Legal scholar, who is also Dean of Law at University of Malawi’s (Unima) School of Law Sunduzwayo Madise, has said the coronavirus (Covid-19) measures which Minister of Health Jappie Mhango has published in the Malawi Gazette – official government publication- including a nationwide lockdown should not be involving curtailing of people’s rights and freedoms.
In the notice, Mhango, who is also chairing the Special Cabinet Committee on Covid-19, says: “In exercise of powers conferred by Section 31 of the Public Health Act and pursuant to my declaration of coronavirus disease as a formidable disease on the 1st day of April 2020, I Jappie Chancy Mtuwa Mhango, Minister of Health, make the following rules….5. Certification enforcement officers…11 Lockdown.”
Nyasa Times on Sunday reported that the country may enter into a 21-day lockdown starting this week as a measure of limiting the spread of the virus pandemic
But Madise writing on his Facebook page where he has been very influential as a mover and shaker of public opinion in matter of law, said a lockdown imports martial law.
“There is strict limitation of citizens rights including movements. The military and the police typically take over, patrol the streets and enforce the lockdown, except those who are allowed to move, the country is essentially under house arrest conditions. Everything grinds to a standstill,” he wrote.
Madise, who is also in the seventh Cohort of Commissioners for the Malawi Human Rights Commission (MHRC), said the rules which Minister Mhango has published in the Gazette are subsidiary or secondary legislation while primary legislation is the public Health Act.
“Most primary legislation has provisions in which Parliament delegates its authority to, usually a line minister, to promulgate subsidiary legislation.
“The principal of law however is that you cannot change the scope and power if primary legislation through secondary legislation,” he commented.
Madise said outbreak is a serious issue demanding action from the Head of State and not rules by a Cabinet minister.
The Dean of Law said he was not against lockdown measure but wants to ensure that “we arrest this demon [curtailing people’s liberties] it its tracks.”
Madise said to have subsidiary legislation limit constitutional rights would be tantamount to amending or limiting the power of the Constitution of Malawi “via the backdoor.”
He schooled government that the right law to deal with such drastic measures like lockdown us Declaration of a State of Emergency by the President under the Constitution, not rules made by a Minister.
“This is a serious issues which needs the full power of the law in dealing with it,” he said.
Declaration of State of Emergency is made through Parliament’s approval “only in times of war or widespread natural disaster”, according to Section 45 (2) (c) of the Constitution.
Meanwhile, University of Malawi economics professor Ben Kaluwa has said the coronavirus lockdown could be a “catastrophe” for the country’s economy.
He said businesses are going to fail, livelihoods are going to be damaged in a lockdown.
“We have seen lockdown paralysing economy in Italy, China and other countries and this cannot spare Malawi,” he said.
The coronavirus lockdown is already delivering a hammer blow to the economies of countries such as South Africa, Zimbabwe , Uganda and Kenya.
But minister Mhango said the priority for government is to protect people’s lives and then subsequently protect their livelihoods.Follow and Subscribe Nyasa TV :