Attorney General Kalekeni Kaphale’s explanation on why Government has suddenly shelved its initial plan to challenge the injunction the High Court in Lilongwe granted to the Human Rights Defenders Coalition (HRDC) last week does not add up. Why the sudden change of heart?
When the High Court in Lilongwe granted an injunction to HRDC stopping government from implementing a 21-day lockdown which was scheduled to start on April 18, Kaphale immediately and vehemently indicated his office would challenge the injunction. The national lockdown was one of the means of fighting the spread of Covid-19 pandemic which as of Thursday had claimed the lives of three people and infected 33.
On April 21 Kaphale’s office challenged the injunction in the High Court after principal State advocate Neverson Chisiza filed skeleton argument to the court. And an inter partes hearing was set to be held yesterday.
But on April 22, Kaphale informed The Nation that Government had shelved its initial plan to challenge the injunction. What happened?
Kaphale’s explanation is less than convincing. The Government chief legal advisor said “…the Executive trusts that the Judiciary will do the right thing based on the prevailing situation.
“It is a matter really where you don’t want to waste precious time being in court arguing whatever. We believe the Judiciary will do the right thing in the circumstances we are in.”
Kaphale’s statement could mean two or more things. One is that he strongly believes the learned judge erred in law when he granted the injunction. He believes after HRDC presents its arguments in court, the judge will change his mind and overturn his earlier judgement because of the unfolding developments as more people are testing positive for the virus.
Apart from being an indictment on the Judiciary, the statement is an indirect reference to the increased number of people who have tested positive for Covid-19—from 23 on Monday to 33 as of Thursday.
Indirectly, he is also saying ‘look the injunction is doing the country more harm than good as can be seen from the sharp rise in the number of people who have contracted the virus and that this could have been avoided had the lockdown been effected’. Looked at in that sense, the withdrawal is meant to absolve the Executive of any blame should the pandemic continue to spread exponentially because the lockdown was blocked.
From my little knowledge of the law, withdrawing the challenge means Kaphale or Government have no problem with the earlier decision. How can one want the court to grant you what you are not desirous to be given? A judicial consideration has to be prayed for in order for the court to grant it. You have to move the court to grant you what you desire.
The other reason is that Kaphale and government know the challenge has no chance of succeeding because the lockdown was illegally enforced. And so, the withdrawal is tactical as it will save him and government further embarrassment.
The withdrawal could also simply mean that Kaphale and government are sulking, especially after losing almost all the cases in the presidential elections nullification case.
Another reason could be that government wants to buy time so that it can adequately put in place measures to cushion the most vulnerable from the impact of the pandemic during the lockdown period. This has been a big debate countrywide and a low point for the government considering that a majority of Malawians survive hand-to-mouth. Government’s announcement for a lockdown was met with spontaneous protests across the country including in the Southern Region which usually sides with government on political issues.
To crown it all, Kaphale gets it all wrong when he says while food is important, it can only be taken by those in good health; hence the need to save lives first. The question is: which life is government trying to save when shutting people—who have no food—in their homes will starve them to death anyway?
Whatever the outcome of the hearing yesterday, Government as the duty-bearer of last resort cannot runaway from the consequences of the shenanigans on Covid-19. It controls the pulse strings and has K150 billiion in the kitty just for Covid-19. With this money it can do anything to stop the spread of the pandemic.