Thread by @mynassah

10 Chinese nationals arrived in #Malawi on March 18. Six of them were deported following President Mutharika’s declaration of a State of Disaster in the face of #Covid_19. Four of them were granted a court order to enter the country by High Court Judge, Kenyatta Nyirenda.

Many were unhappy, including the government of Malawi, through the Information Minister, who said the order allowing the 4 Chinese to enter Malawi showed the Judge's lack of patriotism and undermined local and global efforts to protect people from #coronavirus

In their court applicaton, the Chinese claim they were stopped from entering because of corona fears, yet they were not examined or shown to be a risk. They said they had come to visit and “explore the beauty that Malawi is”

The Chinese said they had gone to extra expense to come to Malawi and to be told to go back at the airport when no reason had been given was very unfair and unconstitutional.

They said other people on the same flight with them, who looked like them, had been allowed in

In court, the Immigration Dept argued that it had came up with a resolution to refuse entry to those from high risk countries. #China is a high risk country for #coronavirus and therefore, no entry was to be granted to all Chinese nationals until the war against the virus is won

Judge Kenyatta, in his ruling in the case between the Chinese nationals and the Immigration Department (and the Attorney General) gave quite interesting reasons for his decision to order that the Chinese nationals be granted entry into Malawi

Among others, he cited Section 5 of the Constitution of Malawi which provides for the supremacy of the Constitution:
“Any act of the Government or any law that is inconsistent with the provisions of this Constitution shall, to the extent of such inconsistency, be invalid.”

He added that the Malawian Constitution is founded on the principle of inherent dignity and worth of each human being. All persons shall recognise and protect human rights and afford the fullest protection to the rights and views of all individuals, groups and minorities...

He added: "Rule of law primarily refers, to the requirement that decisions and actions of those in authority are based on the law and not on their whims or arbitrary discretion. It also demands equality before the law and that no person is above the law".

Importantly, the Judge said that the emergency measures as declared by President Mutharika should have been made in accordance with the law and that their legality, including their conformity with international law, should be capable of being tested/challenged in the High Court

He said this is important because govts have used emergency powers inappropriately including to bypass normal channels of democratic accountability, harass dissidents, rig elections, restrict the press, set aside a nominally democratic constitution and impose a dictatorial regime

Given the propensity to abuse emergency powers as shown above, the Judge then said: "This means that emergency powers must be subject to proper constitutional guarantees and procedural safeguards.”

Then the judge went for jugular: "Let me break down the provision in plain English for those who purport to have more knowledge of the Constitution than Judges yet their statements demonstrate ignorance of the highest order"

"High Court must be vigilant & resolute.Failure to do so would not only be wrong but might also unwittingly give the impression the judiciary is succumbing to political pressure from the other branches of govt by ingeniously hiding behind a declaration of national disaster"

"Disaster Preparedness & Relief Act (1991) provides for the coordination & implementation of measures to alleviate effects of disaster & the establishment of an institutional framework for disaster management, declaration of a state of disaster & mgmt of a disaster appeal fund"

"With due respect, please stop wasting the Court’s time by citing loads & loads of cases from foreign jurisdictions that do not have in their constitutions provisions on judicial review that are worded in the same or similar terms as section 108(2) of the Malawi Constitution"

Per the Act, the declaration of State of Disaster in Malawi should have met the following standards:

(a) the commencement date of and duration of the state of disaster

(b) who has declared it?

(c) why has it been declared?

(d) under what law was the declaration made?

Regarding the procedure for declaring a state of emergency, it must be clearly laid down in the law. The declaration must be formally proclaimed and it must involve the political organs of the state, that is, Parliament and the Executive. Not the President alone.

Again, the Judge found that it is not enough that an immigration officer has “reasonable suspicion” that the Chinese could be infected with corona. It has to be a matter of fact that the person indeed has the coronavirus.

So without testing to know for a fact, why deport them?

Now, the Judge's concluding remarks were perhaps the most interesting;

"The legislative regime governing Malawi’s response to disasters is not only archaic & obsolete but it is also in total shambles. Almost all applicable laws are completely outdated. Corona epidemic has caught 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"

"This is not the time to start questioning patriotism of fellow Malawians (the government has accused the Judge of bring 'unpatriotic') but to collectively pull up our socks so that we can fully apply our minds and energy to the preparation of the necessary legislation".

"Countries, such as Botswana, moved swiftly to promulgate necessary regulations to deal with the problem of corona. These countries fully understand that rule of law has to reign even during a disaster. Malawi also can tackle these disasters without compromising the rule of law"

"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 dare to hoodwink his or her own people"

Then the Judge said this, aimed at President Mutharika, of course:

"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".

"Framers of our Constitution knew pretty well that Malawi would, at some points in time, face disasters. They, accordingly, put in place constitutional provisions for handling such disasters. Let us give constitutionalism a chance to work. DO NOT TRY TO BE CLEVER AND HALF"

"I am duty bound to give this advice. As matters now stand, unless govt moves with speed to take necessary legislative measures, possibility to pay colossal sums of money in compensation for violating human rights as a result of imposing measures not anchored in law is very high"

The Judge said it was common knowledge that most local councils are struggling financially."I wonder how they will manage to source funds to pay huge compensation packages in the event that courts find that the invasion upon peoples’ liberties & properties were not backed by law"

For the local government, the Judge had some choicest words for them and how they have conducted themselves in trying to restrict public gatherings:

"How do you start to explain how even a local authority can wake up one morning to make a “by-law” banning wedding ceremonies only to make a partial U-turn within hours. My gosh! We are real jokers and making ourselves look foolish before the whole world"

"A declaration of a state of disaster does not give the state carte blanche to exercise power indiscriminately. The substantive and procedural limitations imposed by the law have to be observed"

"I fail to understand how it is possible (for the president) to make a momentous decision relating to a declaration of national disaster without citing the law under which the declaration is made. Was this just a case of inadvertence or they were trying to patronize Malawians?"

"I think it was to patronize. I have yet to hear an announcement of an appointment by the President of a person to a public office which announcement does not include the law under which the appointment is being done. However this was not done in the matter at hand. Why?"

Then the judge's final words:

"The Court will be the first in joining the State in the fight against coronavirus. The Court will help in ensuring that all necessary measures put in place, be it by the legislature or the executive branches, are enforced"

"However, it has to be made clear that the Court will not be part of a fight against the epidemic that is being waged outside the dictates of the law. The Court will not endorse measures that are unconstitutional and ultra vires. This country is founded on the rule of law"

ENDS.