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Press Statement on The State of Public Health and The Need to Uphold the Constitutional Order of The Republic

Apr 02 2020

The Malawi Law Society (“the Law Society” or “MLS”) in exercise of its statutory mandate under section 64(d) of the Legal Education and Legal Practitioners Act “to protect matters of public interest touching, ancillary or incidental to law” and noting the state of the law on public health in the wake of world-wide pandemic of corona virus and/or Covid-19, hereby delivers the present statement for urgent attention of all parties concerned and for the sake of protection of public health and the people of Malawi.

I. BACKGROUND:

1. MLS notes that on 18th May 1994, the people of Malawi adopted the Constitution of the Republic of Malawi as the ultimate and binding social contract between the people as a whole and their governors or those aspiring to be their governors in all or any of the branches of Malawi government. Under sections 13(c), 16 and 45 in their Constitution, the people of Malawi entrenched an inalienable and non-derogable right to life for all citizens and directed the state to provide adequate health care commensurate with the needs of the society and international health standards from time to time.

2. Against this Constitutional framework, the Law Society has noted the worldwide emergence of Covid-19, its threat to public health in Malawi and the standard measures being adopted all over the world to contain the virus. The Law Society notes that under Malawi law, the main statutory guideline is the Public Health Act enacted in 1968 followed with piecemeal amendments resting with the last amendment in 2015.

3. The Law Society considers that the Public Health Act, 1968 as amended lastly in 2015, while it may represent good law, is way behind time in seeking to protect public health of the people of Malawi at the moment. Its informing scientific knowledge may not match with the pace of the Covid-19 as reported in international and local media. It is self-evident that these are extra-ordinary times requiring extra-ordinary measures to contain and/or avoid this global pandemic which seems to know no political nor class divisions or any division at all in or among nations. For Malawi this public health threat requires national unity against a common enemy constituted in the virus and a standard, predictable and uniform code of conduct suited to the prevailing circumstances.

4. The Law Society recognizes the responsibility of the President of the Republic of Malawi under section 88 (2) of the Republic of Malawi Constitution to provide executive leadership in the interest of national unity in accordance with the Constitution and the laws of the Republic.

II. SUGGESTED SOLUTIONS AND WAYFORWARD: GIVEN this background, and the recent address by the State President confirming the recording of 3 cases of Covid-19 in Malawi, MLS considers that it is a matter of national interest and a requirement of public safety and health and for the preservation of the right to life for all under the constitutional order to make the following public observations, calls and/or recommendations:

(i) THAT political leaders across the political divide must put aside their partisan interests and consider the plight of the populace should the corona virus infest the Republic. They must consider who they are going to be leaders over should the virus uncontrollably penetrate the nation. They must devise lawful and unified measures to contain the situation and manage state affairs in the public interest.

(ii) THAT we call upon the State President to initiate genuine and candid dialogue with political leaders of the major opposition parties to unite the people of Malawi in the fight against the Covid-19. We also call upon leaders of all political parties to hearken such calls, if made, and to rally behind a cause that seeks to and achieves protection of all citizens from the threat of the Covid-19 pandemic.

(iii) THAT we call upon the Legislative and the Executive arms of the Government to consider consulting with relevant health experts and further consider a review of the existing public health laws in the light of the current pandemic and immediately generate, deliberate and pass and for the state President to assent to a legislative framework akin to the Corona Virus Act, 2020 of the United Kingdom or similar legal initiatives but suited to the current circumstances of the Republic of Malawi that would standardize and regulate conduct guaranteeing public health and protecting as well as lawfully managing other matters of public interest likely to be or already affected by the corona virus and/or Covid-19 pandemic.

Dated this 2 nd day of April 2020

                                 

BURTON C MHANGO                                            MARTHA ETTA KAUKONDE

CHAIRMAN                                                               SECRETARY

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