AG warns against Covid measures

Attorney General (AG) Chikosa Silungwe has advised the Presidential Task Force on Covid-19 not to implement the newly-issued restrictions aimed at containing the further spread of coronavirus as there is a legitimate injunction still in place.

In a letter to task force co-chairperson Dr John Phuka dated July 13 2020, Silungwe has further advised him to reverse the decision by issuing a press release.

Reads the letter in part: “Take note that enforcement of the rules has been suspended by High Court in the Case of The State (on Application of Esther Cecilia Kathumba and others) Vs. The President of Malawi, Minister of Health, Inspector General of the Malawi Police Service, Commander of Malawi Defence Force, Attorney General, Judicial Review Cause Number 22 of 2020.

“This means that the suspension imposed by the court is still in force. Government, cannot, therefore, enforce or implement the rules until the suspension is lifted.”

Some concerned citizens, including bottle store owners and Human Rights Defenders Coalition (HRDC), obtained an injunction against the ousted DPP administration.

The applicants challenged restrictions the immediate past president Peter Mutharika issued in the face of the global Covid-19 pandemic.

In the letter to Phuka, the AG said his office is handling the matter with utmost urgency considering the increase in the number of Covid-19 cases.

In an interview on Tuesday, Silungwe said advice from public health experts on preventing further spread of the pandemic is not under the order of an injunction; hence he urged people to continue observing the preventive measures as they are “common sense”.

He said: “The clarification to the Presidential Task Force was merely to ensure that the Executive branch of government is complying with the court order. An order of injunction is a Court Order and the Executive branch cannot be seen to be disregarding it. Let’s pend implementation of these measures until the litigation process is finalised.

“The Covid-19 pandemic is here, so let’s observe measures that will protect us from the virus. My office is at the moment working very hard to find a suitable legal framework that will enable the government where it deems it necessary to implement stricter measures to combat Covid 19. A lot of thought must go into these things.”

Asked for his reaction to the AG’s advice, Phuka said he will be issuing a statement later on the matter.

In Judicial Review Cause Number 22 of 2020, which was later certified as Constitutional Reference Number 1 of 2020, some individuals and HRDC are challenging the legality of the regulations from which the measures were made.

One of the lawyers for applicants, Wesley Mwafulirwa, said in an interview on Tuesday his clients are challenging, among others, how the rules were made.

He said: “The major concern is that the regulations on which the measures were made are illegal. You can have measures, but they have to be based on the law and one of the terms in the injunction is suspension of those rules. So, these measures are based on rules that have been suspended and are being challenged.”

According to court documents, the applicants contend that the Covid-19 rules cannot be implemented without parliamentary oversight as required by Section 58 of the Constitution.

They argue: “Can a mere minister lawfully suspend fundamental constitutional rights through the making of subsidiary rules and lawfully implement the rules before Parliament has a chance to review the rules?”

On April 30, Chief Justice Andrew Nyirenda certified the issue as a constitutional matter, which is now before three judges as Constitutional Reference Number 1 of 2020.

Making a direction on the matter, the High Court in Lilongwe invited Malawi Law Society (MLS), Society of Medical Doctors (SMD) and Women Lawyers Association to make their submissions by July 18, which is this Saturday, before the court makes its determination on the matter within 10 days.

But MLS honorary secretary Martha Kaukonde said in an interview on Tuesday the lawyers’ body needed to see all the documents on the court file before it commits to join. 

She said: “We have to conduct legal research to determine if there are still issues not addressed by the parties that MLS would address as amicus [friends of court].”  

SDM president Dr Victor Mithi in a separate interview said it was the first time for a court to seek their opinion but stressed the matter was of public good.

He said: “We have been given a platform where we can advise the court from the professional point of view so that the judges make an informed decision. We know that Covid-19 is mostly a medical related issue, that most of the issues have had some legal implications on how some of the measures for its prevention can be applied.

“So, given that context we believe that what the court has done to extend the invitation to us is very important because we will provide proper insight. For us, we will just provide a written opinion, a written submission.”

Meanwhile, Dr Titus Divala, an infectious disease expert, has said Covid-19 has now reached the highest stage of transmission, urging the citizenry to practice all safety measures.

In an update on Friday, Phuka announced more measures for the prevention, containment and management of the pandemic.

He said the measures, which include a ban on meetings, street markets, weddings, and restrictions on bars and other entertainment places, capacity in passenger vehicles but also adherence to all Covid-19 measures in religious gatherings and funerals, will be enforced by local councils and relevant law enforcement agencies.

Cumulatively, by Monday, Malawi had recorded 2430 cases including 39 deaths. Of these cases, 811 are imported infections and 1619 are locally transmitted.