The African Court on Human and Peoples’ Rights has issued a stay order, stopping government from collecting K21 million from rights activist Charles Kajoloweka in a case in which he sued President Peter Mutharika.
The activist wanted Mutharika to fire his then Cabinet minister George Chaponda for his connection with a controversial 2017 maize import deal. But after losing the case, the Supreme Court of Appeal slapped him with the fine in June 2019.
With the help of Pan African Lawyers Union, International Committee of Jurists and Mzuzu-based lawyer Wesley Mwafulirwa, Kajoloweka appealed the matter in Application Number 055/3019.
The order, dated March 27 2020, signed by court president Sylvain Ore, comes after an inter-partes hearing on the matter in which the government of Malawi argued that Kajoloweka had rushed to take the matter to the Arusha-based court.
Basically, apart from checking on government, the case also questions the decisions that the judiciary makes on certain matters, especially those relating to public litigation.
The order reads: “Stay the enforcement of the order of costs by the Supreme Court of Appeal against the Applicant, pending the determination of this Application on the merits.
“Report to the court within fifteen (15) days from the date of receipt of this order on the measures taken to implement it.”
Mwafulirwa said while the matter is still in it’s preliminary stage, it sets a good precedence on public litigation in Malawi.
“We felt the fine was not in order because it doesn’t get out anywhere that once a public litigant loses a case, then they are fined. Mind you, the Stay Order also wants the government of Malawi to actually write the court acknowledging that they will abide by it,” he said.
On his part, Attorney General (AG) Kalekeni Kaphale said he was yet to receive the order.
“What I can confirm is that I had put a team of lawyers to deal with the matter and they told me they were doing so. As regards the Stay Order, I haven’t seen it yet,” he said.
Last year, the Supreme Court also slapped rights lawyer Bright Theu with a K96 million bill for representing public interest litigants who included Kajoloweka in the stagnating Lilongwe-Salima Water project.
In August 2019, after meeting in Zimbabwe, Sadc lawyers wrote Chief Justice Andrew Nyirenda, arguing that award of punitive party-and-party costs against public interest litigants has become a trend in the Supreme Court of Malawi.
The petition reads: “This is a cause for concern as it does not only affect the right to access to justice, but it also generally shrinks the civic space within which civil society as well as human rights lawyers operates in. Court orders of this nature have a huge negative potential of shying away potential public interest litigants who would fear paying humongous punitive costs.”
Political and administrative studies lecturer at Chancellor College, Mustapha Hussein, in an interview, agreed with the Sadc lawyers’ sentiments, pointing out that the court’s decision could affect the work of civil society in the country.
“This might have a deterrent effect in the sense that civil society leaders find such restrictions in their activities because their intentions are to advance good governance,” he said.
Malawi is a signatory to several international instruments such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and African Charter on Human and People’s Rights that guarantees the right to access to justice.
The demand from government for Kajoloweka followed the Malawi Supreme Court of Appeal’s determination on February 13 2019, reversing a High Court order that sought to compel President Mutharika to fire Chaponda.