S (On application of Jane Kennedy and Others ) v The President of Malawi and Others (Judicial Review Cause 3 of 2021) [2021] MWHC 212 (25 May 2021)

IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CIVIL DIVISION JUDICIAL REVIEW CAUSE NO 3 OF 2021 BETWEEN THE STATE (ON APPLICATION OF JANE KENNEDY............................................................................................. CLAIMANT WILLY KAMALA............................ 2™> CLAIMANT WAKAWAKA NIGHT CLUB.............................................................................................. 3rd CLAIMANT CENTER POINT NIGHT CLUB..........................................................................................4TH CLAIMANT CULTURE CLUB............... ....................... 5™ CLAIMANT MOGASD & MWANJE NIGHT CLUB..............................................................................6th CLAIMANT AND THE PRESIDENT OF MALAWI.......................................................................................... 1«t RESPONDENT MINISTER RESPONSIBLE FOR HEALTH..................................................................... 2*» RESPONDENT INSPECTOR GENERAL OF POLICE...................................................3R» COMMANDER OF THE MALAWI DEFENCE FORCE................. 4*n THE ATTORNEY GENERAL....................................... ,5*n RESPONDENT RESPONDENT RESPONDENT CORUM: JUSTICE R. M CHINANGWA Taulo Counsel for the Claimants Mwafulirwa Counsel for the Respondents Chitao Court Clerk RULING ON APPLICATION FOR JUDICIAL REVIEW AND AN ORDER OF INTERLOCUTORY INJUNCTION 1. Introduction The claimants seek leave for judicial review and an interlocutory injunction. In the first application the applicants seek permission to apply for judicial review on the decision: a) To declare a partial lockdown without attendant declaration of state of emergency when the lockdown amounts to a substantial derogation from fundamental rights under the Constitution b) To restrict the time of operation of bars and night clubs without consultation from the owners of the bars and nights clubs is punitive and unfair. c) To restrict the time of operation of bars and night clubs and movement of people without providing bailout package to the bars and night clubs as well as social security interventions to marginalized groups in our society. d) To promulgate Public Health (Corona Virus and COVIS 19) Prevention, Containment and Management) Ammenment Rules, 2021 and to implement them without parliamentary oversight as required by section 58 of the Constitution e) To promulgate and implement the Public Health (Corona Virus and COVIS 19) Prevention, Containmentr and Management) Ammenment Rules, 2021under section 31 as read with section 29 of the Public Health Act where the Rules expressly state that they authorize the taking measures which are outside the scope of the parent statutory provisions is ultra vires. In summary it is argued that the defendants’ decisions will greatly affect their businesses and livelihood as their right to economic activity, movement and development has been infringed on account that the business premises will be closed early and no bailout packages have not been made to the claimants. Regarding the interlocutory injunction, the claimants made no separate application strictly speaking but have raised the matter within the application for judicial review. The Defendants opposed both applications. In summary it is argued that the decisions made are informed by global public health knowledge on the pandemic; the rules are temporary and reviewed periodically to contain and manage the pandemic which was observed to have flared during festive periods. It was observed that the claimants were allowed to sell alcohol to consumers within given hours for them to consume in their homes. 2. Issue for Determination This court has to determine whether or not to grant a) leave for judicial review b) an interlocutory injunction. These will be dealt with in turn. 3. Analysis of Law and Evidence On judicial review the court is guided by, Order 19 rule 20 of the Courts High Court Civil Procedure Rules 2017. Under this rule the court has to consider the following: i. There must be a law, an action or a decision of the Government or a public officer for conformity with the Constitution where a right, freedom, interests or legitimate expectation of the Claimant is affected or threatened, or ii. A decision, action or failure to act in relation to the exercise of a public function in order to determine its lawfulness; its proceduralfairness; itsjustification of the reasons provided, if any; or badfaith, if any, where a right, freedom, interests or legitimate expectation of the Claimant is affected or threatened. Hi. A person making an application for judicial review should have sufficient interest in the matter to which the application relates. iv. an application for judicial review should be filedpromptly and shall be made not later than 3 months of the decision. In this case it is not in dispute that the respondents made decisions which affected the claimants who have sufficient interest in the matter. It is this courts view that that a decision having been made by a public authority regarding how night clubs are to operate, the same is subject to judicial review. It should be noted that judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached. It is not really concerned with the conclusions of that process and whether those were ‘right*, as long as the right procedures have been followed. The court will not substitute what it thinks is the ‘correct* decision. This may mean that the public body will be able to make the same decision again, so long as it does so in a lawful way’ (source https://www.judiciary.uk/you-and-the-judiciary/judicial-review/). This being the case, the decision having been made the same is amenable to judicial review because the court has to determine its lawfulness; its procedural fairness; its justification of the reasons provided. It is on this premise that leave for judicial review is granted. On the injunction The claimants made an ‘application’ for an injunction against the decision made by the respondent. It should be noted that a separate application supported by an affidavit should have been filed. In this case it means procedurally there is ho application for an injunction as such the court cannot make a decision where there is no application or dispute before it: The State (On application of Francis Bisika) and the Malawi Communications Regulatory Authority Judicial Review Case Number 71 of 2017. 4. Finding The application for judicial review is granted against the respondent. The application for an interlocutory injunction is dismissed. The applicants are to serve the application on the defendant by 4th June 2021. The defendant to file defence with a sworn statement by 18th June 2021. A scheduling conference will be held on 25th June 2021 at 8am. Pronounced this 25th May 2021 at LILONGWE 4