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.

From the left Dausi, Botomani, and PS for Ministry of Infomation Dr. Esmey Kayinja during press briefing at Capitol Hill in Lilongwe.- Pic by Daniel Namwini-Mana
Minister of Infomation Mark Botomani. Pic by Daniel Namwini-Mana

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.

 

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tizanka
Guest
tizanka

This scoundrel Kasambara, isn’t he supposed to be serving his prison term? Since when do we get moral leadership from convicted criminals?

AChizzy
Guest
AChizzy

Malawian commentators are Funny. Nobody is refusing the right to demonstrate. But the violence which is infringing on the rights of other people. And it is also constitutional not to infringe on other people’s rights. This selective application of law does not help at all. Commentators or experts or whoever they are should learn to be objective on applications of law indiscriminatively.

Malawian
Guest
Malawian

You can hate Ralp Kasambala the way you want but facts will remain facts,the Constitution of Malawi will remain the way it was written unless changed following the right procedures. Just to remind each other, Bakili Muluzi is an ex convict after stilling 6 pounds, the people from Southern Region overwhelmingly voted for him in 1994 after ruled Malawi for 10 solid years thereafter, have you forgetten ” tivotela wakuba yemweyo” so dont waste your energy throwing mad at the intelligent Ralp Kasambala, he is not a waste after all his arguments show that he is the same intelligent Ralph… Read more »

namatetule
Guest

Ndiponso this article should be mentioning Kasambara as ex-convict on bail not ex-minister

namatetule
Guest

Not only is Kasambara a thief- he is also a murderer. He should also write his judgement which clearly shows he should not be on the loose- he should be in jail.

Namalila
Guest
Namalila

Iwe Wongani Chiuta – you have forgotten one position for the so called Kasambara which is PRISONER umenwunso ndi udindo wanva

Alpha
Guest
Alpha

I 100% agree with having protected areas that should not be disturbed because of political issues. We cannot bring the country to a halt because of politics. There are economic and security considerations that need to be factored. This foolishness of taking Hong Kong airport shutdown as an example must be met with the fury and force it deserves. Our boarders are not just for Malawians but for all strategic partners near and far. Where have you ever heard this madness of closing boarders from? A boarder is what makes a country, it shapes its sovereignty. Without boarders a nation… Read more »

Ignatius
Guest

No soundable mind can listen to this crook called Kasambala, an educated idiot, I know u know how totrace people but u are a waste

braveheart
Guest

Who is kasambara? convicted x criminal.Where does he take the guts to think he has relevance?go to hell kasambala usatinyase munthu okuba iwe! Ulibe ntchito iwe kwako kunatha. Achina mtumbo ukuwapopawo ndi Iweyo uli gulu lomwelo. Anzako anakupasa judo umaziyesa shasha..ulibe ntchito iwe! Theres secrets I can disclose of u & will b destroyed further .I just control myself koz u were quite ndiye usayambe! Ok?

Lego
Guest

So who is Dausi you idiot?Kasambala is well educated than your fool Dausi.And stop being a puppet.

braveheart
Guest

Loser!

phillips wanga
Guest
phillips wanga

Putrid blue colored,take a stone and throw it to Kasambala if your house can not be petrol bombed.Which secrets,of Lomwes hidden agendas?

Cashgate1
Guest
Cashgate1

So in your eyes, Kasambala is the only thief? What about those big thieves and killers that are now in Govt, Kodi nawonso asatinyase? If your comment is objective, you would agree that Kasambala has pointed out relevant issues that we need to seriously think about. Unfortunately you are amongst some Malawian who doesn’t want to think critically but accept everything raw.

Mandado@147
Guest

Kasambara is smarter than ur dumb ass shut up fool! Cant waste time with ur uneducated self!

Dr. Mvuma
Guest
Dr. Mvuma

Braveheart you, yourself are an idiot. Kasambala is stating facts based on the Laws of Malawi, not his desires or character. It is people of your likes that benefit from crooks that attain power by crooked means who bury your heads in the sand like an Ostrich but dare not to face the reality. Your days are numbered, Mark my words. God does not sleep. He is watching. Soon and “VERY” soon you will be dealt with.

braveheart
Guest

..this man belongs in jail. His opinion is one sided serving his agenda & of MCP & PP his political parties.It means Nothing! While he mentions about right he shud alticulate responsibilities as well. Thus fair isnt it? There is no coin with one side .Period !. He’s intelligent?my foot! an intelligent man being convicted failing to defend himself using his intelligence? Then he is intelligent to you not me.How would a lawyer be convicted fair and square ,without political interference .Then u tell me he’s intelligent?Shame!

Mbwiye
Guest
Mbwiye

Kodi a kasambala mulipo? Pajatu munatulukira duluzi, mulandu sunathe. You better continue hibernating akulu.