In a long and highly unusual judgment, a judge of Malawi’s high court has shown that the country’s legislation is completely unprepared to manage the coronavirus pandemic, and without the appropriate regulations or, in some cases, even appropriate laws. The judge made these findings in a case that concerned 10 Chinese nationals visiting the country. In a series of steps by officials of Malawi’s immigration and citizenship services some were deported, while the remaining four are still in Malawi although attempts were made to send them back to China. Official action against them appears, however, to have been taken without the proper legal basis: officials were unable to use the present health law that dates back to 1948, and so decided on action based on a 'resolution'. In deciding the interim questions raised in the first part of the case, the judge examined laws essential for the state of disaster declared to deal with the coronavirus and found the laws ‘archaic’, ‘obsolete’ and in a ‘total shambles’. The judge also strongly resisted claims that appear to be circulating in Malawi, that judges who demand that official action must be taken in terms of some law or regulation, are ‘unpatriotic’. He warned that unless laws and regulations were urgently fixed so that they are fit for purpose and will stand up in court, the state as well as local authorities could find themselves facing massive claims for damages in relation to actions that are not lawful.
The decision delivered by Judge Kenyatta Nyirenda in this case is long, dense and in parts highly unusual in style.
In view of the significance of the judgment, for Malawi and other countries needing to make regulations to manage the coronavirus pandemic, this discussion of the judgment is longer than usual. It is divided into three parts:
The case was brought by 10 Chinese visitors against the director-general of Malawi’s immigration and citizenship services and against the country’s attorney general. Six of the group have already been flown home, under protest. The remaining four are currently awaiting deportation, pending the outcome of this case.
The group flew into the country on 19 March and claims that all of them had been pre-approved for visas.
Their travel agent, Warren Zeng, filed an affidavit saying that four of the original group of 10 visitors from China were still in Malawi. These four had been left behind when the rest were sent out of the country, as the plane was full and unable to seat them.
When Judge Nyirenda first took over the case, he granted an order preventing the four from being sent back to China and ordered the immigration authorities to allow them entry.
Later, in his written judgment on the case so far, the judge quoted Zeng’s statement explaining that at the time of the hearing, the remaining four Chinese visitors were in isolation to comply with the advice of the ministry of health. The entire group had been granted letters of approval by the Malawi authorities, Zeng said, and it had been arranged that their pre-approved visas would be issued on arrival. Armed with these letters of approval and a legitimate expectation that they would be allowed in, the group set off from China for their holiday in Malawi. They were part of an even bigger group from China and other parts of the world who shared the same flight. The group that had brought the application, was however, refused entry. No reason was given except that ‘something was wrong’ with the letters they brought with them concerning visa authorisation. The 10 were held in a ‘small space’ before six were put on a plane and deported. The following day the remaining four obtained a court order allowing them into Malawi.
Since then, the four have obeyed all the self-isolation guidelines of the ministry of health.
The travel agent said that while there had been ‘much talk’ that the decision to refuse them entry was related to the pandemic, this was not true. Malawi’s ‘state of disaster’ was issued on March 20 while the group had arrived earlier. On arrival, some members of the bigger group from China who had business residence permits or temporary employment permits, were allowed in, along with people ‘from diverse nations’ who were given entry. However, this group, who had come on holiday, were not allowed in.
His group had ‘gone to extra expense to come to Malawi’, and they had specially chosen this country for a holiday. Being sent back with no reason was neither fair nor constitutional, Zeng claimed.
In response, the regional immigration officer said he believed the visa letters were ‘fraudulently and irregularly issued’ and that his department was investigating. On that basis, it was decided to send them back to China. The last four had been quarantined but plans to send them back home were put on hold because of the court’s order that they be allowed to stay until the case had been completed.
Turning to the pandemic, the immigration official said Malawi had put ‘mechanisms’ in place to prevent its nationals from contracting or spreading the virus.
‘As a department, we came up with a resolution to refuse visas from all high risk countries’ of which China was one, he said.
Judge Nyirenda noted at this point that these two sworn statements, one from the travel agent and, on the other side, one from the immigration official, made up the totality of evidence before the court.
Outlining the argument that would be put up on behalf of the Chinese group if the issue goes to trial, counsel said they were detained by immigration officers as though they were prohibited immigrants. But they did not fall under the definition of ‘prohibited immigrants’ since the relevant sections of the Immigration Act did not apply to them and they were given no written reasons for the action against them.
Counsel further argued that the alleged forgery was an internal immigration department matter, that should be investigated without punishing the group that was denied entry: they had nothing to do with the alleged forgery.
