As Human Rights Defenders Coalition (HRDC) braces to resume nationwide demonstrations this week, the Attorney General (AG)’s office has insisted that the protests are premature. However, but legal experts have said the rights body is free to protest.
In a telephone interview yesterday one of the lawyers for the AG’s office Neverson Chisiza faulted HRDC for planning to hold fresh demonstrations before the two sides submitted their resolutions to the Malawi Supreme Court of Appeal.
HRDC has been holding demonstrations to force Malawi Electoral Commission chairperson Jane Ansah to resign for allegedly presiding over flawed May 21 presidential elections, but a 14-day moratorium issued on August 27 by Justice Lovemore Chikopa of the Malawi Supreme Court of Appeal suspended the protests pending discussions on ensuring violence-free protests.
Chisiza said yesterday the 14 days expired while Chikopa was outside the country; hence, HRDC should have waited until they reported back to the court for a consent order.
He said: “Our understanding is that the 14 days expired while the judge presiding over the case was outside the country. As such, we expected that we should first submit the points that we agreed to the court and probably get a consent order.
“We understood that the spirit of the order was that we should have proper safeguards before holding any demonstrations. But our colleagues rushed to announce the dates for demonstrations even before we reported back to the court. There was miscommunication, the judge only arrives today and this was communicated even to HRDC lawyers [yesterday].”
However, last week AG Kalekeni Kaphale was quoted as having said the judge had returned to office on Tuesday last week.
However, some lawyers have said HRDC is free to hold public demonstrations even before the resolutions are submitted to the court.
Lawyers Alfred Majamanda and John Gift Mwakhwawa said HRDC was at liberty to organise what it calls Jane Ansah Must Fall demonstrations after the expiry of the 14-day moratorium.
Majamanda said if the court did not order that the report should be submitted before the resumption of demonstrations, HRDC was not treading on a wrong path.
He said: “It all depends on what the order said. If it specifically set the submission of the resolutions of the meeting between the AG and HRDC as a condition precedent, then demonstrations cannot be held. But if it did not put the resolutions as a pre-condition for the resumption of demonstrations, then there is nothing wrong in what HRDC is doing.”
The order in part reads: “During the said time [14 days], the parties hereto shall hold negotiations to determine a manner in which the ‘Respondents’ [HRDC] exercise of their rights in Section 38 of the Constitution can be had without undue incidents of violence and crime…”
Majamanda’s view was echoed by Mwakhwawa, who said the order was for the two parties to discuss means of holding peaceful demonstrations.
“As I understand it, there are no more leagl impediments for HRDC to organise demonstrations. After the moratorium expired, there should no longer be any impediment to stop them from going ahead. Even the argument that some issues were not agreed upon should hold no water because the court do not have powers to force people to agree on any matter.”
When contacted yesterday, HRDC lawyer Khwima Mchizi said he could not comment on the dates of arrival of the presiding judge.
He said: “In my view, the order was very clear that after 14 days HRDC was free to organise demonstrations.”
Meanwhile, HRDC chairperson Timothy Mtambo said in a separate interview his organisation will go ahead with the planned demonstrations from Wednesday to Friday this week.
“What we know is that the 14 days expired and after that we are free to organise demonstrations by making use of the points that we agreed with the AG’s office.
According to Mtambo, HRDC has submitted letters informing all city councils of the demonstrations and that some district councils will receive the letters this week.
The AG’s office and HRDC lawyers held a meeting last week in Lilongwe where they discussed modalities of how to avoid violence during demonstrations. Before last week, the meeting had to be postponed several times due to security concerns.
The Malawi Supreme Court of Appeal made the order following an application by the AG’s office which cited violence and looting during some of the HRDC’s protests aimed at forcing Ansah to stand down.
HRDC and opposition political parties accuse Ansah, who is also a Justice of the Malawi Supreme Court of Appeal, of presiding over an allegedly flawed electoral process