Johannesburg, Arusha, and Lilongwe
08 April 2020
The Southern Africa Human Rights Defenders Network (SAHRDN or the Defenders Network) and the Pan African Lawyers Union (PALU) have welcomed the ruling by African Court on Human and Peoples’ Rights (African Court) sitting in Arusha, to suspend the enforcement of the decision of the Malawi Supreme Court of Appeal to slap Youth and Society (YAS) Executive Director and frontline human rights defender, Charles Kajoweleka (Kajoloweka) with a K21.6 million (US$ 29 000) costs order. Kajoweleka had filed a case before the national courts, seeking orders that President Peter Mutharika fires his then Cabinet Minister George Chaponda following allegations of corruption in what was referred to as the “maizegate”, a controversial 2017 maize import scandal that caused losses of millions of Kwacha to Malawian taxpayers. The African Court made a finding that the costs order if executed against Kajoloweka before the case is finalised on its Merits would lead to potentially irreparable harm to the human rights defender (HRD). This would, if it happened, amount to indirect punishment to Kajoloweka for having challenged President Mutharika to act against an allegedly corrupt Minister.
The conduct of Kajoweleka to sue President Mutharika on available evidence to take decisive action against a Minister involved in possible corruption and siphoning of public resources was very responsible and certainly undisputedly in the public interest to promote good and accountable governance” stated Arnold Tsunga, the SAHRDN chairperson. “ On the face of it, such responsible and courageous conduct to demand public accountability in a very plausible case of corruption costing the country millions of Kwacha in taxpayers money did not warrant such huge punitive costs, let alone any adverse costs order at all and this naturally created the perception that Kajoloweka was facing s reprisal for speaking truth to power” added Tsunga.
The decision by the Supreme Court of Appeal to award such high punitive costs order in a strong public interest case has a potential chilling effect on HRDs or citizens who in the future would want to use public interest litigation as a legitimate vehicle to not just pursue remedies for human rights violations, but also to enforce separation of powers and the rule of law by subjecting questionable executive conduct, omissions or commissions to judicial scrutiny and oversight as a necessary check and balance in a modern democracy. The impact of the costs order, if it had been executed, would have been an immediate threat of liquidation of Kajoloweka’s estate. This would be the message that would be understood by the HRDs community and citizens of Malawi, especially those in the good and accountable governance sector. On this basis Kajoloweka then decided to take the Malawi Supreme Court decision for scrutiny to the African Court, supported by his lawyers from PALU, under the instruction of SAHRDN.
Having come to the conclusion that if the Malawi Supreme Court of Appeal Order is executed upon Kajoloweka, his immovable property and personal belongings may never be recovered thereby causing irreparable harm, the African Court ruled to;
a) Stay the enforcement of the order of costs by the Malawi Supreme Court of Appeal against the Applicant (Kajoloweka) pending the finalisation of the application on the merits.
b) [Malawi to] report to the Court within (15) days from date of receipt of this order on the measures taken to implement it [African Court order].
SAHRDN and PALU raise concern over the trend of awards of punitive costs against public interest litigants, which appears to be on the increase in the Supreme Court of Malawi. This is a cause for concern as it not only affects the rights to equality before the law, equal protection of the law, fair trial and access to justice, but it also generally shrinks the civic space which is the oxygen of citizens and human rights defenders to meaningfully participate in national affairs or issues that affect them. The courts should remain independent and impartial and be the foremost guardians for the protection of civic space and human and peoples’ rights.
The use of Public interest litigation as a tool to advance and protect human and peoples’ rights and the rule of law has become widely accepted as part of addressing inequality, injustice and impunity in African and other societies and to raise issues of public concern” stated Don Deya the Chief Executive Officer of PALU. “We hope that by taking this emerging jurisprudence on costs orders in public interest litigation cases in Malawi (and elsewhere) for scrutiny by the African Court, we are helping the Malawi judiciary (or any other jurisdiction) to re-examine such jurisprudence and evaluate if it is reasonably necessary and justifiable in a democracy” added Deya.
Malawi has a very good record of signing and ratifying international instruments that guarantee the promotion and protection of human and peoples’ rights and the opening up of civic space. The notable international instruments that Malawi has signed and ratified guaranteeing the rights: to establish good and accountable governance; an independent and impartial court system; to a fair trial; to equality and equal protection of the law; to freedom of expression and to receive and disseminate information include the International Covenant on Civil and Political Rights (ICCPR), the Constitutive Act of the African Union, the African Charter on Human and Peoples Rights (ACHPR), with its two Protocols, i.e. the Protocol on the Establishment of the African Court on Human and Peoples’ Rights; and the Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa (Maputo Protocol). Malawi has also made the Declaration, under Article 34(6) of the aforementioned Protocol establishing the African Court, which allows its citizens and NGOs direct access to the African Court if they felt that their rights were being violated in Malawi and they have exhausted local remedies.
SAHRDN and PALU therefore jointly call on the Malawian authorities to respect and fully implement the interim Orders of the African Court including reporting to the African Court on measures of compliance as directed.
Read more on the court ruling here.
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For more information please contact Washington Katema, SAHRDN Regional Programmes Manager at firstname.lastname@example.org or +27 73 620 2608 and or Donald Deya, PALU Executive Director at email@example.com or +255 787 066 888