President Mutharika’s COVID-19 pronouncements were without legal authority

By Duncan Mlanjira

Malawi Law Society (MLS), while agreeing that the Malawi President is authorized to make a declaration of State of Disaster, which in and of itself is subsidiary legislation, however the law does not authorize him to make any regulations. 

“That is for the Minister responsible for disaster relief, in this case, Hon. Everton Hebert Chimulirenji [and] until the Minister responsible for Disaster Preparedness and Relief regularizes the pronouncements that have been made by the President and other Ministers into regulations, they remain pronouncements without legal authority, unless they have been made as regulations in other existing laws. 

“This does not provide the Government security or a defence to claims and legal challenges relating to violation of rights.”

MLS said this in its Legal Guidance Paper on Management of COVID-19 Disaster, disclosing that it proposed to Government on 2nd April 2020 to enact appropriate legislation for civil protection against COVID-19 — suggesting that the legislation could be on the template of the United Kingdom’s Coronavirus Act 2020 but suited to local circumstances. 

“The Malawi Law Society premised its proposal on the narrow but hugely emotive and all encompassing right to life. It is a broader and fundamental right based on which all other rights find their existence. 

“We maintain that proposal. However, while a people lives, provision of civil protection against COVID-19 intersects a wider range of rights.”

MLS then gave an example of the civil protection as announced by the President on the restrictions — on public gatherings (closure of all schools, colleges and universities) and also applying to all gatherings including weddings, funerals, church, congregations, rallies, government meetings. Add to this business and commerce. 

“This places restrictions not only on the Constitution’s fundamental principles, but also on its principles of national policy and on constitutionally guaranteed human rights.

“The Constitution requires such restrictions to be ‘prescribed by law…reasonable, recognized by international human rights standards and necessary in an open and democratic society…not negate the essential content of the right or freedom in question, and…be of general application’.”

MLS says that now that Malawi has arrived at the state of ‘Lockdown’, whose execution was stopped by the injunction in Judicial Review Cause No. 22 of 2020 at the High Court in Lilongwe, there would be even more restrictions, in diverse fields of life, to ensure effective civil protection. 

“And there, lies, the need for a comprehensive architecture of restrictions that the Malawi Law Society suggested the United Kingdom template of legislation. 

“The two political arms of Government responsible for initiating policies and legislation and implementing of laws’ on one hand and ‘for enactment of laws in deliberations reflecting the interests of all people of Malawi’ on the other, cannot avoid interaction and engagement in managing such a novel and mammoth crisis capable of affecting a cross-section of all Malawians.

“However, Malawi Government seems to have considered the route taken by South Africa, of issuing regulations in various areas of human interaction based on government departmental or ministerial jurisdiction. 

“Of course, the advantage with this option is that each Ministry, Department or Agency would easily identify the civil protections it can offer and these would be reduced into regulations. Most of the Ministers and their Principal Secretaries have apparently already been involved with the Special Cabinet Committee and so they should be already aware of the possible interventions that would provide effective civil protection.

“It is important to recognise the work that has already been undertaken. The Special Cabinet Committee announced, among other things, that ‘Government, through the Ministry of Health and Population convenes Health Cluster meetings on a weekly basis…meetings involve different Government Ministries and partners including NGOs…Government has developed a cost Preparedness Plan. 

“‘The total budget in this plan is about MK2.4 billion. Ministry is disseminating information to the general public about the outbreak and how to prevent or control it’. 

“These activities must and ought to be regularised through the framework, structures and institutions of Disaster Preparedness and Relief Committee of Malawi; Planning Sub-Committees; sub-Committees and established or to be established as Civil Protection Organisations at national, and when need arises at regional or area levels.

“Clear guidelines or criteria must be set for the contribution of volunteers who are not already part of a civil protection organisation or how they can join a civil protection organisation. 

“The statutory interlocutors in Malawi Law Society and Society of Medical Doctors ought to be given prominent space in the civil protection action plan,” 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.