The African Court on Human Rights has granted a stay order against execution of an order by the Supreme Court of Appeal which ordered that Youth and Society (Yas) Executive Director Charles Kajoloweka to pay K21 million as costs in a case in which he sued President Peter Mutharika to fire his then Cabinet minister George Chaponda.
Chaponda was connected with the controversial 2017 maize import deal in Zambia.
An order Malawi News has seen dated March 27 2020, signed by Justice Sylvain Ore, president of the African Court on Human Rights, has given parties to the case 15 days to report to the court in Arusha, Tanzania from the date of receipt of the judgment.
The order stays: “The enforcement of the costs by its Supreme Court of Appeal against the applicant pending the determination of this application on merits.”
Kajoloweka applied to the court in October last year through the Pan African Lawyers Union which is being represented in Malawi by lawyer Wesley Mwafulirwa.
In an interview, Mwafulirwa confirmed of the stay order and said they went to the African Court having been convinced that the Supreme Court of Malawi erred in following standard criteria in a public interest litigation case.
“We were challenging the cost order. Basically, our point has been that you do not condemn a public interest litigant with costs unless the case was commenced on bad faith or the case was completely frivolous, it was a case that lacked merit or it was completely useless or baseless.
“If a person meets those criteria, then you condemn that person with costs… so our point at Arusha was that the Supreme Court erred in that it ordered costs without going through that criteria or the situations I have mentioned,” he said.
But, in an interview, Nerverson Chisiza, who was one of the lawyers representing the Republic of Malawi, said they have not yet been served with the judgment.
In the judgment, the State urged the African Court to dismiss the applicant’s wish for the injunction on the basis that Kajoloweka did not exhaust domestic remedies.
The civil appeal case number five of 2017 was between George Chaponda (first appellant) and the President (second appellant) versus Kajoloweka (first respondent), Yas (second respondent), CCAP Livingstonia Synod (third respondent) and Centre for the Development of People.
The African Court on Human and Peoples’ Rights is a continental court established by African countries to ensure the protection of human and peoples’ rights in Africa.
It complements and reinforces the functions of the African Commission on Human and Peoples’ Rights.
Malawi is one of the nine countries in Africa that made a declaration recognising the competence of the court to receive cases from non-governmental organisations and individuals.