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Malawi Law Society queries Covid-19 committee’s legality

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Malawi Law Society (MLS) has said the special cabinet committee on Covid-19 has been acting illegally from the day President Peter Mutharika declared state of disaster.

However, government said MLS wants to bring confusion.

In a legal guidance paper dated April 20, 2020 on management of the coronavirus, MLS opined that upon the president’s declaration of a state of disaster, the committee— that was instituted on March 10, 2020—ceased to have any mandate over decisions, initiatives or activities for disaster preparedness and relief and that the minister of Health had no jurisdiction over response to Covid-19.

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Mutharika declared Malawi a state of disaster, on March 20, 2020 and announced new measures aimed at preventing the pandemic which were gazetted on April 3, 2020.

In the 40 paged document, the MLS observed that the day Mutharika declared the state of disaster, Minister Responsible for Disaster Preparedness and Relief Everton Chimulirenji would have taken over the management of Covid-19 pandemic, replacing Jappie Mhango who was heading the Special Cabinet Committee.

“It is not for the President or cabinet to manage a disaster. This is essentially for purposes of accountability both in terms of performance on the mandate as well as implementation and enforcement of the law. The Minister responsible is the competent authority for the Disaster Preparedness and Relief Act, he or she is in charge for the performance of its mandate and enforcement,” reads the report.

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MLS said any decision, initiative or action that was taken by the Special Cabinet Committee after 20 March 2020 with regard to ‘Civil Protection’ on Coronavirus was without legal authority.

The society also expressed reservations how the funding for Coronavirus was expended in compliance with Section 173 of the Constitution, Section 23 of the Public Finance Management Act, and sections 35, 36 and 38 of the Disaster Preparedness and Relief Act.

Earlier, President Mutharika set up a K15 billion fund to help in activities of fighting the pandemic.

“At law, after 20 March 2020 this fund became the National Disaster Preparedness and Relief Fund and ought to vest in Hon. Everton Hebert Chimulirenji, as Minister of Disaster Management Affairs and Public Events who is a mere 18 member of the Special Cabinet Committee. The ancillary concern is that this fund may have been expended on volunteers like Civil Society Organisations without accountability mechanisms,” reads the statement.

However, when contacted Chimulirenji asked for more time to read the document before commenting.

MLS also observed that the coronavirus rules were not lawfully promulgated primarily for being ultra vires section 58(1) for not being “within the specification and for the purposes laid out in” the Public Health Act and because it “substantially and significantly affects the fundamental rights and freedoms recognised by this Constitution”.

“His decisions and actions may be lacking the backing of the law where such decisions and actions should have been taken by the Minister of Disaster Preparedness and Relief, the National Disaster Preparedness and Relief Committee of Malawi; and the Commissioner for Disaster Preparedness,” reads the document in part.

In a brief response, Jappie Mhango, who sits in the special cabinet committee as chairperson, said the society wants to bring confusion and quickly asked for more time to read the document to make an informed comment.

As a way forward the society says it still stands by its proposition made on April 2 2020, to the government to enact appropriate legislation for civil protection against Covid-19.

Meanwhile, political scientist from Chancellor College, Joseph Chunga, has said declaration of national disaster should not compromise rule of law.

“Whether we have a disaster or not we should always make sure that we are within our laws. There should never be a point where deliberately people think they can disregard the law because there is a disaster,” he said.

On Monday law expert, Justin Dzonzi, also said constitutionally the special cabinet committee does not have the power to allocate public money as it is vested in parliament.

Malawi budgeted K157 billion for the National Covid-19 Response Plan and as of Friday government had only collected K19 billion according to the Commissioner of Disaster Management Affairs, Wilson Moleni.

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