AG Kaphale goofed by not challenging anti-lockdown injunction – Judge Kenyatta

High Court Judge Kenyatta Nyirenda has described failure by Attorney General (AG) Kalekeni Kaphale to challenge the anti-lockdown injunction as a dereliction of duty.

Nyirenda said this in a ruling delivered on Tuesday on the injunction restraining government from effecting a lockdown. In the judgement, the judge sustained the injunction which was initially granted to the Human Rights Defenders Coalition and other claimants on April 17.

The Attorney General’s office withdrew its application against the injunction last week and did not appear in court for an interpartes hearing on April 24.

On the day of the hearing, Kaphale was quoted in the local media saying that he hoped the court will make the right decision after looking at the information on the Covid-19 situation in the country.

“There are these daily briefings and I am sure our Judiciary is alive to what is happening and I believe our Judiciary has the nation at heart and will make the right decision,” Kaphale said.

Nyirenda in his judgement expressed concern that the AG’s office opted not to file any court process on such a weighty constitutional matter.

“With due respect, for the office of the Attorney General to sit on the fence on such an important topic involving imposition of a state of disaster or state of emergence is, in my considered view, a dereliction of duty: the office failed to live up to its constitutional responsibilities,” he said.

He added that holders of the office of the Attorney General should never be deluded into thinking that their objective must be to win cases at all costs.

According to Nyirenda, when the Attorney General appears in a case as a legal practitioner or as a party his role is similar to other legal practitioners in that they are all there to assist the court in reaching the correct result and thereby help to improve standards in public administration.

Nyirenda also noted that in the lockdown case, it was important for the AG to appear before the court since he must have been involved in coming up with the Covid-19 Rules whose constitutionality was being challenged.

“Instead of doing so, the office of the Attorney General decided to snub the hearing. Having done so, the office of the Attorney General then seeks to communicate with the Court through the media by stating, among other matters, that the Court should rely on information in the public domain.

“This is bizarre – the sherry effrontery of this statement is quite astounding. Actually, the fact that such a statement was made makes me wonder if the office of the Attorney General fully understands its responsibilities as envisaged by the framers of the Constitution,” said Nyirenda.

In his ruling in the case, Nyirenda sustained the injunction against the lockdown. He also ordered the state to pay costs to the claimants saying the state was still a party to the case despite withdrawing its challenge.