Attorney General loses demos case

Malawi Supreme Court of Appeal has dismissed an application by the Attorney General (AG) to stop Human Rights Defenders Coalition (HRDC) from holding demonstrations.

In a ruling dated September 30 2019, Justice of Appeal Lovemore Chikopa was deciding on the AG’s bid for interim relief in form of an injunction restraining HRDC from holding or convening any demonstrations anywhere in Malawi seeking the resignation of the chairperson of Malawi Electoral Commission (MEC) Jane Ansah on the basis that “the same is sub judice and prejudicial to the conduct and determination of the case dealing with the 2019 presidential election and also that further demonstrations will lead to further damage of property”.

Said the appeal judge: “The application is dismissed.”

Chikopa said the most one can achieve, subject to judicial scrutiny, is a limitation or derogation of the right to demonstrate peacefully and unarmed under sections 44 and 45 of the Constitution.

He said: “Secondly, it is a fact that but for the violence and criminality surrounding the demonstrations, the Attorney General would not have found it necessary to file this suit. Or seek the interim relief being sought now.

On whether it was proper for organisers to hold demonstrations from September 18 to 23, the judge said the court would not interpret its own ruling and that the matter should “best be left to the individual consciences of the parties”.

AG Kalekeni Kaphale has since welcomed the judgement, but pointed out that his office did not ask the Supreme Court to stop HRDC from holding the anti-Ansah demonstration. He said he needed safeguard for peaceful demonstrations.

In an interview last evening, he said: “I have read the ruling and I have no problem with it. It hasn’t [dismissed]. Actually, it agrees with us on the need for peaceful demonstration.”

In August this year, the same court gave a 14-day moratorium on demonstrations to facilitate negotiations between HRDC, the AG and other stakeholders on how demonstrations can be held peacefully.

But after the expiry of the 14-days moratorium, the AG’s office through lawyer Loness Michongwe filed an application before Chikopa asking for order to restrain HRDC from convening further demonstrations until the coalition compensated those who have suffered damages during the previous demonstrations. The AG also argued that holding further demonstrations would lead to further damage of property.

But HRDC through its lawyer Khwima Mchizi argued that the way to resolve the issues of violence and criminality was not to stop the demonstrations, but to urge the police to strengthen their security.

In giving directions on demonstrations, the court said the duty to protect people and property is primarily the domain of the police. The judge said protesters, individually and collectively, have a duty to ensure that there is no violence during demonstrations.

On its part, Malawi Law Society (MLS) observed that Chikopa’s ruling strikes a balance for the exercise of the constitutional rights with security issues in mind.

In a written response, MLS honorary secretary Martha Kaukonde observed that the ruling shows that most of the guidance it gives and the principles it outlines are quite consistent with what MLS gave to Malawi Police and HRDC on 2nd August 2019.

In August this year, Minister of Homeland Security Nicholas Dausi asked Malawians who suffered losses during demonstrations to file claims for HRDC to compensate.

On Tuesday, Dausi refused to comment on the matter.