Experts caution on ‘protected areas’ gazette laws against rights in Malawi Constitution

Legal and governance commentators have said details disclosed by  Minister of Homeland Security Nicholas Dausi of the gazette the government secured, over the past three days, which have declared the airports and border posts out of bounds for the demonstrators raises more questions than answers as demonstrations are a constitutional right.

Speaking at a news conference he jointly held with Minister of Information, Communication and Technology Mark Bottoman and Civic Education, Dausi said the supplementary laws have declared airports, land boarders, Capital Hill, prisons, National Oil Company of Malawi strategic fuel reserves and the Reserve Bank of Malawi as protected areas, hence no one is allowed to hold demonstrations at these places, as doing so is treasonous.

He was quoting from an extraordinary Malawi Gazette Supplement, dated 22 August, 2019 containing rules and regulations on Government notice numbers 59,60,61,62,63,64 and 65 which the Dausi  and Bottoman read out to reporters.

According to the two ministers, the gazette gives power to the minister of Homeland Security to exercise his powers as provided for in the Preservation of Public Security Act section 3 to make the regulations.

Dausi said: “Our boarders and airports are among protected places where demonstrations are not allowed and cannot be allowed. Therefore, any attempt to shut down our boarders and airports will be regarded a treasonous attack on the state of Malawi, its sovereignty and territorial integrity.”

But renowned lawyer Raphael Kasambara taking to Facebook argued that the promulgation of regulations raises more questions than answers for academicians and human rights practitioners.

“A quick perusal of them show that there are few problematic areas. First, one might argue that subsidiary legislation cannot be used to limit constitutional rights. See section 58(2) of the Constitution as applied in State v RBM and Minister of Finance ex parte Golden Forex Bureau. ( I appeared as lead counsel in that matter),” pointed out LKasambara, a former Attorney General who also served as  minister of Justice and Constitutional Affairs.

“Second one might also argue the said Subsidiary legislation has not been laid before Parliament.  In parenthesis I am aware of two opposing school of thoughts of Twea on one side and Manyungwa and Mrs Kamanga on the other side. Supreme Court of Appeals is yet to weigh in on this matter.

“Third the regulations as drafted might said to be  too wide to be accommodated under the general limitation of rights clause under section 44 of the Constitution.  Fourthly it is arguable that the parent Act itself, Preservation of Public Security Act is not constitutional. If that proposition is correct it then follows that all subsidiary legislation under it are null and void.”

Human Rights Defenders Coalition’s (HRDC) has proposed a plan for a five-day demonstrations targeting the country’s borders and airports.

HRDC vice chairperson Gift Trapence has said  the new regulations have been done in dark hours behind the back of parliament, saying the falls out when weighed against the right the Constitution gives to citizens demonstrating peacefully.

According to the new regulations, no one is to hold a demonstration or assemble in protected place, saying that such a person who contravenes the provisions commits an offence.