A High Court judge Kenyatta Nyirenda who recently came under fire from government when he ordered the Department of Immigration not to deport four Chinese nationals upon their arrival in the country amidst the highly contagious Covid-19 has made a stinging ruling that questions archaic laws on the declaration of State of Disaster.
President Peter Mutharika declared a state of disaster on March 23 to combat the coronavirus. There is no lockdown but schools are closed and the government says it is urging people to work from home and follow hand-washing and social-distancing guidelines.
All social gatherings of more than 100 people, such as funerals, church services and political rallies, have been banned.
However, in his determination on an inter parties hearing of the application of four Chinese nationals Lin Xiaoxiao, Liu Zhigin, Wang Xia and Tian Hongze against their deportation to China, Justice Nyirenda said the rule of law has to reign even during a disaster.
“Let us stop wasting our energies and time by being preoccupied with propagating false stories and seeking to score cheap political goals. No politician worthy his or her name would even date to hoodwink his or her own people.
“Honestly, the very thought of declaring a state of disaster without even bothering to tell Malawians in clear terms the law under which the declaration is made is taking Malawians for granted,” said Justice Nyirenda in his ruling.
He stated that the framers of the country’s Constitution knew pretty well that Malawi would at some point in time, face disasters.
“They, accordingly, put in place constitutional provisions for handling such disasters.
“Let us give constitutionalism a chance to work in Malawi. Do not try to be clever and half,” said Nyirenda.
Justice Nyirenda said he is “duty bound” to give the judicial advice having taken judicial oath and oath of allegiance.
He pointed out that as matters now stand, unless the government moves with speed to take necessary legislative measures, the possibility of exposure by the State to pay colossal sum of money in compensation for violating human rights as a result of imposing measures anchored in law is very high.
Justice Nyirenda further pointed out that the legislative regime governing Malawi’s response to disasters, regardless so the nature and the extent of the disasters, is not only archaic and obsolete but “it is also in total shambles.”
He said: “ Almost all, if not all, applicable laws are completely outdated. Needless to say, the coronavirus epidemic has caught the authorities with their pants down – witness panic stations everywhere.
“How the authorities expect to effectively combat the epidemic in 2020 with laws enacted in 1948 (Public Health Act), 1964 (Immigration Act) and 1991 (Disaster Preparedness and Relief Act) boggles my mind.”
Justice Nyirenda said this is not the time to start questioning patriotism of fellow Malawians but to “ collectively pull up our socks so that we can fully apply our minds and energy to the reparation of the necessary legislation.”
He also pointed out that that the arrest and detention of the Chinese nationals was a blessing in disguise because it led to his ruling which provided an analysis of the law governing declaration of state of emergency (the term used in section 45 of the Constitution) and declaration of state of disaster (the term used in the Disaster Preparedness and Relief Act).
According to Nyirenda, this will go a long way towards the development of jurisprudence on the subject matter of declaration of state of disaster or declaration of state of emergency.
Justice Nyirenda granted the Chinese nationals’ application for the continuation of the interlocutory injunction.
The four were among 14 Chinese nationals who arrived in the country recently, but the Department of Immigration and Citizenship Services managed to send back to China 10.
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