Malawi Law Society deems Special Cabinet Committee on COVID-19 after March 20 lacks legal authority

By Duncan Mlanjira

Malawi Law Society (MLS) says it consider that any decision, initiative or action taken by the Special Cabinet Committee on COVID-19 after 20 March 2020 (technically from 3 April 2020) with regard to ‘Civil Protection’ on Coronavirus is without legal authority, or put differently, without any lawful excuse.

MLS, in its Legal Guidance Paper on Management of COVID-19 Disaster, contends that the Ministers in the special cabinet committee are not members of the Disaster Preparedness and Relief Committee of Malawi.

“And until an amendment is made to the law several ministries are not on the membership of the said Committee including the Ministries of: Industry and Trade; Education, Foreign Affairs, Defence, and Homeland Security,” says the paper.

“The only responsibility of the Special Cabinet Committee after 20 March 2020 is to advise the President with respect to Government policies on Coronavirus, or Covid-19 and such matters relating to it as the President may refer to the Special Cabinet Committee on COVID-19.”

MLS says on 10 March, before the declaration of a state of disaster by President Peter Mutharika, the Minister of Health Jappie Mhango announced that a Special Cabinet Committee on Coronavirus was set up effective March 7, whose mandate included:

• To receive updates on COVID-19 and ensure that the same is relayed to Malawians;

• To recommend proactive measures to prevent the occurrence and subsequent spread of corona virus in Malawi. At that moment Malawi had not have any registered case of COVID-19;

• To provide oversight for Cross-Government initiatives against the COVID- 19 threat; and

• To facilitate implementation of activities aimed at mitigating the impact of the disease on the social-economic development of the country.

The membership comprises: Jappie Mtuwa Mhango, MP, Minister of Health and Population (chairperson); Everton Hebert Chimulirenji, Minister of Disaster Management Affairs and Public Events; Joseph Mwanamvekha, MP, Minister of Finance, Economic Planning and Development; Mark Botomani, MP, Minister of Information, Civic Education, and Communications Technology; Ibrahim Salim Bagus, MP, Minister of Industry and Trade; Kondwani Nankhumwa, MP, Minister of Agriculture, Irrigation and Water Development; Dr. William Susuwele Banda, MP, Minister of Education, Science and Technology.

Others were Francis Kasaila, MP, Minister of Foreign Affairs and International Cooperation; Nicholas Dausi, MP, Minister of Homeland Security; Mary Thom Navicha, MP, Minister of Gender, Children, Disability and Social Welfare; Chipiliro Mpinganjira, MP, Deputy Minister of Defence.

The Chief Secretary to the Government and Principal Secretaries drawn from these Ministries are automatic members by virtue of providing necessary technical support to the Committee.

“Our view is that at law, upon the President’s declaration of a State of Disaster, this Committee ceased to have any mandate over decisions, initiatives or activities for disaster preparedness and relief. 

“By law, the declaration confers mandate on the Minister of Disaster Preparedness and Relief, the National Disaster Preparedness and Relief Committee of Malawi, and the Commissioner for Disaster Preparedness and Relief. 

“This is the only authority that the law has given the mandate to facilitate or manage a response during a State of Disaster,” says MLS.

It continues to say that the law defines such response as “Civil Protection” and that the mandate that was given to the Special Cabinet Committee wholly falls within the mandates of the Minister, the Committee and the Commissioner for Disaster Preparedness and Relief.

“In South Africa the law expressly places Cabinet members at the apex of disaster management in an Intergovernmental Committee which if it were in Malawi would have been above the Disaster Preparedness and Relief Committee of Malawi.

“Consequently, what should be of immediate concern is whether or how the funding for Coronavirus has been expended in compliance with section 173 of the Constitution; section 23 of the Public Finance Management Act; and sections 35, 36 and 38 of the Disaster Preparedness and Relief Act. 

“How is the K15 billion fund that was set up by the President has been managed? At law, after 20 March 2020 this fund became the National Disaster Preparedness and Relief Fund and ought to vest in Hon. Everton Hebert Chimulirenji, as Minister of Disaster Management Affairs and Public Events who is a mere member of the Special Cabinet Committee.

“The ancillary concern is that this fund may have been expended on volunteers like Civil Society Organisations without accountability mechanisms.”

In the preamble to the Disaster Management, MLS in the governance of Malawi, the Constitution is the supreme authority followed by an Act of Parliament and no person or institution is above the law. 

Pursuant to the Constitution, MLS says, Parliament enacted the Disaster Preparedness and Relief Act under which the President can declare a State of Disaster. 

“There is no other law that authorizes the President to do so. Once a state of disaster has been declared, the law mandates the Minister Responsible for Disaster Preparedness and Relief to manage such disaster. 

“It is not for the President or cabinet to manage a disaster. This is essentially for purposes of accountability both in terms of performance on the mandate as well as implementation and enforcement of the law. 

“The Minister responsible is the competent authority for the Disaster Preparedness and Relief Act; he or she is in charge for the performance of its mandate and enforcement. 

“The Supervisory Authorities are the National Disaster Preparedness and Relief Committee of Malawi in terms of strategic direction and the Commissioner for Disaster Preparedness and Relief as Controlling Officer (not the Principal Secretary).”

MLS refers to what is done in South Africa where at the apex of the management structure is the Intergovernmental Committee on Disaster Management which has members of the Cabinet. 

“That is not the case in Malawi and if a similar arrangement is desirable then Parliament ought to be requested to make the appropriate amendments to the law.”

MLS says the Disaster Preparedness and Relief Act defines civil protection as “any service provided or measure taken for the purpose of preparing for, guarding against or dealing with any actual or potential disaster.”

“This term has been used in this writeup in some cases without having to describe the actual service planned or provided.”

As a background, MLS says Malawi is not in a State of Emergency and therefore no Constitutional obligations or constitutionally guaranteed rights have been suspended or can be derogated. 

“On 20 March 2020, His Excellency the President Professor Arthur Peter Mutharika declared a State of Disaster. This declaration, authorized by law, is subsidiary legislation and therefore to have the effect of law must be published in the Gazette. 

“In announcing the declaration, the President also announced ‘new measures to come into force on Monday, March 23, which include a restriction of public gatherings of more than 100 people and closure of all schools, colleges and universities.

“Restrictions apply to all gatherings including weddings, funerals, church, congregations, rallies, government meetings; and that the national security apparatus has been ordered into action to enforce the restrictions.”

“The declaration only became lawful when it was subsequently gazetted” which the Ministry of Justice and Constitutional Affairs announced that it had been gazetted on 3 April 2020.

“Therefore, the measures announced were not law from 20 March 2020 until 3 April 2020,” says MLS in its paper 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.