The High Court in Lilongwe yesterday reserved its ruling to ‘as soon as possible’ in a case where the Attorney General (AG) Kalekeni Kaphale sought to stop demonstrations for causing violence.
The AG had also petitioned that demonstration organisers, the Human Rights Defenders Coalition (HRDC), should pay K2 billion as surety to cover damages incurred during demonstrations.
HRDC is continuing with its series of nationwide protests today to force Malawi Electoral Commission (MEC) chairperson Justice Jane Ansah to resign for presiding over flawed May 21 Tripartite Elections which saw President Peter Mutharika re-elected.
In Lilongwe, the demonstrations—expected to witness masses flooding the 15-kilometre stretch from Lilongwe Community Centre through Kamuzu Procession Road to Paul Kagame Highway to Area 18 Roundabout— were to culminate into an overnight vigil near Parliament Building tonight.
The High Court was supposed to give a ruling on Kaphale’s petition in which he demanded that HRDC should not hold the demonstrations because they are connected with violence and destruction of property whenever they are held.
He pleaded with the court that if HRDC insists on staging the demonstrations, they should deposit a K2 billion surety to cover damages incurred during protests.
As we went to press at 9pm, the judge had not made the ruling, and there were no lawyers at the court.
But HRDC denied any connection with violent protesters, stressing that its protests are done peacefully. It added that the AG’s plea, and Police Inspector General (IG) Rodney Jose’s court demand that the HRDC should stop staging the demonstrations breached Malawians’ constitutional right to peaceful protesting over grievances.
Yesterday, the matter was heard in chamber, hence members of the press and HRDC who thronged to the court, were not privy to the deliberations.
But in an interview, HRDC lawyer Khwima Mchizi said the court and parties agreed to focus on the AG’s application, as it will also have an implication on the HRDC application.
Lawyers from the AG’s office refused to speak to the press after the hearing.
However, Mchizi told the press the AG’s office had told the court that the demonstrations have to be ended because of the violence associated with the previous demonstrations. They also reportedly pleaded that the demonstrations should be shelved until the Constitutional Court finishes hearing a referral case on the disputed election results.
As a response, Mchizi said the HRDC legal team told the court the Constitution, which is the supreme law of the land, and previous court rulings are clear that the State has no powers to limit the constitutional rights to assembly and the staging of peaceful demonstrations.
He said: “The arguments are three-fold; the main argument is that all demonstrations have resulted in one form of violence or the other. The other reason is that there is a court case.
“Our response is that when dealing with the issue at hand, we are dealing with human rights. There is a test in Section 44 (1) of the Constitution which provides a test on how the rights in the Constitution can be limited and we believe the State has failed to satisfy that test.”
On the HRDC application, Mchizi said no date has been provided by the court but hinted on the possibility of the application not being pursued if the court decides against the AG’s application.
Presiding judge Kenyatta Nyirenda did not indicate the time for the ruling, according to the HRDC lawyer, but indicated he will deliver the ruling “as soon as possible.”
“The application is twofold, on Friday, the court granted for leave of the judicial review and within the same application, we applied for a stay order—staying the decision to demand by the Police IG.
“So, technically at the end of the day, once this matter is handled by the judge then we will not be dealing with the matter by the IG as he is part of the same government that has made the AG application,” he explained.
The HRDC has insisted that it will proceed with what it calls mega demonstrations tomorrow and Wednesday in the three cities despite the AG’s court order and the police chief’s demand, through a July 26 letter signed by Jose, demanding a stop to the protests.
Police again cited massive destruction of public and private property and a lack of capacity by the security agency to police the protests as the justification.
Meanwhile, members of HRDC, including chairperson Timothy Mtambo, and Gift Trapence are reportedly receiving threats from purported government sympathisers.
According to some of the text messages The Nation has seen, directed at Trapence, some anonymous senders have been threatening to deal with the government critics by, among others, invading their homes.
In an interview yesterday, Trapence said such threats will not deter the CSOs for demanding accountability from government.
One of the text messages, from a South Africa-registered number threatened Trapence that the HRDC vice-chairperson will specifically be targeted through a break-in at his home during today’s planned protests.
Said Trapence: “There are death threats. We investigated the person and we know how we can take legal action against them. They are based in South Africa but no one is above the law; but we haven’t reported the matter to police because we are yet to be assisted on several complaints we raised like recent attacks at CHRR offices.”
Major shops in Lilongwe were yesterday evening crammed with customers in apparent panic shopping and some offices planned to be closed today, when mega demonstrations are expected to be held.
On the city’s main roads there were unprecedented traffic gridlocks until late in the evening.