Lockdown measures in Malawi have been met with fierce public demonstrations and legal challenges, set against further constitutional orders to rerun the previous year’s election. What have been the outcomes of these legal judgements, and what do they mean for citizens’ livelihoods during an epidemic

Beloved Kaunga, Steve

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LSE Research Online

16/12/2020 How have Malawi's courts affected the country's epidemic response? | Africa at LSEhttps://blogs.lse.ac.uk/africaatlse/2020/11/13/how-have-malawis-courts-law-affected-epidemic-response/ 1/9Steve Beloved Kaunga November 13th, 2020How have Malawi’s courts affected the country’sepidemic response?0 comments | 2 sharesEstimated reading time: 5 minutesLockdown measures in Malawi have been met with  erce publicdemonstrations and legal challenges, set against furtherconstitutional orders to rerun the previous year’s election. What havebeen the outcomes of these legal judgements, and what do theymean for citizens’ livelihoods during an epidemic?This blog is part of the series Shifting Spaces, an emerging timeline ofCOVID-19 responses from Kenya, Malawi, Tanzania and Ugandafrom the LEAD research project at LSE’s Firoz Lalji Centre for Africa.Resistance to lockdown in the early days of theepidemic16/12/2020 How have Malawi's courts affected the country's epidemic response? | Africa at LSEhttps://blogs.lse.ac.uk/africaatlse/2020/11/13/how-have-malawis-courts-law-affected-epidemic-response/ 2/9In April 2020, former President of Malawi Peter Mutharika announced a 21-day nationwide lockdown to take effect until 9 May 2020 to prevent,contain and manage further spread of COVID-19. He made theannouncement with the then Minister of Health, Jappie Mhango, also thechairperson of the Presidential Task Force for the virus. At the time of theannouncement on 14 April, Malawi had registered 16 con rmed cases andtwo deaths, of which Blantyre city had eight cases and one death, followedby the capital city Lilongwe with six cases, as the second most infectedplace in the country.The measure provoked discontent among many social groups includingtraders, religious communities and civil society organisations.Demonstrations were seen throughout the month in the country’s majortownships, including in Blantyre, during which informal vendors heldplacards asserting that President Mutharika was taking action withoutconsidering the well-being of the people. The demonstrators demandedupkeep money from the government to survive the lockdown period.Most vendors in Blantyre market sit on the ground next to the pollutedMudi river, required to pay a daily municipal vending fee of 15,000Malawian Kwacha (USD 20). The Chairperson for vendors at Ndirandetownship in Blantyre, Chancy Widoni, told AFP news agency that theimposed lockdown would be devastating for these workers: ‘In the case ofus vendors who live from hand-to-mouth, it would cripple us … If we closethe market for even one day, then we will not be able to feed our families.’Following the outcry, the civil rights group Human Rights DefendersCoalition (HRDC) challenged the lockdown’s implementation, claiming itwould result in ‘starvation and collapse of their businesses’. The courtsgranted the injunction the same day to block the lockdown, which pendinga judicial review also marked the end of the demonstrations. Speaking toone of Malawi’s main media houses, Malawi News, after they successfullyobtained the injunction, the HRDC chairperson said the injunction was avictory for poor Malawians: ‘The decision on COVID-19 prevention should16/12/2020 How have Malawi's courts affected the country's epidemic response? | Africa at LSEhttps://blogs.lse.ac.uk/africaatlse/2020/11/13/how-have-malawis-courts-law-affected-epidemic-response/ 3/9be a collective decision and should not be politicized. More emphasisshould also be the protection of the rights of poor Malawians’.Regime change during an epidemicThese protests were set to a crucial political backdrop. The MalawiConstitutional Court, which annulled the 2019 elections earlier in 2020,ordered fresh presidential elections. Political parties were in electioneeringmode, and before President Mutharika declared COVID-19 a nationaldisaster, opposition parties were educating citizens door to door on virussymptoms and prevention measures to the dismay of the government.Spokesperson Mark Botoman said:‘What we are also saying is that yes, they can be partners that wouldwant to come in to help, but they need to go through the Ministry ofHealth because the Ministry of Health is the one spearheading allactivities around the COVID-19’.The political opposition at the time, United Transformation Movement(UTM), described the lockdown measures as a ploy by the rulingDemocratic Progressive Party (DPP) to delay presidential elections. Theparty’s secretary general, Patricia Kaliati, told local news agency ZodiakMalawi that the DPP were in an election ‘fever’. Meanwhile, governanceexpert Victor Chipofya said the move to lockdown the economy wouldcause more harm than good, claiming the government could be politicisingthe pandemic: ‘You can’t just lockdown a country without involving andconsulting others. We are not following the right track and we arepoliticizing the whole situation’.The elections were contested, with disagreements on the date of pollsbetween the parliamentary committee on elections and the AttorneyGeneral. Earlier, the Malawi Electoral Commission (MEC) had set 2 July2020 as the election date. However, this was changed after the SupremeCourt ruled that election dates should be set by parliament. In compliancewith the ruling, a parliamentary committee moved the date set by the MEC16/12/2020 How have Malawi's courts affected the country's epidemic response? | Africa at LSEhttps://blogs.lse.ac.uk/africaatlse/2020/11/13/how-have-malawis-courts-law-affected-epidemic-response/ 4/9to 23 June 2020. However, the Attorney General was of the view that thewhole of parliament, and not only a committee, should set the date.Then-President Peter Mutharika launched an attack on the judiciary, callingthe ruling a ‘coup d’etat’. He also accused Malawi Supreme and High Courtjudges of ‘participating in regime change’, and prioritising politics over thelives of Malawians by blocking a lockdown while allowing politicians tocampaign without regard for social distancing measures.