By Duncan Mlanjira
Malawi Law Society (MLS) is recommending that the measures announced by the President and all civil protection pursuant to the declared state of disaster need to be reduced into law; either as a substantive Act of Parliament, or subsidiary legislation.
“Failure to do so is to deny the people of Malawi participation in the response to the declared disaster on two fronts: first, there would be no consultative input from the people of Malawi, and second, the people will not be able to hold the President or the Special Cabinet Committee accountable,” says MLS in its Legal Guidance Paper on Management of COVID-19 Disaster under the subhead ‘The Role of Statutory Interlocutors’.
In the preamble, the Law Society says this may not be the place to outline the amphibious character of the Malawi Law Society but suffice to say the legislature created it hierarchically as a supervisory authority under dual competent authority of both the Chief Justice and the Minister of Justice with functions akin to those of the controlling officer in the public service, unlike the Supervisory Authority of the Legal Education Council which falls under the Executive.
“Therefore, the Malawi Law Society straddles both the Judiciary and Executive. Horizontally the legislature delegated its oversight and some legislative responsibilities for the enforcement and practice of the law to the Chief Justice, the Minister of Justice and the Malawi Law Society.
“In addition, the Malawi Law Society was specifically mandated to protect matters of public interest in Malawi.
“The competent authority for delivery of health services is the Minister responsible for health but the Medical Council is the supervisory authority mandated to assist in promoting and improving the health of the population of Malawi; to control and exercise authority over training as well as the performance of practices of diagnosis, treatment or prevention of physical or mental diseases, illnesses or deficiencies.
“The Society of Medical Doctors has majority representation on the Medical Council. Both the Malawi Law Society and the Society of Medical Doctors have expressed interest to participate in or provide suggestions for civil protection in the declared disaster.
“In this they are not begging the Government or the Cabinet Committee but merely reminding the authorities that the two institutions are major and critical stakeholders with legal mandate in the provision of civil protection in the declared disaster.
“They are mandated by Acts of Parliament which are authorized by the Constitution. It must be appreciated that the President is the head of Cabinet and therefore communication to either the President directly as was done by the Malawi Law Society or through the Cabinet Committee as was done by the Society of Medical Doctors is addressing the same institution.
“Therefore, once they have expressed this willingness, the President has no option but to hear them, hear their proposals, or consult them and or involve them in the civil protection provided in the declared disaster.
“This is because section 88(2) of the Constitution imposes a duty on the President to provide executive leadership ‘in accordance with this Constitution and the laws of the Republic’.
“The laws of the Republic have given the mandate to the Malawi Law Society and the Society of Doctors (through the Medical Council) to provide to the people of Malawi legal and health civil protection.
“To deny these two institutions any role in the provision of civil protection pursuant to the declaration of a state of disaster or to deny or ignore to consider their proposals through active consultation is to deny parliamentary oversight and to deny citizenship participation through Parliamentary representation in the response to COVID-19; and the provision of civil protection.”
The Society further says the Legal Affairs Committee of Parliament is expressly mandated to scrutinize legislation including subsidiary legislation and any performance of the legislation’s mandate.
And that the Budget and Finance Committee of Parliament has the function, among others, of creating public awareness and involvement in the formulation of government budget, financial and economic policies including engaging the Minister responsible for finance in formulating and monitoring the budget.
“The Public Accounts Committee is charged with ensuring that expenditure is confined to the authority which governs it; the Parliamentary appropriation and treasury allocation.
“Most importantly it is to ensure that monies disbursed are legally available for and applicable to the service or purpose to which the funds are applied or charged.
“An especially important committee in the current state of disaster is on Governance Assurances which scrutinizes the assurances, promises, and undertakings given or made by Ministers of government.
“But these assurances must be reduced into law or must have been made in the National Assembly. In our view failure to reduce civil protection (in this case failure to reduce into legislation the measures announced by the President or by the Special Cabinet Committee) is to circumvent these oversight committees and to short-change the people of Malawi and risk substantial legal claims.”
The paper prepared by MLS was signed by chairperson Burton Chigo Mhango; his deputy Patrick Gray Mpaka; secretary Martha Etta Kaukonde; Chrispin Ngunde (treasurer); Wesley Mwafulirwa (Chapter Rep, North); Mwai Msungama (Chapter Rep, South); Madalitso Kausi (Chapter Rep, Centre); and executive members Robert Nthewa; Vitumbiko Gubuduza and Edwin Dalo Mtonga.