Injunctions against by-laws irk councils

Malawi Local Government Authority (Malga) has fumed at a flurry of court orders stopping the enforcement of city and district councils’ by-laws, warning that the actions are hurting a majority at the expense of few beneficiaries.

Malga executive director Hadrod Mkandawire said this in an interview on Tuesday against a background of a recent court order stopping Lilongwe City Council from kicking out street vendors and children.

Blantyre City Council has also had its fair share of the court orders which include the one that stops eviction of encroachers in Soche Hill, banning of event gardens businesses in residential areas and operation to order property owners in central business districts of Blantyre and Limbe to demolish structures deemed substandard.

Mkandawire said: “It is unfortunate and regrettable that people continue to undermine the Constitution and legal mandate of the local government authorities.

“At the end of the day, the consequences are affecting the greater number of Malawians when the benefits of those injunctions are only going to a few people.”

He cited Soche Hill encroachment as one regrettable case as its surrounding dwellers were heavily hit by Cyclone Freddy which ravaged the Southern Region in March this year.

“In the case of Soche Hill, there is no ward councillor or any council officer who died from that accident. Those who died were ordinary people. The council had tried to prevent that in the first place.

“At the end of the day, it is inconveniencing and disenfranchising our fellow Malawians for the sake of a few individuals.”

Mkandawire, a lawyer by profession, also faulted the procedures that aggrieved parties followed to obtain an injunction, saying: “What we have noted is that when applying for such court orders, in most cases the applicants suppress material facts.

“The courts unfortunately rely on half-baked information to grant an ex parte injunction restraining local government authorities to undertake particular actions that are fully backed by the law.”

But in a separate interview legal scholar Edge Kanyongolo said court injunctions are critical to justice delivery and the councils cannot be exempted from them.

“What is important is that a party to whom it has been issued should use their legal arguments to challenge the injunction. But there’s no way we can say councils should no longer be subject to injunctions,” he said.

Kanyongolo, who taught law at the University of Malawi, observed that councils and most of those blocked by injunctions are not aggressive enough to ensure they vacate them.

“Temporary injunctions effectively turn into permanent ones simply because the person whom it was issued never bothered to challenge it. So, I think they should be more aggressive,” he said.

Mkandawire conceded that the councils have not been aggressive enough to remove the injunctions. He attributed the situation to a weak legal system.

“Blantyre City Council has maybe one or two lawyers, Lilongwe has only one. These legal officers are overwhelmed. In Mzuzu we don’t even have a lawyer and Zomba as well. The applicants rely on these capacity gaps to suppress these material facts and get the injunctions,” he said.

Mkandawire said Malga is working towards strengthening its legal structure to “critically analyse some of these orders that are being obtained”.

On his part, another lawyer Gradwell Majekete argued that injunctions against local authorities are a result of unfair procedures in by-laws enforcement.

“All the times someone says let’s do judicial review, there is a public body or public officer who did not use their powers properly. Sometimes it’s about the use of powers which one does not have.

“The councils have legal mandates to form by-laws and enforce them. However, they abuse the legal mandate because it comes with political pressure and you discover that the implementation is done hurriedly,” he argued.

The High Court of Malawi last week granted informal traders an order to start judicial review proceedings to challenge the Lilongwe City Council’s decision to evict them from plying their trade along the streets.

The traders, who also had their merchandise confiscated by the council, sought the court relief after the council started evicting them and confiscating their commodities on May 2 2023 following a public notice it issued warning anyone found trading in undesignated places.