Judge Ntaba concurs with Judge Nyirenda on need to review the law on state of disaster

 

By Duncan Mlanjira

Zomba High Court Judge, Justice Zione Ntaba, has denied Chancellor College law students’ application for judicial review that they were demanding for an order to quash State President Peter Mutharika’s directives issued on March 20, 2020 that led to the decision to close down Chancellor College.

The leave for judicial review from the four students, among others issues, cited out that  Section 32 of the Disaster Preparedness and Relief Act (‘DPRA’), Cap. 33:05 of the Laws of Malawi “does not give the President power to issue directives and not to even take measures to address the disaster other than making a declaration of the state of disaster”.

The students were also saying the directive issued by the State President is unconstitutional to the extent that it is derogating their right to education without following derogation procedures under section 45 of the Constitution.

And it also said the President does not have the authority under any law to direct Council of the University of Malawi to close down Chancellor College of the University of Malawi.

And also that a declaration that section 32 of the DPRA is unconstitutional to the extent that it empowers the President, minister and civil protection officers to derogate and limit rights and freedoms in contravention of section 45 of the Constitution.

In denying the application for leave for the judicial review, Justice Ntaba said her Court is of the same view with that made by Justice Kenyatta Nyirenda during the case that the Chinese nationals brought to Lilongwe High Court for being denied entry into Malawi by the Immigration Department.

Justice Nyirenda was the view that all other arms of Government, including the Judiciary following the declaration of the state of disaster should with speed undertake the next necessary steps under the various Acts of Parliament to, amongst several suggestions, having the Executive including local authorities to make a detailed legislative agenda.

These are in terms of the various laws like the DRPA, Public Health Act (PHA) and the Education Act to develop necessary principal and subsidiary legislation which is consistent with the Constitution to safeguard people’s lives.

The Court also asks the 2nd Respondent (Council of the University of Malawi) to ensure that they find alternative means of continuing the Applicants as well as other students education as the right to education requires access as well as availability, acceptability and adaptability. 

“Such measures to be reported by 30th April, 2020 in terms of roll out otherwise they shall be considered to be in contempt of court,” Justice Ntaba ruled.

“The Legislature to undertake the necessary steps to ensure that the proposed principal and subsidiary legislation is vetted and promulgated according to Malawian law so that they avoid further legal challenges especially in this time of COVID-19 when all measures should be geared at safeguarding lives. 

“Such pieces of legislation can look at social security for those with various vulnerabilities to the disease, types of lockdowns which can be ordered to mention a few.

“This Court is therefore realizing there will be need for Malawi at some point to have a comprehensive discussion on the important matter of the law on state of disasters vis-a-vis states of emergency.

“The Court hereby makes no order as to costs.”

In her final words, Ntaba said the rule of law which is a tenet of the Malawian Constitutional law and indeed Malawian constitutional democracy, should always be upheld and should not be compromised merely in the name of public safety or preventing death.

“…In this case, this is our new reality and the law envisaged such a scenario. As a Court, all we can hope is that as the laws are being implemented, we continue to maintain the legality because numerous reports from around the world are showing how easy it is to turn to illegality in the name of safeguarding lives. 

“Courts remain vigilant to promote and protect the rule of law. We also hope that we shall respond to the public health emergency (which is seeing our number of COVID-19 cases seemingly rising) in a manner that will build resilience but also innovate for delivery of justice to those who need it at this time. 

“Human rights especially the right to life remains a priority for now which at this time Courts will continue to ensure is upheld by all involved  — public or private. 

“It should be noted that in no way is this Court ranking the rights but in these circumstances, the right to life should be treated as a trump over other rights.”

In his ruling in Chambers on 3rd April 2020 in the case for the Chinese nationals, Justice Kenyatta Nyirenda, did not endorse measures that are unconstitutional and ultra vires, saying this country is founded on the rule of law and citing sections 9, 12, 45(6) and 103 of the Constitution of the Republic of Malawi.

He highlighted several Constitutional flaws as regards the declaration of emergency (the term used in section 45 of the Constitution) and declaration of state of disaster by President Mutharika.

He had, however, said the detention of the Chinese nationals was a a big blessing in disguise, saying the analysis of the law governing declaration of state of emergency (the term used in section 45 of the Constitution) and declaration of state of disaster (the term used in the DPRA) will go a long way towards the development of jurisprudence on the subject matter of declaration of state of disaster or is it declaration of state of emergency.

He also tore apart  the legislative regime governing Malawi’s response to disasters, regardless of the nature and the extent of the disasters, saying it “is not only archaic and obsolete but it is also in total shambles”.

The Judge said almost all, if not all, applicable Malawian laws are completely outdated and that needless to say, the Coronavirus epidemic has caught the authorities with their pants down as witnessed by panic stations everywhere. 

“How the authorities expect to effectively combat the epidemic in 2020 with laws enacted in 1948 (Public Health Act), 1964 (Immigration Act) and 1991 (Disaster Preparedness and Relief Act) boggles my mind. 

“This is not the time to start questioning patriotism of fellow Malawians but to collectively pull up our socks so that we can fully apply our minds and energy to the preparation of the necessary legislation.

“Then there is the issue of political will. Apart from the outdated laws referred to in paragraph 12.3, this Ruling also mentions, you will recall, the ‘Law Commission Report on the Technical Review of the Constitution’. 

“This report was completed in 1998 and it contains a number of very important recommendations, including two draft Constitutional Amendment Bills [but] more than 22 years have passed without the recommendations, most of them if not all, seeing the light of day.”

Nyirenda further says the problem cannot be that of lack of time by Cabinet to consider the draft Bills (22 years is almost an eternity) or that of inadequate technical expertise to finalise the preparation of the draft Bills for presentation to Parliament.