The visas that were issued could not be cancelled without first giving the group a hearing. In addition, the declaration of the state of disaster could not have retrospective effect.
Counsel for Malawi’s immigration officials, on the other hand, said that the decision not to let them in ‘is for the welfare of all Malawians and is currently being practised across the world.’ The senior state advocate argued that, as Malawi is ‘gripped with the fear of coronavirus’, the best thing for the court to do is to 'send them back to China'.
He added that the Immigration Act is ‘indeed very old’ but that the department was ‘coping by innovating’ and that the law was ‘currently under review’.
Counsel for the Chinese group said he was baffled at the argument that the department did not follow the Immigration Act because it was outdated. ‘This is a country of laws. We do what the law says. We cannot decide not to follow the law because the law is old.’
The court considers the state of Malawi's legal framework in relation to a declaration of disaster and the rule of law
In his decision, Judge Nyirenda said the role of the judiciary was to ‘safeguard the purity of the law’ and stop violations of the law by anyone, even those in power. It would be wrong to say a judge was ‘unpatriotic’ for ‘refusing to defer to the whims of the executive’ or anyone else.
It would also be dangerous for democracy to agree with the suggestion by the state advocate, that the provisions of an outdated law, not yet repealed, should be ignored by the relevant department and that other innovations should be acted on. This proposal was ‘very dangerous’ to democracy and the rule of law.
Other authorities appeared to share the views of the immigration department that laws could be ignored, even if not repealed, he said. ‘This line of reasoning is familiar and is getting louder and louder. It is a recurring refrain … from the authorities whenever they have chosen not to act in accordance with the … law.’
It was correct that both the Public Health Act and the Immigration Act were ‘very much outdated’, he said. All Commonwealth countries had long since replaced their versions of these two laws, inherited at independence.
The judge then looked at various powers given under legislation that would be relevant in a situation like the current pandemic. This included the Disaster Preparedness and Relief Act that came into effect in 1991. It empowers the relevant minister to make regulations needed to give effect to the Act, but though it would be reasonable to expect that many regulations had been made since it became law in March 1992, the judge said he had been shocked to discovered that not a single regulation had been made over the last 20 years.
He also pointed out that because the law came into effect before the present constitution, there was ‘no wonder’ that some ‘glaring discrepancies’ could be found in the law, particularly in relation to the constitutionally enshrined protection of human rights.
The immigration law dates back to 1964 and, after quoting its key provisions, the judge noted that ‘needless to say’ the law is ‘archaic’.
The Public Health Act of 1948 was last amended in 1975. Reviewing the law, the judge said that like the immigration law, the health legislation contains provisions that are ‘utterly obsolete’.
After examining other legislation, Judge Nyirenda turned to rules introduced as part of the state of disaster by local authorities. Measures meant to bind the people of the region could not be made ‘other than through making subsidiary legislation’, he said. He stressed that he was not questioning the need for introducing measures, but was rather asking about apparently arbitrary local decisions issued at local level, and whether they can be said to be properly made. ‘I entertain grave doubts that measures carrying legal consequences can be introduced’ as has happened in several areas.
When a court asked questions such as these, it did so to ensure the rule of law in Malawi, he said, and not because a judge was ‘unpatriotic’.
Grave and systematic human rights typically occurred during public emergencies and so there was considerable international law on the subject. Malawi’s constitution had incorporated these instruments. Against this background, the court had to consider whether the statements concerning the coronavirus made about the applicants ‘were motivated by racism or some other reason’.
It was also clear from the international instruments binding on Malawi, that the procedure for a declaration of emergency must be ‘clearly laid down in the law.’ It must be formally proclaimed and must involve the ‘political organs of state’, that is, Parliament and the executive.
He also stressed that these international instruments required that remedies such as habeas corpus, had to remain operative during the emergency period so that protection of the individual was retained ‘with respect to rights and freedoms which are not or could not be affected during the emergency, as well as other rights and freedoms which may be been attenuated by emergency powers’.
Given the state of the law, what was the court to do faced with the application by the four detainees?
The group sought, in the interim, a temporary remedy until their rights were finally decided by the courts.
He said he was in no doubt there were many weighty legal issues to be debated at the hearing of the judicial review proceedings for which the detainees had asked.
Among them he listed the following:
- The four claimed they were detained on arrival without being given any reason. This had not been challenged by the state officials. The constitution promised every person (not just every citizen of Malawi) the right to fair administrative action. This was therefore an issue to be tried.
