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Malawi: High Court Temporarily Blocks COVID-19 Lockdown

(Apr. 29, 2020) On April 17, 2020, the High Court of Malawi temporarily suspended implementation of a proposed 21-day lockdown issued in response to COVID-19, pending judicial review. (S v. President of Malawi and Others; Ex Parte: Kathumba and Others (Judicial Review Cause No. 22 of 2020) [2020] MWHC 7 (17 Apr. 2020).) Minister of Health J.C.M. Mhango had ordered the three-week national lockdown from April 18 through May 9.

The issuance of the minister’s lockdown order followed two presidential declarations. On March 20, 2020, President Arthur Peter Mutharika declared a state of national disaster under the Disaster Preparedness and Relief Act, which authorizes such declarations “[i]f . . . it appears to the President that any disaster is of such a nature and extent that extraordinary measures are necessary to assist and protect the persons affected or likely to be affected by the disaster.” (§ 32.) President Mutharika ordered all schools to close as of March 23; barred gatherings of more than 100 persons, including those in churches and for weddings and funerals; and suspended the issuance of visas to citizens of countries “highly affected by coronavirus,” among other restrictions.

The government then declared coronavirus a “formidable disease” under the Public Health Act (PHC) on April 1, which gave the minister of health authority to issue rules aimed at the control or suppression of infectious disease. (PHC §§ 30, 31.) Based on this authority, the minister of health issued the Public Health (Corona Virus Prevention, Containment and Management) Rules, 2020, one week later on April 8, 2020.

The Public Health Rules acknowledge that the minister has the authority to declare a lockdown but notes that he is also required to specify excepted persons, allow for the provision of essential services, and recommend ways for persons to access essential goods and services during the lockdown. Specifically, the rules state that during a lockdown all persons other than those excepted by the minister must be confined to their place of residence, except to perform an essential service; obtain essential goods or services; seek medical attention; visit pharmacies, food supply stores, courts or banks; or get physical exercise, as long as no more than three persons exercise together. The rules also prohibit anyone from entering or leaving a restricted area, traveling from one restricted area to another restricted area, or selling or purchasing alcoholic beverages. (§ 11.)

In addition, all shops and businesses not classified as essential, all open markets and informal trading activities, and all entertainment businesses (including bars, nightclubs and cinemas) must remain closed. Restaurants, fast food vendors, and coffee shops must remain closed with the exception of providing takeaway services. (§ 11.)

The rules include a schedule containing a long list of essential services that may continue to operate during the lockdown. These include various medical services (including ambulance services, pharmaceutical services, and hospital kitchen and laundry services), firefighting, and law enforcement. Also exempt are those engaged in agriculture production and value chains, utility providers, manufacturers of health and hygiene products, and those in the food and nonalcoholic beverage services sector. (§§ 2 & 10; Sched.)

Four applicants challenged the minister’s decision by seeking the High Court’s permission to apply for judicial review and a temporary injunction against the government’s lockdown order in the interim. (S v. President of Malawi and Others; Ex Parte: Kathumba and Others.) In a short order issued on April 17, the Court granted the applicants leave for judicial review and temporarily suspended implementation of the lockdown.

One of the applicants, the Human Rights Defenders Coalition, noted that they sought the injunction not because they are against the lockdown, but precisely because the government failed to put in place measures “to cushion the poor during lockdown.” According to news reports, following the announcement of the lockdown, “thousands of informal traders in the cities of Mzuzu and Blantyre took it to the streets to protest against a coronavirus lockdown with placards that read ‘Lockdown more poisonous than Corona’ and another ‘We’d rather die of corona than die of hunger.’”