The High Court in Blantyre yesterday reserved its ruling in a case the Malawi Revenue Authority (MRA) and two other companies are seeking an injunction to restrict Human Rights Defenders Coalition (HRDC) from conducting protests at airports and borders.
During an inter-partes hearing, lawyers for MRA alongside Airport Development Limited (ADL) and National Oil Company Limited (Nocma), both of whom had just joined the case, led by Lusungu Gondwe, argued why the court should grant them an injunction.
HRDC is continuing with its series of nationwide protests to force Malawi Electoral Commission (MEC) chairperson Justice Jane Ansah to resign for presiding over flawed May 21 Tripartite Elections which saw the commission declaring Peter Mutharika as the presidential winner.
According to the coalition, their next planned demonstrations will be conducted at the borders and airports across the country from Monday to Friday next week.
In their submissions yesterday, the claimants’ lawyers argued that the essence of their application for an injunction was not to stop the demonstrations but to limit them so that they are not conducted at airports and borders.
“Essentially, the people will still enjoy their constitutional right to demonstrate. Their right to demonstrate will not be taken away.
They can proceed to demonstrate elsewhere but not at the airports and borders.
“We are praying that the court should restrain them from even approaching these areas because we are looking at the trajectory of previous demonstrations and how violent they have turned out to be.
“Should the court allow the demonstrations to proceed then we would like it to make an order that the defendants should give guarantee that any harm that is going to occur they will personally be responsible for it,” argued Gonjetso Dikiya, one of the lawyers.
Another lawyer, Felix Tambulasi, who is also MRA director of legal services, said the authority had a national duty to collect revenue to support the national budget and should the demonstrations proceed, they would hinder its operations and suffer losses.
“The economy of Malawi is supported by domestic resources. It is a fact that previous demonstrations have drastically affected businesses and the consequences are huge,” he said, adding that by seeking an injunction, the commissioner general of MRA was protecting the offices and officers of the tax collecting body as per his powers.
But lead counsel for HRDC in the case, William Chiwaya, raised four points in their preliminary objections to the application for an injunction.
Among others, Chiwaya stated the claimants used wrong provisions such as Order 10 Rule 11 of the Criminal Procedure and Evidence Code in bringing their application before the court as such “their application is irregular”.
“The court lacks jurisdiction to entertain it because Order 10 rule 11 provides for freezing injunctions not the type of injunction they are seeking,” he said.
Chiwaya also argued the MRA commissioner general did not have capacity to stop demonstrations at airport or borders as the said places do not fall under his control.
The HRDC lawyer further said the claimants’ conduct amounted to abuse of court in that there is already a case commenced by the Attorney General (AG) at High Court Lilongwe Registry whose application was already denied by Justice Kenyatta Nyirenda.
He said as such granting them injunction would pre-empt the determination of their substantive matter since in the end, they would be asking the court to grant them the same injunction after full trial.
“What they could have done was to join that case and not bring another fresh case,” said Chiwaya in an interview later.
Besides the objections, the defence lawyers also responded on the merit and their main argument was that their relief amounts to banning of demonstrations which could not be allowed under the country’s Constitution.
“Even under the Police Act [Section 103] only three places are listed as protected to hold demonstrations thereat. These are State Houses, Parliament and Courts. No law prohibits people from demonstrating at borders or airports,” he said.
However, the fascinating part of the case is the position taken by another defendant Bright Kampaundi and the Joint Civil Society Platform for Good Governance who want the court to grant MRA, ADL and Nocma an injunction.
Lawyer for Kampaundi and the platform Goba Chipeta argued there are strong grounds for the court to grant an injunction restraining the demonstrations.
The platform also plans to hold a series of nationwide mass demonstrations against organisers of anti-Jane Ansah demonstrations.
In an interview after the court proceedings, lawyer for ADL Idriss Kassim said the company, as managers of the airports in Malawi and a commercial entity, felt obliged to join the case and be heard as the court’s determination would also be in their interest.
Ansah, a judge of the Malawi Supreme Court of Appeal, has previously dismissed calls for her to resign, saying she would only step down if the court hearing an elections petition case found her leadership to have failed to discharge its duties