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Attorney General, HRDC tussle over demonstrations again

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Tension continues to simmer between Attorney General (AG) Kalekeni Kaphale and Human Rights Defenders Coalition (HRDC) over the conduct of mass demonstrations, whose latest round is scheduled to run from today to Friday.

This follows an observation by AG Kalekeni Kaphale that holding demonstrations would be in contempt of court as the two parties involved in demonstrations negotiations are yet to report back to the Supreme Court results of their talks.

In a new twist of events that look like an attempt to stop the demonstrations slated for today through to Friday, Kaphale has written HRDC lawyer Khwima Mchizi wondering why his clients have proceeded to organise the protests before the two sides report back to Judge Lovemore Chikopa in the aftermath of their meeting held at the United Nations offices in Lilongwe on September 4 2019.

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But HRDC Chairperson Timothy Mtambo has trashed Kaphale’s letter, saying it was misguided.

“As you are aware that both sides engaged each other and agreed on a majority of parts but failed to agree on a few, there was a tacit understanding that the parties would go back to court to report on the agreed measures and seek its direction on the issues… until that happens no demonstrations would be held,” Kaphale’s letter reads.

AG has further argued that, should the protests proceed, the government would consider them as being held in contempt of court.

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He has said: “… government does not expect your clients to hold demonstrations until the judge makes his final orders and will consider any such demonstrations as being held in contempt of court and will seek appropriate court orders against the conveners and participants.”

AG has, however, disclosed that the two sides failed to meet the judge immediately after the expiry of the 14-day moratorium because he was reportedly out of jurisdiction.

But Mtambo, addressing the press in Lilongwe yesterday, said the nationwide anti-Jane Ansah demonstrations would still take place starting from today to Friday.

Commenting on the matter, Malawi Law Society former honorary secretary, Michael Goba Chipeta, observes that the Supreme Court order does not proceed to make provision as to what should happen after the 14 days in the event that the negotiations have failed or yielded nothing meaningful.

Despite opining that HRDC is not restrained from convening demonstrations, Chipeta holds that, in whatever case, the court should remain the last arbiter.

“One possible import of this lacuna could be that the respondents are no longer restrained from carrying out the demonstrations after lapse of the 14 days. Another very much possible import could be that there is implied, in the order, an understanding that the parties ought to report to the court after lapse of the 14 days before doing anything, given that it was the court that ordered the negotiations. As to which, between the two interpretations, is the correct one, the solution must necessarily depend on the totality of the matter’s context. The court, ultimately, should be the final arbiter,” he said.

Justice Ministry spokesperson, Pirirani Masanjala, said in a subsequent interview yesterday that it was important to appreciate why and how the two sides find themselves in their current position.

“The whole idea is to ensure that everything we do is done in good faith,” Masanjala said.

In his ruling of an appeal case which AG took to his chambers asking for a stop order against the protests on August 27 2019, Chikopa placed the moratorium on protests asking the government side and HRDC to discuss on mechanisms meant to ensure peaceful demonstrations as provided for in the country’s Constitution

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