- There was also the question of alleged discrimination. Again, there was evidence that was not contested, with the four claiming they were in a group of different nationalities that all arrived on the same flight. The other nationalities were allowed into Malawi, along with some of the Chinese. The four believe they were discriminated against on the basis of race, nationality or status. ‘I am inclined to agree with them that the court needs to inquiry into the question of the real reason for denying them entry into Malawi,’ said the judge.
- Immigration officials themselves said that the department ‘came up with a resolution to refuse visas from all high-risk countries’. This ‘resolution’ raised many questions, said Judge Nyirenda. These included whether entry into Malawi could be prohibited via ‘resolution’; who in the department actually made the resolution, and under what law this ‘resolution’ was made.
- Next was the issue of section 4 of the Immigration Act. It was 'most questionable' that this provision applied to the four detainees since there was no evidence that they were ‘infected, afflicted with or suffering from a prescribed disease’. No Government Gazette had been issued with an official notice under the Immigration Act listing coronavirus as a prescribed disease for the purposes of the Immigration Act.
- On the question of whether the four were given written reasons for their detention the question was even more complex. The Senior State Advocate had conceded in his submissions that they were not given reasons ‘because the Immigration Department did not have enough time to do so’. But that concession was made in submissions and not as part of the answering affidavit. ‘It is trite that submissions do not amount to evidence.’
Meanwhile, what should the court say about damages? The detainees had come to Malawi ‘to explore the beauty’ of the country. This meant damages were not an adequate remedy. ‘Out of all the countries in the world,’ they had chosen to visit Malawi. ‘I do not agree … that refunding the money they spent on air tickets, accommodation etc. would constitute an adequate remedy.’
In cases like this where personal liberty was at stake, the balance of justice tilted in favour of preserving the status quo. Thus, he would allow the application for continuation of the interlocutory injunction, and the detainees were to be permitted to remain in Malawi until a further order of the court.
In an unusual coda to his judgment, Judge Nyirenda said that all ‘well-meaning lawyers’ would agree that the arrest and detention of the four ‘is a big blessing in disguise’. Their arrest had led to the case being considered which in turns enabled the court to analyse the law in relation to the declaration of a state of emergency and a state of disaster. That would go a long way ‘towards the development of our jurisprudence on the subject’.
He had said enough in his decision to conclude that Malawi’s legal response to disasters ‘is not only archaic and obsolete but it is also in total shambles’.
‘Almost all, if not all, applicable laws are completely outdated.’
‘The coronavirus has caught the authorities with their pants down – witness panic stations everywhere. How the authorities expect to effectively combat the epidemic in 2020 with laws enacted in 1948, 1964 and 1991 boggles my mind. This is not the time to start questioning patriotism of fellow Malawians, but to collectively pull up our socks so that we can fully apply our minds and energy to the preparation of necessary legislation.’
Then he warned about 'the issue of political will’. A 1998 law commission report included ‘a number of very important recommendations’ related to new legislation that was required to ensure laws complied with the constitution. More than 22 years later, however, nothing had been done about the recommendations. ‘To my mind, the problem cannot be that of lack of time to consider the draft Bills or inadequate technical expertise to finalise the preparation of the draft Bills. The problem has to lie elsewhere.'
Then he criticised the way the state of disaster had been declared, 'without even bothering to tell Malawians in clear terms the law under which the declaration is made'.
He added a further sting in the tail, saying that having taking the judicial oath he was ‘duty bound’ to give his advice.
As matters now stood, he warned, the government had to move with speed to make the changes needed to the laws, otherwise there was the possibility that the state would have to ‘pay colossal sums of money in compensation for violating human rights as a result of imposing measures’ that were not ‘anchored in law’. He was particularly concerned about local authorities that appeared to make up regulations at will, not backed by any legal framework. Given their financial situation, they would not be able to pay the huge compensation that could be ordered if courts found ‘the invasion upon peoples’ liberties and properties was not backed by law.’
The judiciary was charged by the constitution to ensure that the rule of law was upheld at all times, before, during and after an emergency, and the courts were entitled to inquire into the legality of measures taken by the state in response to an emergency or disaster.
A declaration of emergency did not give the state carte blanche to exercise power indiscriminately. The limits of the law had to be observed. This would include citing the law under which a state of disaster is declared, at the time it is announced. Yet no such indication was made when the emergency was declared and the court was still without any indication as to the law that had been used to declare the state of disaster.
The court would be the first to join the state in fighting the coronavirus epidemic. It would help ensure that all necessary measures, put in place by the relevant branch, were enforced. ‘However, it has to be made clear that the court will not be part of a fight against the epidemic that is being waged outside the dictates of the law. Equally true, the court will not endorse measures that are unconstitutional.’