Court finds against ‘back door emergency’ in Malawi

A constitutional court in Malawi has delivered an unequivocal condemnation of that country’s Covid-19 lockdown regulations. In its decision last week, the three judges found that the rules were unconstitutional as they were made in terms of a law that did not permit such rules to be made. They also criticised the government for imposing a lockdown without concern for the poor of Malawi who would not have access to food and other essentials if they could not leave their homes. The judge urged parliament to pass new legislation as soon as possible, that would allow the regulations needed in a national health emergency such as the current pandemic.

Read judgment

The first thing the court had to consider was whether to go ahead with the hearing and its judgment: this is because the government parties had changed the regulations that were complained about. However, the judges said it was essential that they should consider the matter both because the issues involved were important and also because the government had not followed the proper procedures to discontinue a matter before court.

They said the regulation that caused the ‘most consternation’ in the Covid-19 rules was that which provides for a lockdown during which the deployment of the army and the police is permitted ‘to enforce the lockdown’. The court found there was no provision in the Public Health Act that envisages a lockdown.

Another of the lockdown rules dealt with courts and the judiciary and stipulated how matters were to be heard and the directions that the Chief Justice may issue. ‘By no stretch of Section 31 can such a measure be justified,’ said the court. ‘The affront to the rule-making powers in subsidiary legislation posed by this particular rule is substantial.’ Subordinary legislation like the Covid-19 rules could not take away from the Chief Justice the power to make rules related to the courts. ‘The effrontery of the Covid-19 rules … is therefore significant.’

'Encroachment'

This might seem a ‘small encroachment’ on the doctrine of separation of powers, but no breach should ever be tolerated.

A similar step too far was taken in relation to the National Assembly, excluding it from the rightful role it should play. This breached the constitution which made clear that ‘only the legislature enacts laws’. On these and other grounds, the court found the rules void.

Did the regulations have to be placed before Parliament prior to implementation by the minister of health?

The judges noted that at the time the litigation started, the rules had still not been laid before Parliament, and found that without that crucial step the Covid-19 rules were not lawfully implemented.

Essential

Whatever the enabling law, ‘if any’, for the Covid-19 regulations, it was certainly not the Public Health Act. The judges said they also ‘found fault’ with the rules since they substantially affected a number of fundamental constitutional rights while the constitution did not allow subsidiary legislation to do so.

What about the nature of the rights that were infringed by the rules? They were designed to curtail ‘essential commercial activity, and the lifeline of citizens whose constitutional rights to life and dignity were therefore threatened.’

‘It is the considered view of this court that whilst the executive was well within its powers to prescribe mitigation and control measures in response to Covid-19 … the measures imposed went beyond limiting the rights in the … constitution as the impact of the restrictions was to actually negate the essential content of these rights.’

Several constitutional rights which may not be derogated from were hit by the lockdown. These included the right to life, to equality before the law, and the right to freedom of thought.

Personal rights

Since they had been limited without any state of emergency having been declared, the government had acted unconstitutionally. The incursion of personal rights and freedoms was made even more severe because the rules excluded ‘the possibility of challenge ‘by curtailing access to courts and thereby infringing on the rights of access to justice to challenge acts of illegality or illegal conduct generally.’

Even during a state of emergency, the constitution allowed for judicial challenge of the emergency itself or the measures imposed. ‘It was therefore an overly bold arrogation’ of the state’s emergency powers for the minister to ‘substantially restrict a significant range of constitutional rights and … impede access to justice.’

The powers given to the minister by the lockdown rules ‘were unlimited and expansive’, ‘over-broad’ and resulted in the ‘over-concentration of power in one authority’. ‘This act visited violence upon this country’s constitutional scheme.’

Back door

The rules made no provision for safeguarding the constitution and ‘it is our finding that a state of emergency was imposed through the back door’.

Many people in Malawi lived in poverty and it would be impossible for them to adhere to the government’s stay at home rules. People need to leave their homes ‘as a matter of survival.’ Not being able to travel would present a ‘real threat’ to their life and livelihoods, ‘largely in terms of access to food necessary for survival’.

Although the government provided some help for poor families it was ‘inconceivable’ that the aid, given to fewer than 200 000 households, would make any significant difference. In addition, the Women Lawyers Association, one of the litigants, ‘uniquely’ highlighted the state’s duty to promote and provide adequate health care for everyone, rather then reducing access under the lockdown rules.

Limits

In its final declarations, the judges set aside the Covid-19 rules, finding that they were unconstitutional since they departed from the purposes of the ‘parent Act’. They declared that the restriction on rights resulting from the lockdown provisions under the Codvid-19 rules exceeded the limits allowed under the constitution. ‘Consequently, a state of emergency was imposed through the back door’.

They also made a number of recommendations, perhaps the most significant part of the judgment.

There was an urgent need for parliament to enact legislation on public health that would deal with ‘the issue of pandemics’. The existing law ‘is very old and ill-equipped’ to deal with an event of the magnitude of Covid-19 pandemic. However, the court warned, ‘even public health emergencies’ always had to be handled ‘within the framework of the rule of law’ or there would be social chaos. The judges thus recommended a review of the law as soon as practicable.

Lawful precepts

Dealing with the imposition of a lockdown to quarantine people, the judges urged that such a measure follow ‘cogent research’ and adopt measures that took into account the socioeconomic needs of poor people. ‘If a lockdown … is to be imposed, the executive must follow constitutional and lawful precepts’, and the court listed a number of issues that should be properly considered before any lockdown was imposed.

As to the present pandemic, whatever steps the executive decided to take, ‘these measures cannot be lawfully and effectively made using the Public Health Act’.