…MLS faults Govt for breaching Constitution, sidelining doctors
The Malawi law Society (MLS) says the Minister of Disaster is the one entrusted by the laws of Malawi to lead fight against Covid-19 because the disease was declared as a disaster by President Peter Mutharika.
This is contained in Legal Guidance Paper on Management of the Corona Virus (Covid-19) Pandemic signed on 20 April by the executive committee of the society.
The society in its paper says the Special Cabinet on Coronavirus led by Minister of Health is illegal because after the declaration of disaster by Mutharika, response to Covid-19 became ‘civil protection’ as defined in the Disaster Preparedness and Relief Act.
The fight against the disease , after the declaration, moved from being mere formidable epidemic disease declared under section 30 of the Public Health Act to a Disaster under section 32 of the Disaster Preparedness and Relief Act.
“Our view is that at law, upon the President’s declaration of a State of Disaster, this Committee ceased to have any mandate over decisions, initiatives or activities for disaster preparedness and relief. By law, the declaration confers mandate on the Minister of Disaster Preparedness and Relief, the National Disaster Preparedness and Relief Committee of Malawi, and the Commissioner for Disaster Preparedness and Relief. This is the only authority that the law has given the mandate to facilitate or manage a response during a State of Disaster,” the MLS said.
The society also noted that Minister of Disaster Management Affairs and Public Events Everton Chimulirenji who is a mere member of the Special Cabinet Committee should have had the powers to manage the K15 billion fund that was set up by the President for Covid-19 fight.
“The ancillary concern is that this fund may have been expended on volunteers like Civil Society Organisations without accountability mechanisms,” said the society.
There are also concerns in the report that the special committee has been sidelining the Malawi Medical Council and the Society of Medical Doctors which are two institutions with legal mandate in the provision of civil protection in the declared disaster.
“To deny these two institutions any role in the provision of civil protection pursuant to the declaration of a state of disaster or to deny or ignore to consider their proposals through active consultation is to deny parliamentary oversight and to deny citizenship participation through Parliamentary representation in the response to Covid-19; and the provision of civil protection,” MLS said.
According to the society, Minister of Health Jappie Mhango who now works with a large Cabinet Committee on COVID-19 has disregarded the Constitutional dictates of separation of powers and trampled on rule of law as has been done in the rules in promulgated Corona Virus Rules.
The society then asked the recommended an urgent overhaul and realignment of the crisis management structure to mitigate the breaches already identified.
“The new crisis management regime must build on what has already been done, regularise the serious irregularities identified, bring in the statutory interlocutors mainly the Medical Council of Malawi or the Society of Medical Doctors and the Malawi Law Society to play a professional role and for the political arms to settle political difference in legislative instruments,” the MLS said.
This, according to the MLS, will allow the Government to act lawfully and proportionately while grappling with the current emergency and pushing the nation on the path to recovery from the pandemic.
Malawi has so far recorded 23 cases of the coronavirus and there have been three recoveries and three deaths.
