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‘Lockdown unlawful’

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The High Court, sitting as a Constitutional Court in the lockdown case, has ruled that the April 9-gazetted-Covid-19 rules that included lockdown were on were unconstitutional.

Three Judges, Fiona Mwale, Dorothy De Grabrielle and Ken Manda, in a judgment delivered Thursday, said the rules were ultra vires section 31 of the Public Health Act.

“The Minister of Health has powers to make subsidiary laws without departing from the parent Act hence, the Covid-19 rules under which the lockdown obtains are unconstitutional in view of sections 44, 45, 46 and 58 of the Constitution,” reads the judgment in part.

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Human Rights Defenders Coalition, Church and Society of the Livingstonia Synod and three others challenged the implementation of the lockdown in April this year and sought judicial review of the matter.

HRDC Chairperson Gift Trapence said he was happy that the judgment has set a precedent of the need to follow the rule of law

“This is what we were fighting for. We were fighting for the protection of rights of Malawians as we are a country of rule of law. What we want is to set a precedent that whenever we have any emergency we have to manage a crisis using a legal frame. We wanted as well to protect the rights of Malawians,” he said.

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Spokesperson for the Ministry of Justice Pilirani Masanjala asked for more time to comment in the matter.

In the rulling three judges said then Minister of Health was incompetent to lawfully implement the Covid-19 rules by enforcing the nationwide lockdown prior to having the rules laid down before Parliament for scrutiny.

They also said the ministry breached Section 58(2) of the Constitution since he had no powers to make subsidiary legislation that substantially and significantly affected the fundamental rights and freedoms.

“The restriction on rights by the lockdown provisions the Covid-19 rules exceeded permissible limits under section 44 of the Constitution. Consequently, the state of emergency was imposed through the back door and without following sections 45 of the Constitution,” reads the judgment

The court has since made a recommendation for parliament to pass a new law on public health to be enacted that will comprehensively deal with issues of pandemics.

“The current Public Health Act is very old and ill-equipped to deal with a pandemic of the Covid-19 magnitude.” reads the judgment.

The three judges also said in the case of a lockdown in the near future, such a measure are preceded by cogent research on the numbers to be affected and adopt a practical and realistic social security measures.

“If the lockdown as a measure to be imposed, the executive must follow constitutional and lawful precepts,” the court said.

The judgment also says whatever form of measures the executive chooses to take in responding to the Covid-19 pandemic, the measures cannot be lawfully and effectively made using the Public Health Act as the parent Act in its present form.

Society of medical doctors, the law society and women lawyers association was amicus curiae and advised the court against the lockdown implementation.

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