Judge Kenyatta Nyirenda sustains anti-lockdown injunction

High Court Judge Kenyatta Nyirenda has ruled that the injunction against the Covid-19 lockdown should continue.

The injunction restrains government from instituting a lockdown in Malawi or closing churches until the final determination of the substantive judicial review or a further order of the Court.

On April 17, Nyirenda granted a seven-day anti-lockdown injunction to the Human Rights Defenders Coalition (HRDC), Esther Cecilia Kathumba, Monica Chang’anamuno and the Church and Society Programme of the Livingstonia Synod of the Church of Central Africa Presbyterian.

On the same day, Prophet David Mbewe also applied for an injunction against the closure of churches and the case was added to the HRDC case since the issues are similar.

The Attorney General was listed as a defendant in the case but withdrew his challenge to the injunction and did not appear before the court during an interpartes hearing on Friday last week.

During the hearing, the claimants argued that the decision to effect a lockdown is illegal and unconstitutional because the lockdown was being effected before a declaration of state of emergency had been declared.

They also argued that Covid-19 rules guiding the lockdown had not been reviewed by Parliament and that government had not provided food or money to individuals and  stimulus packages to small business considering that the lockdown would effectively deprive most Malawians of their means and sources of income.

On closure of churches, the claimants said it poses a great risk of negatively affecting the church’s constitutional right to property, religion and even to freely associate with any group.

In his ruling today, Nyirenda said the injunction should continue and he also ordered the state to pay the claimants costs which they have incurred for the case.

Nyirenda said: I am satisfied that the balance of justice lies in favour of maintaining the status quo. In this regard, the validity of the Court Orders granted herein on 17th March 2020 and 24th April 2020 respectively shall continue until the determination of the substantive judicial review proceedings or until a further order of this Court.”

He also noted that the matter has led to several constitutional issues and then referred the matter to the Chief Justice for the certification under section 9(3) of the Courts Act.

He said: In view of the foregoing, these proceedings, save for the order of costs awarded to the Claimants, are hereby stayed pending the decision on certification by the Honourable the Chief Justice, and should he so certify, the proceedings shall remain so stayed pending the determination of the constitutional issues by the High Court panel to be constituted under section 9(3) of the Courts Act.”

 

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