The Malawi Supreme Court of Appeal on Tuesday issued a 14-day moratorium against demonstrations being led by Human Rights Defenders Coalition (HRDC) who want to force Malawi Electoral Commission (MEC) chairperson Jane Ansah to resign.
Ironically, almost at the same time, the High Court in Lilongwe granted the HRDC an injunction allowing them to proceed with the protests, while also restraining the Malawi Police Service (MPS) from using force during the protests.
The decision by Justice Lovemore Chikopa of the Malawi Supreme Court of Appeal follows an appeal by Attorney General (AG) Kalekeni Kaphale against the HRDC after High Court Judge Kenyatta Nyirenda refused to grant the AG an injunction against the protests.
Reads the Malawi Supreme Court of Appeal order: “It is hereby ordered that within a maximum of 14 days from the date hereof, the respondent be and are hereby restrained from organising/convening demonstrations.
“During the said time, the parties hereto shall hold negotiations to determine a manner in which the respondents’ exercise of their rights in Section 38 of the Constitution can be [carried out] without undue incidents of violence and crime.
“The parties hereto by themselves, their servants and on the pain of being cited for contempt of court be and are hereby restrained from making statements that are or have the potential to prejudice the due determination of these proceedings.”
In Lilongwe, the HRDC had sought the court’s relief and applied to start judicial review against Minister of Information, Civic Education and Communications Technology Mark Botomani’s statement in which he ordered a stop to the protests, further warning that protesters will be met with force in the streets.
In the Civil Cause Number 75 of 2019, HRDC is the applicant, while Minister of Information, Minister of Homeland Security and Inspector General of Police are first, second and third respondents, respectively.
Justice Charles Mkandawire granted the HRDC an order to start judicial review proceedings and an interlocutory injunction against use of force by law enforcers during demonstrations.
Earlier on Tuesday, HRDC had shown defiance against government’s warning to unleash force on those that hold demonstrations, announcing they would proceed with the three-day demonstrations that were scheduled to start on Wednesday.
Government on Monday evening issued a statement, signed by Minister of Information, Civic Education and Communications Technology, ordering district and city councils not to grant HRDC permission to hold the demonstrations, warning law enforcers would stop those going on the streets with “the necessary force”.
Said the minister: “Going forward, no permission to hold demonstrations will be granted by the relevant authorities until such a time when it is possible for the conveners to organise peaceful demonstrations.
“Any person who defies the warning not to proceed with the planned demonstrations and/or not to participate in them will be stopped with necessary force by law enforcers.”
But responding to the minister in an interview, HRDC deputy chairperson Gift Trapence said government has no mandate to ban demonstrations.
He said: “Our position is very clear. The government cannot curtail citizens’ rights that are enshrined in our Constitution.
“Malawians will continue to defend the principles of democracy. Malawians will not tolerate government’s abuse of power.”
The nationwide protests were scheduled to take place in Zomba, Blantyre, Lilongwe, Mzuzu, Rumphi and Karonga from Wednesday up to Friday to force Ansah to resign for allegedly mismanaging the May 21 presidential election.
But the Malawi Supreme Court of Appeal moratorium issued on Tuesday evening means the demonstrations are suspended for at least 14 days.
In separate interviews with Nation Online on Tuesday, University of Malawi’s Chancellor College law professors Edge Kanyongolo and Garton Kamchedzera and private practice lawyer Justin Dzonzi all said demonstrations were a constitutional right which cannot be stopped by a minister.
Kamchedzera said of the statement: “It is an admission of failure as government to facilitate demonstrations that are peaceful. The attempt to make the demonstrations fail is a careless control that disregards the Constitution and people’s voices.
“The press statement either reflects an arrogant approach to people with a different voice or a thinking that those in government are too clever for the public they should lead, as the assumption is that people will believe the government that it has power to permit demonstrations.”
On his part, Kanyongolo said the Constitution is the supreme law and cannot be subordinated to “ministerial dictates”.
Dzonzi said the demonstrations are an inconvenience to government because they do not suit their political interests.
He said: “When unpacking the philosophy of human rights, the moment a person has been granted the right, it means another one has a duty. If the Constitution guarantees a right, then the government has the duty not to interfere with such a right. The jurisprudence is that you cannot seek permission to exercise a right, as doing so would mean the rights being reduced to a privilege.
“So to me it’s simple: the declaration is illegal, is unworthy, and people must just ignore it because for as long as we have this kind of thinking in government, such issues will keep propping up.”
Under Section 45 (3), the Constitution stresses that derogation shall only be permissible during a state of emergency with respect to freedom of expression, freedom of information, freedom of movement, freedom of assembly and rights.
When contacted for his comment on the matter on Tuesday, Kaphale refused to comment.
Queried why the government was threatening to use force against its citizens, Botomani in a telephone interview said government was concerned about the violence during protests.
In a 2002 case where Malawi Law Society, Episcopal Conference of Malawi and Malawi Council of Churches were applicants against the State and the President, Minister of Home Affairs, Inspector General of Police and Army Commander, then High Court Judge Edward Twea, now Justice of Appeal, ruled against blanket banning of demonstrations against former President Bakili Muluzi’s bid for a third term of office.
Said the judge: “It should be noted that the police have powers to regulate assemblies, meetings and processions…The Police Service would be advised to use these powers properly…”
Twea said matters of national security should not be used as an excuse for frustrating the will of the people expressed in their Constitution.
Recently, in the Case of AG vs Gift Trapence, Timothy Mtambo and Malawi Human Rights Defenders Coalition, High Court Judge Nyirenda also ruled in favour of the demonstrations.
Earlier, HRDC had planned to hold five-day demonstrations at the country’s borders and airports starting Monday this week.
However, last week Malawi Revenue Authority, Airport Development Limited and National Oil Company of Malawi obtained an injunction restraining HRDC from holding protests at their premises, mostly located at border posts and airports, citing security concerns.