The High Court of Malawi has sustained an injunction stopping implementation of a 21-day lockdown in the country and faulted Attorney General (AG) Kalekeni Kaphale’s handling of issues of national importance.
In his 26 – paged judgement, High Court judge Kenyatta Nyirenda observed that while Section 98 of the Constitution makes the AG the principal legal adviser to the government, the office has failed to demonstrate competence by not availing itself to be heard for a scheduled interpartes hearing.
The judge was apparently referring to Kaphale’s decision not to contest an injunction granted to Human Rights Defenders Coalition (HRDC) stopping implementation of the lockdown as a precautionary measure to coronavirus spread.
Said Nyirenda: “The office of the Attorney General has to be exemplary in its handling of issues, particularly court proceedings. It is disheartening to even imagine that a public office entrusted with public power at such an elevated level would opt not to file any court process one way or the other on such a weighty constitutional matter.
“With due respect, for the office of the Attorney General to sit on the fence on such an important topic involving imposition of a State of Disaster or State of Emergency, in my considered view, is a dereliction of duty. The office failed to live up to its constitutional responsibilities.”
The extension of the injunction means that the country cannot implement a lockdown.
In an interview on Tuesday, lawyer representing HRDC and others, Sullivan Kagundu, said they were happy that the court had sustained their injunction and cast doubt on whether government will make a move after withdrawing its defence.
He said: “As things stand have government does not powers now to implement a lockdown. I am sure they cannot go ahead with it.”
Minister of Information, Civic Education and Communications Technology Mark Botomani said he needed time to consult as he had just received a copy of the judgement.
Presidential press secretary Mgeme Kalilani, on the other hand, said President Peter Mutharika will wait to hear from the AG on the way forward.
He said: “The coronavirus does not abide by court orders. We all know that the court has decided and Malawians have heard, as to the legal aspects of the judgement, the President shall hear from the Attorney General.”
Kaphale is also on record as having said government will not challenge the injunction and warned that if Covid-19 worsens, the Judiciary and parties to the case would be held responsible.
The lockdown was scheduled to roll-out at midnight April 18. But the announcement sparked spontaneous protests nationwide before HRDC went to court for the order.