Court finds against ‘back door emergency’ in Malawi

11 September 2020 · Carmel Rickard

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’.

Carmel Rickard

About the author

Recent articles by Carmel Rickard

‘No justification for the unjustifiable’: Lesotho’s ombud slams grand-scale torture, assault in Maseru prison

22 March 2024
Carmel Rickard

Lesotho’s national ombud, Tlotliso Angelina Polaki, has issued a scathing report on massive-scale torture and assaults that took place in Maseru’s central correctional institution during December 2023, leaving about 95% of the inmates of the prison injured, one dead and one who is now wheelchair-bound and will never walk again.

Major court decision on image rights benefits Ugandan soccer players

21 March 2024
Carmel Rickard

Members of Uganda’s national soccer team from the period around 2007/8 have just been awarded a payout against MTN Uganda by the commercial court. The telecom giant had a year-long contract with Proline, the players’ originating development soccer club, allowing it to use the players’ images for advertising. But MTN had continued to use their images even after that contract expired on the basis that it had a sponsorship agreement with Fufa, soccer’s governing body in Uganda. The players then challenged MTN in court, through Proline, and have now won a significant damages award. But the judgment exposed some serious flaws in the way that Fufa has approached the question of using the image rights of its senior players, and the court commented that this is a ‘case study’ for why Fufa needs to sort out its contractual arrangements with senior players.

Executive interference in Ugandan court decisions continues – this time by the justice minister

21 March 2024
Carmel Rickard

Uganda’s minister of justice, Norbert Mao, has taken a leaf straight from the book of the country’s president, Yoweri Museveni. This week, the minister wrote to the principal judge of the Ugandan high court, asking that the judge directly intervene in a matter that has been brought to his attention by an MP on behalf of a constituent. Mao asked for the ‘immediate administrative intervention’ in the matter by the principal judge. Earlier this year, Museveni wrote a similar letter to the chief justice of Uganda, also requesting intervention in a matter, and the CJ later indicated that this was not the first time it had happened.

Is rape by family members treated too lightly by the law?

19 March 2024
Carmel Rickard

The high court has sent the case of a Malawian teenager, charged with raping his 89-year-old grandmother, back to the magistrate’s court for a possible re-trial because the court had wrongly prosecuted a case of rape instead of incest. If convicted in a re-trial, however, Malawi’s incest law could see the accused sentenced to a mere five years. Malawi’s penal code provides for a significant difference between the sentence to be imposed when a man rapes a close family member, and in a case where the two are not related. When they are unrelated, the code provides that a rape offender ‘shall be liable to be punished with death or with imprisonment for life’ (However, Malawi has had what amounts to a moratorium on carrying out the death penalty since 1992.) By contrast, ‘incest by males’, is categorised in the code as a ‘felony’, and anyone convicted ‘shall be liable for imprisonment for five years’. There is an exception: if it is proved ‘that the female person is under the age of 16, the offender shall be liable to imprisonment for life’.

Prominent SA advocates lose battle over conviction in Namibian courts for working without a permit, misleading immigration officials

6 March 2024
Carmel Rickard

Two prominent South African advocates have just lost their last hope of squashing their convictions in the Namibian courts. Johannesburg advocates, Mike Hellens SC and Dawie Joubert SC, had been found guilty on two counts, first, working as legal practitioners without an employment permit, and second, giving false or misleading information to immigration officers when they entered the country in 2019. Though they had gone to Namibia to appear in court in a bail application, they told the immigration officials they were there for a ‘visit’ and for a ‘meeting’. Both appealed against their conviction but they had also asked for a judicial review of the decision. In the high court they lost their appeal but won on the review. The outcome in both matters were taken to the apex supreme court for a final word. In December 2023, they lost their appeal at the supreme court. What would that same court say when the state appealed against the review finding? The supreme court has now given its answer: it found the review, that had favoured Hellens and Joubert, was wrongly decided, and set it aside, awarding costs against the two advocates in both the high court and the supreme court.