Malawi Law Society queries government on Covid-19 ‘illegal’ actions: Chimulirenji has mandate to lead 

Malawi Law Society (MLS) in its Legal Guidance Paper on Management of the Novel Global Coronavirus (Covid-19) has added its voice to criticism of government of politicising the management of the outbreak and that the response to Covid-19 should operate within the legal framework.

The law society has accused government on acting illegal on most of the decision it has made in the management of the outbreak.

Its guidance lends credence to calls by various stakeholders to demand inclusivity, transparency, accountability and respect for the rule of law in the fight against the virus pandemic.

MLS’s 40-paged guidance paper dated April 20 2020 seen by Nyasa Times  expresses concern on how funding for Covid-19 has been expended in compliance with Section 173 of the Constitution, Section 23 of the Public Finance Management Act, and sections 35, 36 and 38 of the Disaster Preparedness and Relief Act.

“How is the K15 billion fund that was set up by the President been managed? At law, after  March 20 2020 this fund became the National Disaster Preparedness and Relief Fund and out to vest in Hon. Everton Chimulirenji, as Minister of Disaster Management Affairs and Public Events who is a mere member of the Special Cabinet Committee,” the guidance paper says.

The law body observes that the country’s virus response has been unconstitutional because it falls foul of the available and applicable legal requirement.

Jointly signed by MLS president Burton Chidongondo Mhango, Vice-president Patrick Mpaka, honourary secretary Martha Kaukonde and regional chapter presidents, the Law Society letter said it remains “desirable and prescribed in the national interest that in managing the disaster at hand no other disaster should be created to manage the current crisis.”

The Law Society pointed out that Malawi is not in a State of Emergency and, therefore, no constitutionally guaranteed rights should be suspended or derogated.

MLS noted that President Peter Mutharika declared a State if Disaster on March 20 2020 and that by law, the declaration confers mandate on the Minister of Disaster Preparedness – the current one is Everton Chimulirenji – and Relief Committee of Malawi and the Commissioner for Disaster Preparedness and Relief as “the only authority that the law has given the mandate to facilitate or manage a response during a State of Disaster.”

The Law Society explains that the law defines such response as ‘Civil Protection’.

It says the mandate that President Mutharika gave to the Special Cabinet Committee  to manage Covid-19  “wholly falls within the mandates of the minister [Chimulirenji], the committee and the commissioner for Disaster Preparedness and Relief.”

Any decision, initiative or action taken by the Special Cabinet Committee on Covid-19 led by Minister of Health Jappie Mhango after March 20 has been lacking legal authority, the law body states.

It further states that the Special Cabinet Committee’s “only responsibility” after March 20 2020 is to advise the President with respect to government policies in Covid-19.

There are also concerns in the report that the  Caninet special committee  has been sidelining the Malawi Medical Council and the Society of Medical Doctors which are two institutions with legal mandate in the provision of civil protection in the declared disaster.

“To deny these two institutions any role in the provision of civil protection pursuant to the declaration of a state of disaster or to deny or ignore to consider their proposals through active consultation is to deny parliamentary oversight and to deny citizenship participation through Parliamentary representation in the response to Covid-19; and the provision of civil protection,”  reads the guidance paper.

Minister of Health  Mhango has  also disregarded the Constitutional dictates of separation of powers and trampled on rule of law as has been done in the rules in promulgated Corona Virus Rules, the law body observed.

MLS then asked the recommended an urgent overhaul and realignment of the crisis management structure to mitigate the breaches already identified.

“The new crisis management regime must build on what has already been done, regularise the serious irregularities identified, bring in the statutory interlocutors mainly the Medical Council of Malawi or the Society of Medical Doctors and the Malawi Law Society to play a professional role and for the political arms to settle political difference in legislative instruments,”  reads MLS letter

The Law Sociery said this  will allow the Government to act lawfully and proportionately while grappling with the current emergency and pushing the nation on the path to recovery from the pandemic.

The Attorney General Kalekeni Kaphale said he could not comment because he had not read the letter as he was not copied.

Malawi has so far recorded three deaths and 23 cases of the virus.

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