The High Court in Lilongwe has sustained an order for Judicial Review in a case in which some civil society organiations (CSOs) sued Parliament and Leader of Government in the House over the Non-Governmental Organisations (NGO) Act (Amendment) Bill.
Judge Charles Mkandawire granted the CSOs—Centre for Human Rights and Rehabilitation (CHRR), Centre for the Development of People (Cedep) and Youth and Society (YAS)—an order stopping the tabling of the Bill following an ex-parte application.
Mkandawire last Wednesday summoned both parties to a hearing of an application on the part of the claimants for continuation of the order of leave for judicial review According to the ruling, dated December 18 2018 which we have seen, Judge Mkandawire said the CSOs have an arguable case which should go for full inquiry.
He ordered: “Having heard the arguments of both parties, I am satisfied that each case has to be looked at as it stands. Much as I do agree with the Attorney General that the only section that the claimants have cited is Section 43 of the Constitution which deals with administrative action, I am of the view that the court should have full arguments on merit from both sides in order to come up with an informed decision.
“At this stage, the claimants have raised an arguable case which should go for full inquiry. I, therefore, order that leave for judicial review is sustained. The substantive matter to come for hearing on the 8th of January 2019 at 8:30am in my Chambers.”
Lawyer for the CSOs Wesley Mwafulirwa has since hailed the ruling, saying: “We are delighted with the ruling by the court. We are now preparing for the main hearing as directed by the court.”
On his part, senior State advocate Neverson Chisiza said he needed to consult with the Attorney General before commenting on the matter.
In the case, the Attorney General (AG) argued that order for judicial review was wrongly granted on the basis that the application for the said permission did not raise serious questions to be tried.
The AG also argued that the application by the CSOs did not raise constitutional issues that were fit for judicial review, further submitting that the order was improperly granted.
The office of the AG also contended that that the proceeding of the case is premature, saying, even if the Bill is passed into law, the CSOs have an alternative remedy whereby they can challenge the law for being unconstitutional or inconsistent with the Constitution.
On the other hand, Mwafulirwa argued that that the Bill, unlike most bills that affect a particular sector of the society, was drafted without consultation with NGOs in Malawi, not even the claimants herein.
“That in fact the Claimants and other NGOs just heard of the Bill through the media. That their efforts to get hold of a copy of the Bill was very hard and when they did, they realised that the Bill itself is oppressive and meant to stifle the civic space within which NGOs operate.
“That, for example, the said proposed law proposed more powers in the way the minister deals with NGOs, creates an ‘Authority’ whose composition is suspicious as it would have appointees of the minister, the ‘Authority’ itself, according to the proposal, would have too much power whose terms are vague and would in the long run use these powers to intimidate and stifle the civic space within which NGOs operate,” argues Mwafulirwa.
The Bill was supposed to be tabled during the just-ended Parliament sitting, but failed due to the court battle.