The High Court of Malawi sitting as the Constitutional Court has declared as unconstitutional the abortive lockdown former president Peter Mutharika’s administration imposed as a measure to curb the spread of the coronavirus.
Mutharika’s administration imposed the national lockdown from midnight April 18 to midnight May 9 with a possibility of extension, but the decision was not implemented following spontaneous protests and a court order stopping the same.
In the judgement delivered in Lilongwe yesterday, the three-judge panel of Ken Manda, Fiona Mwale and Dorothy Degabrielle said the Covid-19 rules under which the lockdown was proposed flouted the Constitution, especially sections 44, 45, 46 and 58.
Reads the judgement: “If a lockdown as a measure is to be imposed, the Executive must follow constitutional and lawful steps within the domain of government’s obligations for ensuring the realisation of economic, social and cultural rights under the Constitution and international law.”
The judges said Parliament should enact a new law on public health that will comprehensively deal with issues of pandemics because the current Health Act was old and ill-equipped to deal with pandemics of Covid-19 magnitude.
The court has since recommended that in future, where there is need to impose a lockdown as a measure to quarantine the public or a certain section, such a measure should be preceded by well-argued research on numbers of people to be affected.
The court also said there was need to adopt practical and realistic social security measures to cushion socioeconomic needs of the poor.
Reads the judgement: “The impact of the lockdown to the rights of citizens requires government to go beyond what is ordinary in imposing any conditions of this nature and wider consultations with the Malawi Law Society, the Society of Medical Doctors, the ministry responsible for vulnerable persons such as women, children, the elderly and the disabled.”
In May, Chief Justice Andrew Nyirenda certified the case as a constitutional matter after some individuals and civil society organisations sought an injunction to stop government from effecting the lockdown.
The Society of Medical Doctors also told the High Court of Malawi that coronavirus prevention measures such as lockdown are not appropriate because they could impinge on people’s livelihood, especially access to food and healthcare.
Reacting to the judgement, Human Rights Defenders Coalition (HRDC) national chairperson Gift Trapence, whose organisation was among parties to the case, described the decision as “a win for the rule of law”.
Besides HRDC, other petitioners were Church and Society Programme of the Livingstonia Synod of CCAP, Pastor David Mbewe and Esther Kathumba.
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