Judge Ntaba admonish Chanco law students, rejects judicial review on college closure

In denying Chancellor College law students’ application for judicial review asking for the reopening of the institution that was closed on orders from t President Peter Mutharika, Zomba-based  High Court judge Zione Ntaba  admonished the students that what they were asking could have compromised immune systems of those who can easily catch the coronavirus.

The four law students — Steven Mponda, Young Soko, Lonjezo Noel Banda and Precious Kalulu — were demanding for an order to quash President Mutharika’s directives issued on March 20, 2020 that led to Council of the University of Malawi (2nd Repondent) to close down the College.

The leave for judicial review from the four students, among others issues, cited out that  Section 32 of the Disaster Preparedness and Relief Act (‘DPRA’), Cap. 33:05 of the Laws of Malawi “does not give the President power to issue directives and not to even take measures to address the disaster other than making a declaration of the state of disaster”.

The students were also saying the directive issued by the State President is unconstitutional to the extent that it is derogating their right to education without following derogation procedures under section 45 of the Constitution.

And it also said the President does not have the authority under any law to direct Council of the University of Malawi to close down Chancellor College and also that a declaration that section 32 of the DPRA is unconstitutional to the extent that it empowers the President, minister and civil protection officers to derogate and limit rights and freedoms in contravention of section 45 of the Constitution.

But Ntaba denied the judicial review and turning to the four students during her ruling, she it was commendable that they are taking their future seriously, including the right to ensure that their rights are protected.

“However, it should be stated and underscored that it is a future that you are working to protect, the question is what future will it be if you are not there to see it or others in your college are not there to see it?

“It is, therefore, imperative that when we look at ourselves, we also do not forget others in the same boat as you who may have compromised immune systems of those who can easily catch COVID-19 and furthermore, the surrounding communities which Chancellor College has.

“The spirit of ‘umunthu’ — although not a legal one — has a major bearing on human rights especially where as Malawians and notably Africans as per the African Charter on Human and Peoples Rights, that we have underscored that human rights must be enjoyed with responsibilities.

“It is my hope that you all stay safe and healthy in your homes so that you appear in years to come as lawyers before my bench.”

The Judge also highlighted in her ruling why she believed that their decision could “have compromised immune systems who can easily catch COVID-19 and the surrounding communities which Chancellor College has”, saying Zomba has the highest number of institutions hosting large numbers of people, all within 10 to 20 km from Chancellor College.

She gave examples of two army barracks, police training school, Zomba Central Hospital, Zomba Maximum Prison, Zomba Mental Hospital, Zomba Market, secondary schools like Mulunguzi, St Mary’s, Masongola, Police and Zomba Catholic as well as numerous primary schools.

“The potential risk of spread if not considered would be catastrophic,” she said. “Thirdly, the Court noted that the declaration was recognized by international human rights standards as neighbouring countries like Zambia, Mozambique and Tanzania had similarly done the same.

“Lastly, the limitation was necessary in a democratic and open society which was balancing the right to life versus the right to education.”

She also said having reviewed the state of disaster declaration, the Court noted that it was prescribed by law — that is the DRPA.

“Furthermore, this Court does not find it unreasonable that where the world has declared a pandemic and cases continue to rise, a school shall consider closure so as to safeguard the lives of the students it caters for.“

To put into context the issues in the application, Justice Ntaba cited a South African case of Moela et al v Habib et al, Case No. 9215 of 2020 (Gauteng HC) where the applicants who were students at the University of the Witwatersrand residing at University residences.

The Senior Executive Team (‘SET’) of the University, in conjunction with the Chairman of the University’s Council, issued a directive on 16 March 2020 that all residences were to be closed students must vacate their residences within 72 hours.

The applicants brought an application seeking relief that Adam Habibt, the Vice-Chancellor of the University of the Witwatersrand and Jerome September, the Dean of Students for the University of the Witwatersrand must satisfy themselves that the students have been tested for SARS COV-19 and are safe to go home.

Secondly that the respondents must ‘extend’ the evacuation notice ‘until a mechanism is devised to limit the rapid spread of the virus’.

The applicants contended that it is universally accepted that SARS COV-19 is a life threatening disease if it remains undetected and untreated.

They alleged that the University’s directive was a ‘negligent and reckless response to this pandemic’. They further submitted that such action poses a serious threat to life which offends against their justiciable rights protected under s 11 and s 27 of the Constitution of the Republic of South Africa, 1996 which deal with the right to life and the right to access to health care.

It was their contention that their right to health care compels the University to assume responsibility of having students tested for SARS COV19.

They also argued that they have other rights protected by the Constitution and that there is a reasonable apprehension that those rights would be violated, as the University is not taking the correct precautionary measures.

However, during the hearing, the applicants abandoned the above reliefs but under alternative prayed that they should be allowed to remain in their residences and self-isolate.

Judge Weiner ruled that the majority of people in the South Africa (and globally) were in the same situation as the applicants. He further stated that the suggestions by the applicants that the way in which the University should deal with this by testing all students in residences before they are sent home, is simply not feasible.

Furthermore, he noted that the applicants’ founding affidavit failed to make out a case and o prove that they have any right to the relief they seek.

They also failed to prove that any of their rights had been violated, or that they have a reasonable apprehension that those rights would be violated.

On their alternative relief of remaining in residence and self isolate such would have to be extended to all students and not just the applicants would defeat the very object that the University and the country at large is trying to achieve.

As set out above, this relief is also logistically impossible by virtue of the fact that the staff who are in charge of such residences, and who see to the cooking and cleaning at such residences, will not work.

On the argument that the University had not taken precautionary measures to reach out to the 350 students who the GEMPI student had contact with, the respondent has shown measures, including engaging its internal experts, as well as with the NICD and the relevant departments of government as well as issuing a press article from which it was clear that government has been in regular discussions with the tertiary institutions in the country and support the closure of the University and the residences.

As quoted by Justice Ntaba, the South African judge considered that the University had followed precisely all protocols recommended by WHO, the NICD, the President and the renowned experts in this field. The judge dismissed the application and ordered no costs.

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