‘[O]ur  ght against Coronavirus is being undermined by politics. AsPresident of this country, this is what I have to say. This country mustchoose between  ghting Coronavirus and going to an election. Wemust choose between life and death. As a country, we must make thatchoice.’The verdict on lockdowns in the absence of socialprotectionsThe much awaited elections  nally took place on 23 June 2020, fromwhich President Lazarus Chakwera became President on 28 June 2020after defeating Mutharika with 58.57% of votes, leading the newfoundTonse Alliance political coalition. During this historic change ofgovernment, the lockdown case remained pending at the ConstitutionalCourt.In early September 2020, three High Court at the Constitutional Courtdeclared unconstitutional the lockdown case in response to a challenge bythe HRDC. The court found the basis for announcing a lockdown to beunlawful, claiming the Public Health Act used to enforce the curfew doesnot cover a lockdown scenario.‘Consequences of that declaration have all the characteristics ofmeasures that exert extreme pressures on the rights and freedoms ofthe citizenry’.16/12/2020 How have Malawi's courts affected the country's epidemic response? | Africa at LSEhttps://blogs.lse.ac.uk/africaatlse/2020/11/13/how-have-malawis-courts-law-affected-epidemic-response/ 5/9The court found such rules unlawful as they do not provide for checks andbalances. It was the Court’s view that the absence of recourse to suchprocesses made the imposition of the lockdown con icting with theconstitutional order, and that the executive’s actions were ‘over-broad’ anddisplayed ‘over-concentration of power in one authority’.Of central concern in the judgement was the regulations’ effect onMalawians, who would struggle to survive under lockdown as they wouldlack access to basic necessities such as food and water if they could notleave their homes. The Court also emphasised the extent of poverty in thecountry, with 51% living below the national poverty line and 73% below theinternational poverty line of US$I.90 per day. The existing social assistanceprogrammes the government identi ed for reducing poverty andvulnerability were denounced as failures; social cash transfers, schoolmeals, microcredit and village savings and loans schemes provideinsu cient protection to a small number of poor and vulnerablehouseholds.Moreover, total spending on social protection for the elderly and children islow compared to spending on programmes for the working age population.The judges also observed that speci c interventions are lacking thatdirectly address the needs of Malawi’s children, besides school feedingprogrammes. They claimed that these interventions, which are neithertimely nor widespread across the country, make Malawi’s social protectionsystem fall signi cantly short of the social protection  oor (SPF)guarantees on healthcare and income security throughout the life cycle.The court was also asked to decide on:‘whether the Minister of Health has the power to implement subsidiarylegislation made under the Public Health Act after it has been Gazetted,without the subsidiary legislation  rst being laid before Parliament forits scrutiny in accordance with the relevant Standing Orders.’The judges stated that imposing a lockdown using legislation not yetapproved by parliament was a violation of Section 58(1) of the Malawi16/12/2020 How have Malawi's courts affected the country's epidemic response? | Africa at LSEhttps://blogs.lse.ac.uk/africaatlse/2020/11/13/how-have-malawis-courts-law-affected-epidemic-response/ 6/9Constitution, which stipulates that any ‘subsidiary legislations made’, hasto be ‘laid before Parliament in accordance with the relevant standingorders’. To prevent the future abuse and deliberate misinterpretation ofrules leading to a further lockdown, the judges ordered the MalawianParliament to pass a new law on public health to deal comprehensivelywith issues of pandemics. Such legislation would establish the need forconsideration over social security interventions for those Malawians in orat risk of poverty.Noting the public outcry when lockdown measures were announced, thejudges asserted the need for the government to enact deliberate socialprotection measures to protect vulnerable groups. Because publicresistance to COVID-19 prevention guidelines is high, deliberativemeasures must be put in place to shield vulnerable people, such as theelderly and those with chronic health conditions. In the absence of a newPublic Health Act, any government measures to lockdown the countryshould thus be taken with caution.Photo by Cytonn Photography on Unsplash.About the authorPosted In: COVID-19 | PoliticsSteve Beloved Kaunga is a social researcher working with ResearchInsight for Learning as a Monitoring, Evaluation, Learning andAccountability Associate. He holds a bachelors of arts degree inJournalism from the University of Malawi Polytechnic.Steve Beloved Kaunga

How have Malawi’s courts affected the country’s epidemic response?

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How have Malawi’s courts affected the country’s epidemic response?

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