COVID-19 and Africa Symposium: Lockdowns, Separation of Powers and the Right to Social Security in Malawi (Part 1)

[Tim Fish Hodgson is a Legal Adviser on Economic, Social and Cultural Rights, International Commission of Jurists.]

In August this year, Timothy Mtambo, now Minister of Civic Education and National Unity in Malawi, wrote that “we now have a judiciary that is more independent than at any other time in the history of Malawi”, noting that former President Mutharika, who was in office until late June 2020 attempted to take advantage of COVID-19 to “stifle dissent and prolong his stay in power”.

Mutharika had, according to Mtambo, “tried to put a knife into separation of powers” denying its application in Malawi despite the Malawian Constitution’s explicit safeguarding of the separation of powers and judicial independence. Despite President Mutharika’s efforts, or perhaps because of them, significant judicial interventions from Malawian courts in 2020 changed both the direction of Malawian electoral democracy and the government’s COVID-19 responses.  

In May 2020, in Mutharika v Chilima, the Supreme Court of Malawi nullified the results of a presidential election due to a litany of significant irregularities in the electoral process. Justice Mavedzenge’s two–part blog on these pages explains the broad significance and importance of this decision which he argues appropriately “places the need to comply with electoral rules at the center of election management and litigation”.

However, even prior to this, the High Court of Malawi had on 28 April 2020 issued an injunction prohibiting the government from “effecting and or otherwise enforcing the lockdown … until the final determination of the substantive judicial review”.

The applicants had approached the Court seeking such an injunction arguing that the Rules issued by the Minister of Health in terms of the Public Health Act, which facilitated the lockdown, amounted to de facto declaration of a state of emergency in contravention of the Constitution. The applicants also argued that the lockdown would “effectively deprive most Malawians of their means and sources of income” and therefore the decision to implement it “without for social security interventions to marginalised groups in our society” was contrary to Malawi’s human rights obligations.

The High Court injunction, which effectively halted the proposed lockdown, was later confirmed by a further ruling of the High Court of Malawi in S v Kathumba on 3 September 2020. The High Court’s judgments in the Khathumba matter simultaneously vindicate international recognized Economic, Social and Cultural Rights (ESCR) and the rule of in Malawi. In so doing, they provide an excellent illustration of the connection between judicial independence, separation of powers and ESCR.

Part 1 of this two-part blog focuses on the Court’s judgment in relation to the rule of law and separation of powers. Part 2 highlights the judgment’s significance for ESCR litigation in Malawi.

Absence of legal basis for lockdown rules

The lockdown was purportedly initiated in terms of section 31 of the pre-existing Public Health Act, which empowers the Minister of Health declare “infected areas” in the context of a pandemic and make Rules for specific listed purposes including, as an example, providing healthcare services to such areas.

The Court found that the lockdown Rules were outside of the Minister’s powers (“ultra vires”) as they were without legal basis in the Public Health Act, reasoning that:

“it would be stretch of section 31 to state that [her powers in terms of the Act] extends to authorising the Minister … to regulate public gathering by restricting the conduct of funerals, compel the provision of sanitary or hygienic facilities at public events and to compel the provision of adequate ventilation at a gathering.”

The Court also found no basis in the Public Health Act for the significant restrictions of movement occasioned by the lockdown. This it asserted was because the restrictions of movement provided for by the Act were “narrow” and only contemplated restrictions on entry and exit from specific infected areas. Similarly, the Court held that there was no legal basis for the regulation of employment and labour issues in the Public Health Act.

Usurpation of Parliamentary checks on executive power

The Court also struck down lockdown Rules purporting to regulate the procedure of the Malawian legislature, finding them to amount to a violation of the separation of powers by the executive. However, the Court’s reasoning in this regard goes even further commenting on the positive role the legislature ought to have played in the enactment of any such regulations.

The Court noted that although the Constitution empowered Parliament to delegate the power to make subsidiary legislation (Art 58), in the same breath it prohibited Parliament from delegating “any legislative powers which would substantially and significantly affect the fundamental rights recognized by this Constitution” and required any subsidiary legislation to be “laid before Parliament”.

Despite this, at the time at which the lockdown regulations came into effect they “had not been laid before Parliament”. Because subsidiary legislation is subject to “mandatory scrutiny by Parliament”, the Court concluded that the government was not empowered to “unlawfully implement the COVID-19 Rules by enforcing a nationwide lockdown without having the Rules laid down before Parliament for scrutiny”. 

Overall, the Court came to the seemingly inescapable conclusion that “whatever law, if any, predicated the COVID-19 [Regulations] it is not the Public Health Act”. The regulations were not laid before Parliament and had, according to the Court, had the “effect of substantially affecting fundamental rights” including the rights to: education; religion; freedom of movement; freedom of association; assembly and demonstration; economic activity, work and pursuit of livelihood.

The bypassing of Parliament’s constitutionally provided check on delegated power to the executive, in addition to the violation of the separation of powers and the rule of law, therefore also unlawfully had a deleterious effect on human rights. Not only did the lockdown regulation limit constitutional rights but it “negate[d] the essential content of rights” and therefore amounted to derogations of rights only permissible in the context of a validly declared state of emergency.

The executive, the Court concluded, could not impose a state of emergency “through the back door” and instead of adopting “quick-fixes through subsidiary legislation”, the Court directed Parliament to enact a new law dealing comprehensively with pandemic responses because “even public health emergencies must always be handled within the framework of the rule of law”.

Encroachments on Judicial Independence

Overall, perhaps the Court’s most emphatic condemnation was reserved for what it considered to be the Minister of Health’s “curtailing of access to courts” through the Rules which it held infringed on the rights to access to justice and “visited violence upon this country’s constitutional scheme”. Such powers, the Court observed, were not even permitted to the President in a state of emergency and certainly not within the authority of a Minister.

Noting that the “affront to the rule making powers in subsidiary legislation posed” by the Rules was “substantial”, the Court explained that the Chief Justice was the appropriate authority to issue rules to regulate judicial proceedings and had in fact done so. The Court reasoned:

“Though this may appear to be a small encroachment in the doctrine of separation of powers, no breach of such separation should ever be diminished… Any breach of this doctrine is both illegal and unconstitutional.”

The Court’s findings on the illegality of the Rules attempts to regulate judicial proceedings are of particular importance in the Malawian political context, in which the executive had made significant efforts to impinge on the independence of the judiciary. They are also essential in ensuring Malawi’s compliance with international human rights law which provides for a right to effective remedy and reparation. As the International Commission of Jurists has argued in the context of COVID-19 response measures, international human rights law requires that judicial proceedings relating to “violations of human rights and constitutional rights, particularly those involving irreparable harm” continue to be accessible and available.

Conclusions such as these on separation of powers may seem academic, but they are of vital importance to the vitality of constitutional democracy. This importance is vividly illustrated by the Court’s own conclusions relating the impact of the Rules on the majority of Malawians, whose livelihoods were significantly compromised in the wake of a lockdown. This is the focus of Part 2 of this blog.