COVID-19 and Africa Symposium: Lockdowns, Separation of Powers and the Right to Social Security in Malawi (Part 2)

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

Part 1 of this blog, details how the Malawian High Court struck down lockdown Rules issued by the Minister of Health as ultra vires, contrary to the rule of law and in violation of the separation of powers. This strong stand taken by the Court to protect the rule of law and assert judicial independence in Malawi is noteworthy in and of itself. 

However, the decision in Khatumba v President is groundbreaking for yet another reason: it is perhaps the clearest judicial pronouncement on the impact of lockdowns – now a common phenomenon globally – on Economic, Social and Cultural Rights (ESCR).

States’ COVID-19 responses, as has been detailed by the International Commission of Jurists in its report Living Like People Who Die Slowly: The Need for Right to Health Compliant COVID-19 Responses, have commonly had serious impacts on the full range of ESCR. Despite this, writing in this same symposium, Justice Moses Chinhengo notes that during the COVID-19 pandemic Courts have often displayed a tendency towards “jurislimitation” through a “self-imposed and higher degree of deference than is mandated by the separation of powers to the detriment of human rights”.

The Malawian High Court’s willingness to engage directly with the impact of lockdowns on ESCR is therefore important both of its own accord and because it may embolden other courts, particularly in the African context, to follow suit.

The applicants’ ESCR related challenge to the lockdown Rules

The applicants’ argued that the imposition of a lockdown without a corresponding provision of adequate social assistance by the government amounted to a violation of the right to social security of the majority of Malawians, many of whom are either unemployed or in precarious employment in the informal sector. These submissions were supported by information presented to the court by various amici curiae including the Society of Medical Doctors and the Women’s Lawyers Association.

This they argued despite the fact that the right to social security, while protected in international human rights law, is not specifically listed in the Malawian Constitution itself.

In its Preamble the Malawian Constitution recognizes as a core purpose of its adoption ensuring the “guarantee” of the “welfare and development of all the people of Malawi”.  Presumably to ensure this goal can be achieved the Constitution entrenches various ESCR, including rights to: engage in economic activity, work and to pursue a livelihood (Art 29); education (Art 25); family and marriage rights (Art 22); and children’s rights (Art 23). In addition to this the Constitution protects the rights to life (Art 16) and human dignity (19), from which additional social and economic rights are often seen as derived.

Building on this foundation, the Constitution also lists a range of “principle of national policy”, and empowers courts to:

“have regard to them in interpreting and applying any of the provisions of this Constitution or of any law or in determining the validity of decisions of the executive and in the interpretation of the provisions of this Constitution”.

These principles of national policy urge the government to “actively promote the welfare and development of the people of Malawi” by implementing policy and legislation aimed at, amongst other things, providing adequate: nutrition; healthcare; education; and social development.

In light of the above, the applicants argued that the lockdown restrictions, in the absence of sufficient social security measures, violated the right to social security as implicitly recognized in the Malawian Constitution through the entrenchment of the rights to life, livelihood and economic activity. 

The Court’s decision on social security

The Court began its findings on the social security challenge by acknowledging that 73% of Malawians live beneath the international poverty line of USD 1,25 per day and that the government’s social protection scheme “falls significantly short of the social protection floor guarantees on healthcare and income security”. This is because, it observed, existing social protection schemes ultimately “provide insufficient social protection to a small number of poor and vulnerable households”.

The result, the Court acknowledged, is that many struggled to comply with key COVID-19 measures such as “staying at home” or “social distancing” because they “live on hand to mouth basis” and “need to travel out of their homes as a matter of survival”. These commonly documented difficulties have also been acknowledged, for example, by the UN Special Rapporteur on Adequate Housing. The Lockdown Rules, the Court therefore concluded, presented a “real threat to [the] life and livelihoods” of a significant proportion of people in Malawi.

Accepting the applicants’ argument that the right to social security is “implicitly provided for” in the principles for national policy (Art 13) which is “paramount” in interpreting the rights to life (Art 16) and livelihood (Art 29), the Court reasoned, citing jurisprudence of the Indian Supreme Court, that the right to life cannot be realized without “enabling factors” such as a “means of subsistence”.

The Court acknowledged that indeed the Government accepted its obligation to provide social assistance to mitigate the impact of the lockdown. However, the measures the government had enacted, were not adequate either in degree of provision or the range and number of persons provided for. Furthermore, the Court held that:

“no process was put in place to identify those in need or the eligibility for such cash transfers, this in itself is a constitutional issue as constitutional rights of many people are ignored and the manner of allocating relief to a few is open to abuse and discrimination.”

Concluding that the lockdown therefore violated the right to social security, the Court indicated if there was a need for the Government to implement a lockdown in the future it must be “preceded by cogent research on the numbers to be affected by lockdown” and in adopted in parallel with:

“practical and realistic social security measures that respond to the ensuing socio-economic needs of the indigent (impoverished) ones in the locked population… [because] if a lockdown as a measure is to be imposed, the executive must follow constitutional and lawful precepts”.

Opportunity missed: engagement with international human rights law standards

The Court’s judgment makes only fleeting reference to international law in its reasoning and order and does not explain how, if at all, Malawi’s international law obligations in terms of ESCR bore on its decision.

Malawi has binding obligations to realize ESCR, including the right to social security, in terms of a range of international treaties including the International Covenant on Economic, Social and Cultural Rights (ICESCR), which it acceded to in 1993. In the context of COVID-19 in particular, the UN Committee on Economic, Social and Cultural Rights has indicated that States must adopt “special, targeted measures”, including by “providing social relief and income-support programmes to ensure food and income security to all those in need”.

Moreover, the Malawian Constitution itself requires courts to “have regard to current norms of public international law” in interpreting constitutional provisions (Art 11(2)(c)). International human rights law requires courts to prefer interpretations of domestic law consistent with their binding international commitments and prohibits any State from “invok[ing] the provisions of its internal law as justification for its failure to perform a treaty”.

Importantly, the Constitution also provides that derogations from rights in the context of states of emergency must be “consistent with the obligations of Malawi under international law” (Article 45(4)(a)) and derogations from the right to life are prohibited completely (Article 45(2)(a)). The same, it would stand to reason, would apply to the right to social security that the Court has now read into the right to life.

The Court was obliged to consider and apply international human rights law standards to the applicant’s social security challenge to the lockdown Rules. Though failing to do so, however, the Court’s decision is happily consistent with such standards, and it is hoped that similar approaches, supplemented by engagement with international human rights law standards, will continue to be adopted by Courts on the African continent and globally as the COVID-19 pandemic continues into 2021.