Open letter to Malawi Law Society on constitutionality of lockdown

Dear MLS president Burton Chindongondo Mhango,

Malawi Law Society (MLS), a body of which you’re it’s President, comments on public issues to do with the law and has locus standi to move the courts to protect the constitution with respect to section 15 of the constitution.

I remember when late President Bingu wa Mutharika had passed to glory, the then MLS President Gift Mwankhwawa, fearlessly conducted a forceful press conference saying they will not allow anything unconstitutional.

This was the period  DPP politicians were staging mid-night press conference to block Joyce Banda from ascending to the Presidency and as we would later learn via the report of commission of inquiry into the death of the president, this was the time when the current President, Peter Mutharika, was cajoling the then Army General Henry Odillo to just take over the government.

Now we are in a similar situation, President Mutharika via his Minister of Health has announced a lockdown. This is a lockdown which is derogating rights of Malawians, for example right to freedom of movement or to freely engage in economic activities as provided for under section 39 and 29 of the constitution respectively.

These rights, I contend, can only be derogated not via a Health Minister lockdown but via the President declaring a state of emergency as per section 45 of the constitution.

The Health Minister’s subsidiary laws which formed the basis of the lockdown are clearly against section 58 of the constitution as they are affecting rights of Malawians as enshrined in the constitution.

Malawi Constitution  as per section 5 and section 199 is the supreme law of the land. A statute and/or indeed subsidiary laws are inferior to the constitution as per section 48(2) of the constitution.

How come then that Malawi Law Society is quite on this blatant circumvention and/or manipulation of the law. Is the lockdown, in the context in which it has been declared where rights of people are being affected constitutional against the background that no state of emergency has been declared as is provided for under section 45 of the constitution?

I and indeed many other Malawians need your (MLS) position on this matter whether in support of the position taken by the regime, if you think they are working within the confines of the law, or indeed a different position if you think the court sanctioned Peter Mutharika administration is manipulating the law for political expedience.

Get me right, I am not against putting measures to fight coronavirus. I am just interested in making sure that the constitution is being adhered to whilst making such measures. So far, am not convinced that President Mutharika is acting within the law.

It would be dereliction of your duties on your part or indeed on the part of MLS, which many think dances to the tune of this government, to stay quite as you are doing on such serious issues.

Your urgent response on this issue will be greatly appreciated.

Sincerely and respectfully Yours,

Decenzo Banda

Senior Citizen

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