of political rights: a repeat of history

This week the Deputy Registrar of Political Parties rejected an application by UTM to register as a political party. The reason given for the rejection is not simply because there is already a political party registered with that abbreviated name. The Deputy Registrar gave a complicated reason for his decision, effectively accusing the party or its agents of attempting to mislead his office. He wrote:

“It is my view that the decision to present registration documents in the name of UTM and not the full name, United Transformation Movement from which the abbreviation UTM derives, was willfully intended to mislead the Registrar of Political Parties for the purposes of registration of the party. I believe that the scheme to mislead the Registrar was motivated by knowledge by the applicant of the existence as a registered part of the United Transformation Party (UTP), being a name which resembles that of the United Transformation Movement and as such a matter which Section 7(b)(ii), the Registrar of Political Parties would have to consider, in determining the registration of the applicant at hand.”

In the same week, the City of Blantyre refused to grant UTM permission to hold a rally in Ndirande, putatively on the ground that UTM was not registered as a political party, citing the provisions of the Political Parties (Registration and Regulations) Act.

Both decisions came as a surprise to the general public and received wide publicity for a good reason: Malawians are by now entitled to think that these decisions belong in the past. We must learn from the past and not repeat the same mistakes.

Freedom of association and its related freedom to form, join, participate in and recruit for a political party are crucial rights in our democracy. Political parties provide a forum by which individuals can pool their resources together to contest for public office or influence the political life of a country. They are seen as custodians of democracy.

The entirety of our new constitutional dispensation rests on multipartism.  Boggled down by a long period of one-party dictatorship, we chose political pluralism as a bedrock of our political system to ensure that there is competition for public office, wider participation of the citizenry in public affairs and effective accountability for public power.

The two decisions mentioned above constitute prima-facie violations of the two freedoms mentioned above. There is no doubt that both these freedoms are subject to reasonable limitations prescribed by law. Indeed, the Political Parties (Registration) Act and the Political Parties Act, which seeks to replace the former, provide for the registration of political parties and for circumstances under which registration may be refused.

However, registration procedures are expected to facilitate and enable political parties to participate in the affairs of the nation. Those charged with the responsibility of facilitating such registration should therefore not weaponise these procedures. Furthermore, the courts generally interpret the circumstances under which registration may be refused restrictively to ensure that the affected rights are not unduly limited, and ultimately that democratic life is not suffocated.

The reasons given by the Deputy Director of Political Parties for the refusal to register the party are questionable for a number of reasons. For one thing, while the Registrar can refuse registration on the ground that another party exists, this does not appear to be the simple reason why he rejected the application. The Registrar claims that the applicant ‘willfully intended to deceive the Registrar’ and, consequently, of violating the relevant Act. The factual basis on which this conclusion was made is unclear. Even if there was a factual basis for such a finding, there is no indication that the applicant was given an opportunity to be heard on the matter, thereby violating its right to administrative justice. For another, there is no good reason for saying that the full names of the two political parties are confusing.

The section relied upon by the Deputy Registrar relates to involvement in an election, which is something that falls within the mandate of the Electoral Commission, and not to registration of a political party.

Previous court cases have shown that the courts will protect unregistered pressure groups and political parties before registration. This is understandable because the relevant legislation presumes that a political party is formed before it is registered. A political party is by definition an association of individuals, and to expect that its registration must precede its formation is a contradiction and possibly counterproductive to engendering internal party democracy, which is crucial to multipartism.

The courts have particularly frowned upon the practice by public authorities of interfering with the right of political parties, associations and individuals to hold assembles and political rallies freely.  They have emphasised that public authorities do not have the power to give permission to hold a public rally. Individuals and political parties are only expected to give notice to hold such events and public authorities have a duty to ensure that such events are held peacefully. While this might warrant considerations of security and public order, public authorities cannot, without evidence, prohibit any political formation from holding a rally on those grounds.

In this instance, the City of Blantyre purported to rely on a law concerning the registration of political parties (over which it has no authority) to make decisions regarding the facilitation of freedom of assembly, which is an entirely different matter.

We have reached a stage where the gambits the two public authorities used to frustrate a political formation from enjoying its political rights should never occur. They have no place in our political system, and create unnecessary tension and negative publicity for the country.

*Danwood Chirwa is Professor of Law at University of Cape Town in South Africa

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