Judicial review on refusal to grant Chinese nationals into Malawi exposes further constitutional flaws

By Duncan Mlanjira

The 10 Chinese nationals that were denied entry into Malawi on March 18, 2020 as one of the measures to prevent the spread of the Coronavirus sought legal intervention through the Lilongwe High Court.

And in his ruling, Justice Kenyatta Nyirenda, said the Court will 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.

Pronounced in Chambers 3rd April 2020, Justice Nyirenda 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 as done by the President Peter Mutharika.

“Allow me to say this. All well-meaning lawyers, within and without

Malawi, will agree that the arrest and detention of the Claimants, [—Lin Xiaoxiao, Liu Zhigin, Wang Xia, Tian Hongze, Huang Xinwang, Zheng Zhouyou, Zheng Yourong, Jia Huaxing, Lin Shiling and Lin Tingrong—) leading to the present case, is a big blessing in disguise. 

“There can be no doubt that the analysis herein 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 Disaster Preparedness and Relief Act) will go a long way towards the development of our jurisprudence on the subject matter of declaration of state of disaster or is it declaration of state of emergency (pick your poison).

“Secondly, I believe enough has been said for one to safely conclude that the legislative regime governing Malawi’s response to disasters, regardless of the nature and the extent of the disasters, is not only archaic and obsolete but it is also in total shambles.”

The Judge says almost all, if not all, applicable Malawian laws are completely outdated and that needless to say, the Coronavirus epidemic has caught the authorities with their pants down as witnessed by panic stations everywhere.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

“The problem has to lie elsewhere. Let me also use the Disaster Preparedness and Relief Act to illustrate my point. 

“In 2014, the Government commissioned a review of the Disaster Preparedness and Relief Act, through the Department of Disaster Management Affairs. 

“With financial support of the United Nations Development Programme (UNDP), a draft ‘Disaster Risk Management Bill’ and a ‘National Disaster Risk Management Policy’ were drafted. 

“This is 2020 and the draft Bill has yet to be taken to Parliament. Perhaps these documents are not that important to be treated with urgency.”

Justice Nyirenda says the Disaster Preparedness and Relief Act does not have supporting regulations which has been in operation for 28 years but no regulations have been made, “not even one set of regulations”. 

“You do not have to wait until a disaster occurs for you to prepare the necessary regulations. That would not be disaster preparedness.

“As remarked in paragraph 8.22, other countries, such as Botswana, moved swiftly to promulgate the necessary regulations to deal with the problem of coronavirus. 

“These countries fully understand that the rule of law has to reign even during a disaster: see sections 44, 45 and 46 of the Constitution. 

“Malawi also can tackle these disasters without compromising the rule of law. Let us stop wasting our energies and time by being preoccupied with propagating false stories and seeking to score cheap political goals.”

He said the very thought of declaring a state of disaster without even bothering to tell Malawians in clear terms the law under which the declaration is made is taking Malawians for granted.

“The framers of our Constitution knew pretty well that Malawi would, at some points in time, face disasters. They, accordingly, put in place constitutional provisions for handling such disasters. 

“Let us give constitutionalism a chance to work in Malawi. Do not try to be clever and half.”

Nyirenda quotes a statement from Save the Children that says: “Corona virus knows no borders. It is a global pandemic and our shared humanity demands a global response. We must come together. Only a global response will stop the spread of the virus everywhere”.

“This crisis shows us how deeply we depend on each other,” Nyirenda says. “We will only come through this as a society with a huge collective effort.

“At a time of crisis no-one is an island, no-one is self-made…At times like this we have to recognise the value of each other and the strength of a society that cares for each other and cares for all.

“As matters now stand, unless the Government moves with speed to take necessary legislative measures, the possibility of exposure by the State to pay colossal sums of money in compensation for violating human rights as a result of imposing measures not anchored in law is very high. 

“My real worry relates to local authorities. It is common knowledge, by their own acknowledgement in public statements, that most if not all of them are struggling financially. 

“I wonder how they will manage to source funds to pay huge compensation packages in the event that courts find that the invasion upon peoples’ liberties and properties were not backed by law.

“The concept of rule of law requires, at a minimum, public institutions (not just the judiciary) that decide disputes impartially and non-arbitrarily according to pre-established legal principles. 

“However, emergencies and disasters may compromise legal order by generating political pressures to augment executive powers at the expense of the legislative and judicial institutions.”

Nyirenda says the Court is perfectly entitled to inquire into the legality of measures taken by the State in response to a state of emergency (or a state of disaster).

“A declaration of a state of emergency (or a state of disaster) does not give the state (read executive) carte blanche to exercise power indiscriminately. 

“The substantive and procedural limitations imposed by the law have to be observed. 

“For example, I fail to understand (perhaps it is because I have legislative drafting background) how it is possible to make a momentous decision relating to a declaration of national disaster without citing the law under which the declaration is being made. 

“Was this just a case of inadvertence or the authorities were trying to patronize Malawians? From where the Court stands, the latter appears to be the case rather than the former.

“Why does the Court say so? I have yet to hear an announcement of an appointment by the President of a person to a public office which

announcement does not include the law under which the appointment is being done. 

“However this was not done in the matter at hand. Why? Was it because citing the law would have placed the authorities between a hard place and a rock. 

“On one hand, there is the route of section 45 of the Constitution with its strict conditions, which conditions include obtaining approval from the Defence and Security Committee of the National Assembly. 

“On the other hand, resort could be had to the Disaster Preparedness and Relief Act which, as has already been observed is not only very much outdated (already raising the question of its compatibility with the Constitution) but its provisions are also not that useful apart from providing a forum where officials from different Ministries and about 5 or so representatives of non-governmental organization can discuss how to coordinate the implementation of measures. 

“As the matters stands, there is no evidence before the court regarding the law under which the declaration of state of disaster was made.

“It is also important to bear in mind that the onus lies on the State to give reasons for choosing one particular measure over other possible measures: see Silva et al v. Uruguay, Communication No. 34/1978, adopted 8 April 1981 wherein the UN Human Rights Committee that:

“A state’s failure to provide a reasoned justification for particular emergency measures render those measures unlawful on their face.”

“There is one more important thing to note. The Constitution has express provisions on the issue of state of emergence: see section 45 of the Constitution.

“As such, when authorities seek to deal with a state emergency, we expect them to go first to section 45 of the Constitution

“Let us not hear these arguments which seek to rely on provisions which are general in terms, e.g., sections 7. 8 or 88(2) of the Constitution.

By way of concluding, the Court will be the first in joining the State in the fight against the corona virus epidemic. 

“The Court will help in ensuring that all necessary measures put in place, be it by the legislature or the executive branches, are enforced. 

“However, it has to be made clear that the Court will not be part of a fight against the epidemic that is being waged outside the dictates of the law. 

“Equally true, the Court will not endorse measures that are unconstitutional and ultra vires. This country is founded on the rule of law: see sections 9, 12, 45(6) and 103 of the Constitution,” said Justice

Kenyatta Nyirenda in his ruling.