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Judging in the Pandemic – A Malawian Perspective

By Zione Ntaba

Malawi is not a stranger to public health crises in the last number of years, having faced a severe HIV epidemic and several cholera outbreaks continuing into 2023. Nevertheless, the onset of the COVID-19 pandemic caused a major panic in the country’s legal system and judiciary. COVID-19 brought to fruition a major ethical dilemma in ensuring the justice system’s continued functioning, while also protecting the lives of all those involved, and simultaneously ensuring the promotion and protection of human rights.

The constitutional mandate of ensuring access to justice in Malawi, a country which already struggles with effective and efficient justice delivery at the best of times, required urgent resolution, especially noting the potential of human rights violations arising from State responses to COVID-19 worldwide. Interestingly, in addition to the general need to safeguard the justice system as a whole, the pandemic itself brought before the courts issues relating to public health and human rights.

The prevailing principle in Malawi, as it is internationally, is for the judicial system to ensure that there exists an equal balance between the protection and promotion of human rights and the fair and just administration of justice. The courts in Malawi were called upon to rise above the political bureaucracy, to ensure judicial impartiality when dealing with pandemic-related issues. This was crucial in a context in which political responses to the pandemic sometimes remained unquestioned or unchallenged. However, unless these principles — of human rights and fair administration of justice — were properly upheld by the courts, sadly they may have remained in the world of the metaphysical.

It is with this context in mind that I turn to reflecting on the Principles and Guidelines on Human Rights and Public Health Emergencies (“Principles”).

The Principles and Guidelines on Human Rights and Public Health Emergencies

The Principles would have greatly assisted the Malawian judiciary if they had been available at the onset of the pandemic. This is because, from my perspective, they are an authoritative text, representing an international, consensus-based expert opinion on the most pressing human rights issues in public health emergencies.

The Principles therefore form and provide a benchmark by which the courts in Malawi should, in the future, consider whether State  (and sometimes non-state) actors comply with their human rights obligations to prevent, prepare for, and respond to pandemics. The Principles do so by emphasizing the wide range of rights protections for all individuals and not just select groups.

Judgments of Malawian courts in the context of COVID-19

In exploring the potential usefulness of the Principles, it is helpful to consider Malawian judgments that arise from cases dealing with the pandemic and the Malawian government’s response to it.

Kathumba case: separation of powers, social security, and lockdowns

The Khatumba case involved an order made by the Minister of Health for a temporary, national 3-week lockdown from April 18, 2020 to May 2020 due an increase in COVID-19 cases. The order was on the basis of two presidential declarations that declared a state of national disaster under section 32(1) of the Disaster Preparedness and Relief Act.

Additionally, the Government declared COVID-19 a “formidable disease” under the Public Health Act on April 1, 2020. The Minister of Health duly issued Rules aimed at the control or suppression of COVID-19, in terms of his powers under this Act. Despite there being various occupations that were exempted from the lockdown given effect to by the Rules, the restrictions were far reaching and adversely affected the lives and livelihoods of millions of people in Malawi.

In this context, four applicants approached the High Court to review the Minister’s decision to declare a lockdown and enact the Rules. The applicants sought both a declaration of invalidity and a temporary injunction preventing the government from implementing a lockdown, which they argued could only lawfully be put in place simultaneously with sufficient social security relief for poor persons.

Notably, the Kathumba case was initially a leave application for judicial review; handed down on April 28, 2020, the High Court awarded the interim order sought by the applicants pending full judicial review to determine the constitutional challenges to the lockdown regime. In the related constitutional judgment handed down on September 3, 2020, the Court responded more fully to the substance of the applicants’ challenges.

Ultimately, the Court upheld the applicants’ challenges for a range of reasons. First, it found that the Rules were enacted without providing for checks and balances because such subsidiary legislation must be subject to “mandatory scrutiny by Parliament.” Second, the Court found that the manner in which the executive sought to implement the lockdown in terms of the Rules was “over-broad” and displayed “over-concentration of power in one authority.”

Finally, and of central concern to the Court, was the lockdown’s effect on Malawians living in poverty, who would struggle to survive under lockdown, as they would lack access to basic necessities such as food and water if they were prevented from leaving their homes. It noted that existing social assistance programs that the Government identified for reducing poverty and vulnerability were denounced as failures. Emphasizing the extent of poverty in the country, with 51% living below the national poverty line and 73% below the international poverty line of US$1.90 per day, the Court therefore found the right to social security to be implicitly guaranteed under sections 19 (human dignity) and 16 (right to life) of the Constitution, as read with section 13 of the Constitution on principles of national policy. The Court therefore declared the Rules invalid and indicated that any measures to implement lockdowns should thus be taken with caution and after full consideration of the lives and livelihoods of marginalized Malawians living in poverty.

These judgments are consistent with the Principles which assert the universal enjoyment of human rights, including economic and social rights, separation of powers, and the rule of law as “overarching principles and obligations” of states in relation to public health emergencies. Importantly, the Principles also affirm the need for States to “provide for the potential deployment of social protection measures to mitigate and compensate for the impact of public health emergencies on livelihoods [and] welfare…” (Principle 12(2)(f)).

Nyirenda case: mandatory vaccinations and human rights

Both judgments in Khatumba were delivered and decided before effective COVID-19 vaccines were yet available in Malawi or worldwide.

After COVID-19 vaccines subsequently became available in Malawi, some statements were made by government officials suggesting that vaccination may be made mandatory for all public servants, frontline workers, and those working in the social sector, including journalists.

In Nyirenda v Ministry of Health, the applicants sought to review the of the imposition of mandatory vaccination, arguing that it amounted to a violation of human rights including the right of bodily integrity, as part of the right to private life and the right to free and informed consent. The applicants also challenged the decision to deny one of them entry into the parliamentary building on December 23, 2021 due to a failure to produce a vaccination certificate.

In deciding the case, the Court noted that there should be a clear examination of the issues. However, the Court denied the application on a procedural basis, highlighting that the applicants had misrepresented statements made by government officials to suggest a decision had been made to implement a policy of mandatory vaccination. Therefore, no matter how extreme it may seem to pursue such a policy, such a decision had not been illustrated to have been made.

Interestingly, the Principles, only refer to “informed consent” in the context of institutionalization (Principle 20.1), though protection of the right to informed consent is well established in international human rights law. The Principles, while detailing States’ obligations with respect to provision of vaccines, also remain — perhaps deliberately — silent on the topic of mandatory vaccination.

Conclusion: Thoughts from the bench

The Malawian courts have, in essence and to a large degree, embraced the human rights obligations within the context of public health emergencies as detailed in the Principles. Despite this, the courts would, in my view, have benefited from the detailed and specific guidance provided by the Principles. It remains essential to emphasize that, even though the Principles would not strictly be considered “law” under the Malawian Constitution, their strong foundation in international human rights makes them both relevant and important in the interpretation and application of Malawian laws and the Malawian Constitution. The Principles therefore hold substantial persuasive power for any judge, including myself, when determining a case involving public health emergencies.

Hon. Justice Zione Jane Veronica Ntaba is a judge of the High Court of Malawi who sits at the High Court Zomba Registry in the Eastern Judicial Region.

The Petrie-Flom Center Staff

The Petrie-Flom Center staff often posts updates, announcements, and guests posts on behalf of others.

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