For Immediate Release: 15|04|2020
The Citizens for Transformation (CFT)-People Power Movement is upset by the unreasonable, autocratic and insensitive manner in which the administration of the Caretaker President has conceived and undertaken to implement LOCKDOWN due the Covid-19 pandemic.
The decision by the interim Mutharika’s administration confirms and vindicates our 14th April 2020 statement that this caretaker President attempts to use the corona virus pandemic to circumvent the will of Malawians that is ought to prevail in the forthcoming fresh Presidential election.
While the Covid-19 lockdown might be a sensible and practical approach towards containing the spread of the pandemic in other countries, the same cannot be said of Malawi whose majority of the citizens is in dire financial doldrums, unless measures have been clearly outlined to cushion their suffering that is bound to result from their locked ability to fend.
Apart from promising the small and medium enterprises the highly politicized MEDEF loan, government has not come out clear how it is going to cushion the majority of vulnerable Malawians, including child-headed families, struggling women, the youth and the elderly during this copied lockdown which lacks support of our domestic laws on how it has been styled.
It is worthy highlighting that the Government Notice No. 5, which was published in the Gazette on 9th April 2020, the Minister of Health made some Rules captioned as Public Health (Corona Virus Prevention, Containment and Management) Rules, 2020 (to be shortened in this Statement as Covid-19 Rules).
These Rules are purportedly made under the scheme of “Subsidiary Legislation”, which is legislation made using powers delegated to the Executive branch of Government or any other eligible public entity through an Act of Parliament. It therefore follows that the Minister of Health has purported to make the Covid-19 Rules under the Public Health Act (Cap. 34:01 of the Laws of Malawi).
However, this very Act, in the prism of section 58(2) of the Constitution of Malawi, which guides on how to make Subsidiary Legislation, has been grossly violated. This section of the Constitution does not even permit the Parliament to delegate the legislative powers to the Executive or any public entity where the underlying matters thereof would substantially and significantly affect fundamental rights and freedoms recognized by the Constitution. For avoidance of doubt, it was the intention of the legislature that the legislation on such matters that affect the fundamental rights and freedoms of the people are to be made by the Parliament itself.
Under the purported Covid-19 lockdown Rules, in rule 11(3) thereof, the Minister purports to order that people shall be confined to their places of residence, except for some exempted circumstances. Further, people have been lockdown from their economic activities, which sustain their livelihood.
We note that most of the fundamental human rights existing under Chapter IV of the Constitution, including but not limited to right to liberty, right to economic activity, freedom of movement and residence, and indeed political rights, have been or are capable of being substantially and significantly affected by the purported Covid-19 Rules.
Since this Rules have been made in a manner and/or by entity, which does not have legislative competence as set out in the Constitution, they are unconstitutional. Since the purported lockdown, therefore, relies on such unconstitutional subsidiary legislation, we find it to be both unreasonable and unlawful. This is a clear violation of the principle of separation of powers on which our system of government is structured. Since the purported lockdown has not laid down how the vulnerable are to be cushioned and how the fundamental human rights freedoms are to be preserved, we find it to be unreasonable, unlawful and insensitive. For avoidance of any doubt, the fundamental human rights and freedoms (as enshrined in Chapter IV of the Constitution) are to be inviolable except under a State of Emergency AND NOT under Nation of Disaster as is the case in the present instance.
CFT re-affirms and reiterates its position that the first step towards fighting the Covid-19 in Malawi is putting the resources in the right places. The caretaker Mutharika administration needs to stop misappropriating and looting public funds and direct them in the health sector to buy procuring adequate testing kits, protective equipment to health workers and other essential facilities such as ventilators and isolation centres.
CFT would like to further remind the caretaker President Mutharika that this lockdown should not be used as a scapegoat to run away from the forthcoming fresh Presidential elections.
Last but not least, CFT calls upon the caretaker President Mutharika to realize that this is a national crisis that cuts across all political and other sectorial divides. It, therefore, beats all the reason to have a small partisan group of people making key decisions on Covid-19 on behalf of 18 millions Malawians of diverse interests. It is further unfortunate and undemocratic that key stakeholders of the economy like the private sector, opposition political parties, the civil society and other relevant institutions that represent the will of the people were not consulted in arriving at the decision. It further stinks incompetence and dictatorial tendencies to override Constitutional provisions in fighting this pandemic. We maintain the resolve that no one and nothing; not even the Covid-19 pandemic, will still stand in Malawians’ way to economic and political liberation.
Timothy Pagonachi Mtambo
Citizen for Transformation (CFT) – People Power Movement