BLANTYRE-(MaraviPost)—The Lilongwe High Court has yesterday dismissed an application by the Attorney General (AG) Kalekeni Kaphale to vacate the injunction, which was obtained by Human Rights Defenders Coalition (HRDC), restraining government from imposing a 21-day lockdown.
In a ruling on the application to discharge permission granted to HRDC, High Court Judge Kenyata Nyirenda pointed out that the Attorney General erred in the way his office filed the application.
Kenyata said the application was incomplete as it did not indicate the party or parties making the application.
“The Application to Discharge Permission is not complete: it does not state the party or parties making the application. Needless to say, it is very important that the application should expressly state the party making the application. It will be recalled that, in terms of Order 19, rule 23, it is not only the Attorney General who can be named as a defendant in judicial review proceedings.
“As exemplified by this case, there are six defendants and each one of these has a right to see how best to conduct his or its case. In the premises, it would foolhardy for the Court and, indeed the other parties, to assume that an application to discharge permission for judicial review filed by the Attorney Generals is an application made by all the defendants to a case,” said Kenyata.
“The take-home message is that an application must be worded in such a way that the identity of the party making the application can easily be known,” he added.
Kenyata, therefore, extended the validity of the injunction he granted the HRDC to stop government from effecting a national lockdown.
“I cannot agree more with the Claimants. I am satisfied that the balance of justice lies in favour of maintaining the status quo. In this regard, the validity of the Court Orders granted herein on 17th March 2020 and 24th April 2020 respectively shall continue until the determination of the substantive judicial review proceedings or until a further order of this Court,” he said.
The court also expressed concerns over the conduct of the Attorney General Chambers in handling the proceedings, an issue which was also raised by Counsel Mwafulirwa during inter-partes hearing on 23rd April where the Attorney General was not in attendance.
The hearing took place despite the government’s decision to withdraw its decision to challenge the injunction.
The government withdrew its application to challenge the injunction saying the Judiciary, which last had granted a seven-day injunction stopping implementation of a national lockdown to manage coronavirus (Covid- 19) pandemic, holds the key to the future of the precautionary measure.
“The office of the Attorney General is a creature of section 98 of the Constitution. As the principal legal advisor to the Government, the major tasks of the office of the Attorney General include (a) provision and coordination of legal advice to the Government, (b) ensuring legality of Government policies and acts, (c) promoting, protecting and upholding constitutionalism and the rule of law.
“Needless to say, this case raises a host of legal issues of constitutional importance. I, therefore, have great difficulties to understand why the office of the Attorney General would not want to be heard on the application one way or the other. As the holder of the office of the Attorney General is the head of the bar, the office of the Attorney General has to be exemplary in its handling of issues, particularly court proceedings,” said Kenyata.
On the wayforward Kenyata said that “a matter on the interpretation or application of the Constitution has arisen in these proceedings that requires that I submit the matter for the certification of the Honourable the Chief Justice under section 9 (3) of the Courts Act, and for the ensuing process thereunder.
“This Court will, therefore, proceed to refer the matter to the Honourable the Chief Justice for the certification under section 9(3) of the Courts Act, in accordance with the applicable procedure.”
Minister of Health Jappie Mhango announced on 14 April that the Malawi would be on lockdown for 21 days from the midnight of Saturday 18 April to midnight on Friday 8 May in an effort to control further spread of the deadly coronavirus.
Minister of Health Jappie Mhango announced on 14 April that the Malawi would be on lockdown for 21 days from the midnight of Saturday 18 April to midnight on Friday 8 May in an effort to control further spread of the deadly coronavirus.
HRDC and opposition parties faulted the DPP-led government for failing to announce any tangible measures to alleviate pain of millions of poor Malawians during the lockdown.
Meanwhile, Malawi has 36 cases of covid-19. From the 36 covid-19 confirmed cases, 23 (including 2 deaths) are from Lilongwe, 9 (including 1 death) from Blantyre, and Chikwawa, Nkhotakota, Karonga and Zomba have one case each.