Judge Ntaba concurs with Justice Kenyatta to review Malawi laws on state of disaster

High Court judge Zione Ntaba, has denied Chancellor College law students’ application for judicial review that they were demanding for an order to quash  President Peter Mutharika’s directives issued on March 20 2020 that led to the decision to close down Chancellor College.

Judge Zione Ntaba:  High Court is of the same view  made by Justice Kenyatta Nyirenda during the case that the Chinese nationals

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  President is unconstitutional to the extent that it is derogating their right to education without following derogation procedures under section 45 of the Constitution.

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 of the University of Malawi.

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.

In denying the application for leave for the judicial review, Justice Ntaba said High Court is of the same view with that made by Justice Kenyatta Nyirenda during the case that the Chinese nationals brought to Lilongwe High Court for being denied entry into Malawi by the Immigration Department.

Justice Nyirenda was the view that all other arms of government, including the Judiciary following the declaration of the state of disaster should with speed undertake the next necessary steps under the various Acts of Parliament to, amongst several suggestions, having the Executive including local authorities to make a detailed legislative agenda.

These are in terms of the various laws like the DRPA, Public Health Act (PHA) and the Education Act to develop necessary principal and subsidiary legislation which is consistent with the Constitution to safeguard people’s lives.

The Court also asks the Council of the University of Malawi to ensure that they find alternative means of continuing the Applicants as well as other students education as the right to education requires access as well as availability, acceptability and adaptability.

“Such measures to be reported by 30th April, 2020 in terms of roll out otherwise they shall be considered to be in contempt of court,” Justice Ntaba ruled.

“The legislature to undertake the necessary steps to ensure that the proposed principal and subsidiary legislation is vetted and promulgated according to Malawian law so that they avoid further legal challenges especially in this time of Covid-19 when all measures should be geared at safeguarding lives.

“Such pieces of legislation can look at social security for those with various vulnerabilities to the disease, types of lockdowns which can be ordered to mention a few.

“This court is therefore realizing there will be need for Malawi at some point to have a comprehensive discussion on the important matter of the law on state of disasters vis-a-vis states of emergency.

“The Court hereby makes no order as to costs.”

In her final words, Ntaba said the rule of law which is a tenet of the Malawian Constitutional law and indeed Malawian constitutional democracy, should always be upheld and should not be compromised merely in the name of public safety or preventing death.

“…In this case, this is our new reality and the law envisaged such a scenario. As a Court, all we can hope is that as the laws are being implemented, we continue to maintain the legality because numerous reports from around the world are showing how easy it is to turn to illegality in the name of safeguarding lives.

“Courts remain vigilant to promote and protect the rule of law. We also hope that we shall respond to the public health emergency (which is seeing our number of COVID-19 cases seemingly rising) in a manner that will build resilience but also innovate for delivery of justice to those who need it at this time.

“Human rights especially the right to life remains a priority for now which at this time Courts will continue to ensure is upheld by all involved  — public or private.

“It should be noted that in no way is this Court ranking the rights but in these circumstances, the right to life should be treated as a trump over other rights.”

In his ruling in Chambers on  April 3,  2020 in the case for the Chinese nationals, Justice Kenyatta Nyirenda, did not endorse measures that are unconstitutional , saying this country is founded on the rule of law and citing sections 9, 12, 45(6) and 103 of the Constitution of the Republic of Malawi.

He highlighted several Constitutional flaws as regards the declaration of emergency (the term used in section 45 of the Constitution) and declaration of state of disaster by President Mutharika.

He had, however, said the detention of the Chinese nationals was a a big blessing in disguise, saying the 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 DPRA) will go a long way towards the development of jurisprudence on the subject matter of declaration of state of disaster or is it declaration of state of emergency.

Nyirenda also tore apart  the legislative regime governing Malawi’s response to disasters, regardless of the nature and the extent of the disasters, saying it “is not only archaic and obsolete but it is also in total shambles”.

The judge said almost all, if not all, applicable Malawian laws are completely outdated and that needless to say, the Coronavirus epidemic has caught the authorities with their pants down as witnessed by panic stations everywhere.

Nyirenda further says the problem cannot be that of lack of time by Cabinet to consider the draft Bills (22 years is almost an eternity) or that of inadequate technical expertise to finalise the preparation of the draft Bills for presentation to Parliament.

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phiriwaphiri
2 years ago

paja akagamula agaisnt boma good judges koma agaisnt opposition they are third class judges shameeeeeeeeeeeeeeeeeeeeee

Zofu
Zofu
2 years ago

I think are playing with the corona its real what is speacial with Malawi still to be learning dikilani ikukatheni corona

Sizzler
Sizzler
2 years ago

Judge Nyirenda hiding behind our out dated laws !!!!! How much did the chinese citizens pocketed you!!!!! to the extent that you risk 16million of us Malawians for those two… People who would have to be medical certified first enter our country just like what the Chinese Goverment and the rest of European countries were doin in those same dates and times .Do those Countries dont Have Judges who could see what RIGHTS such people where being denied ? Shame on You …Nyirenda and your Associates .You have just shown us who sort of people the Malawian Judicial is manifested… Read more »

Keen Observer
Keen Observer
2 years ago

The problem id not our J7dgex but our laws the Judfes don’t make laws they only interpret & effect them.

Kaitano
Kaitano
2 years ago

They judge what they know. Let them do their work. If you want to be like them, its easy just go to xool and study hard as they did then you will reach where they are. Si kuxikonda ai koma adamwa ink mokwana anthuwa

Sisi
2 years ago
Reply to  Kaitano

Ink yake iti? These are 5th grade judges that is why their rulings are rambling and questionable. Their ruling reveal the poor intellect of our judges and this is at all levels.

Phiri
Phiri
2 years ago

There is a virus of myopic that has entered into the heads of our judges.

Bebe
Bebe
2 years ago

Useless judges. Corrupt judiciary which has lost direction.

Joni
Joni
2 years ago

The Constitution is the JUDGES’ MANUAL, therefore, if the manual is wrong don’t be like one MAD PROFESSOR who still puts forward directives without references…….Update the MANUAL and blame the Judge if he/they make mistakes while with an updated manual…….

OSANGOLUBWALUBWA MA KADETI……OKOLOLA PALI KOLONA VIRUS…..OKUBA INU….

King Xerxes
King Xerxes
2 years ago
Reply to  Joni

Tell them. Mbava za chabe chabe

Nasingwe
Nasingwe
2 years ago

nde malume wako uja inathela pompaja ya ma alibibino ija

Mask
Mask
2 years ago
Reply to  Nasingwe

Anatsekeleza professor alimomo zitaye. uyu anatulukuma sizapamutu Koma abwana professor akalamula zingapite Pati? Chi zip pakamwa. @nasingwe.

Ida
Ida
2 years ago

What wrong has Ntaba committed here? Tsiku Lina ukadzafuna chilungamo uzakuwona kufunikira kwa Ma judge ukuwanozawa

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