Normally I don’t comment on statements, comments and/or articles by or against my predecessors or successors. But this one will be an exceptional and I am sure will be pardoned for my discretion.
First the Statement by the Attorney General demonstrates the fact that constitutional litigation is not only about law but also politics. It involves making political choices at both micro and macro level. And this is not surprising given the political contents of the Constitution itself.
Second human rights issues are not always easy to balance. The right to govern by the politician ends at the gate of individual liberties. In this case public health measures by government must in the first place meet constitutional rule-making procedures and human rights standards. Now if public officials or government agents rush to pass and or impliment public measures without following the rule of law all in the name of containing the Covid-19 pandemic they have themselves to blame and not the judiciary. The judiciary is the neutral referee whose noble duty is to see whether govt and/or citizens are complying with or acting in accordance with the agreed upon rules of the game ie the Constitution.
Malawi is not an exceptional case. Elsewhere COVID-19 measures are being challenged where there are too intrusive of citizens rights. For instance in Croatia the Constitutional court there has held that recent public health measures by the officials were unconstitutional.
Third unchecked or unbridled exercise of powers by public officials masquerading as exercise of emergency powers to protect lives may actually lead to destruction of many more public lives. And that was the point demonstrators were making last Friday when the litigants in this case were in court applying for injunction. In parenthesis last Friday’s demonstrations were sporadic and spread across the country. Indeed if unchecked, these public emergency powers may be the beginning of tyranny. Hence the need to ween any arbitrary wielding of state powers at the earliest opportunity. You recall the wise words of Lord Atkin in Liversidge v Anderson. They still hold truth about 100 years later.
Fourthly the fight against COVID-19 requires a holistic approach. Needless to say everyone needs to be brought aboard the ship that will take us to safe shores. In this case public notice, consultation and participation in rule-making process is a prerequisite to the validity, legitimacy and acceptability of public health measures. Parliament need to be summoned as soon as possible. The court already advised on the need to amend or enact new public health legislation that will anchor the sought public health measures. By the way where are we on this exercise?
One may ask where was the government when WHO announced that COVID-19 was a pandemic disease and called upon all its members states to take appropriate action? If the government took over a month to do its job why now blame the judiciary for asking the govt to wait for only 7 days? Or indeed 48 hours only as the AG is at liberty to take out an inter partes application to vacate the injunction?
Often I have said that it’s wise and very safe for an advocate to litigate in court rather than in the media. There are myriad challenges with litigating in the media. 1) You may be quoted out of context. 2) you may be misunderstood by those that matter most. 3) You may be forced to eat your humble pie when you next appear before the same judge you are supposedly to have ridiculed; and in that case you look twice stupid (pardon my French).
Let me end by lamenting ( to borrow the signature of my brother Bruce Sosola ) that this blame game between the Executive and Judiciary on who is excarbeting the Malawians suffering needs to end. It’s not healthy for themselves and the citizens. And the honourable office of the Attorney General holds key to that.
By the way the State President is at liberty to summon most former AGs to advise him on appropriate legal measures the State can take to combat Covid 19 as they are Senior Counsel and took an oath to be available for such noble task. So to my good friend AG her is the warrant for blame game: blame it on collective wisdom of former AGs and SCs on your next step but NOT statements in the media.