Mayor Jomo orders Limbe Market traders to clear unauthorised structures or face demolition

Blantyre City Mayor Isaac Jomo Osman's directive for Limbe Market traders to remove unauthorised structures by 8 July or face demolition highlights a critical legal intersection in Malawi. This development underscores the ongoing tension between local government's mandate for urban redevelopment and the constitutional rights of informal traders. The situation brings to the fore questions of property rights, administrative fairness, and the procedural requirements for lawful demolition under the Local Government Act and the Physical Planning Act, particularly in light of constitutional guarantees against arbitrary deprivation of property and the right to procedurally fair administrative action. Legal professionals must navigate these complex issues, considering potential avenues for judicial review and the implications for urban planning and informal sector livelihoods.

Blantyre City Mayor Isaac Jomo Osman has issued a stern ultimatum to traders operating at Limbe Market, demanding the removal of all unauthorised structures by 8 July 2026, failing which the Blantyre City Council (BCC) will proceed with demolition. This directive forms part of the city's broader strategy for market redevelopment and urban renewal, aiming to bring order and improved infrastructure to key commercial areas. The announcement, made following a meeting with city officials, signals a firm commitment from the council to enforce urban planning regulations.

This development, while ostensibly a matter of municipal enforcement, carries profound legal implications for the affected traders and the broader framework of administrative law and property rights in Malawi. The impending demolitions raise critical questions about the extent of local government powers, the procedural safeguards afforded to citizens, and the constitutional protection of property and economic activity. For legal practitioners, this scenario presents a complex interplay of statutory interpretation, constitutional rights, and the principles of natural justice.

This article will delve into the legal framework governing such municipal actions in Malawi, analysing the powers of local councils, the rights of affected traders, and the avenues for legal recourse. It posits that while local authorities possess statutory powers to regulate urban development, the exercise of these powers must strictly adhere to constitutional principles of administrative justice and protection against arbitrary deprivation of property, necessitating a delicate balance between urban planning objectives and individual rights.

The legal authority for local councils in Malawi, including the Blantyre City Council, is primarily derived from the Local Government Act (Cap. 22:01). This Act empowers councils to manage local affairs, including the establishment and regulation of markets, and to enact by-laws for the good governance of their areas. Specifically, Section 103 of the Local Government Act grants councils the power to make by-laws, which can include provisions for the control of structures and the power to demolish those erected without permission. For instance, by-laws in other cities, such as Lilongwe and Mzuzu, explicitly state that councils may demolish unauthorised structures within markets and that no compensation shall be payable in certain contravention scenarios.

Complementing the Local Government Act is the Physical Planning Act, 2016 (as amended in 2022), which provides a comprehensive framework for physical planning and the orderly development of land in both urban and rural areas. This Act mandates that no development shall take place without prior planning permission and equips responsible authorities, including city councils, with powers to issue enforcement notices and order the demolition or modification of structures that contravene approved plans. The government has recently indicated a strong intention to implement the amended Physical Planning Act, including the demolition of illegal structures, to address chaotic urban development.

However, these statutory powers are circumscribed by the Constitution of the Republic of Malawi, 1994. Section 28 of the Constitution guarantees every person the right to acquire property and stipulates that no person shall be arbitrarily deprived of property. Furthermore, Section 43 enshrines the right to lawful and procedurally fair administrative action, which must be justifiable in relation to reasons given where a person's rights, freedoms, legitimate expectations, or interests are affected or threatened. These constitutional provisions are paramount and serve as a check on the exercise of administrative power by local authorities.

The Mayor's order for demolition at Limbe Market, while rooted in the Blantyre City Council's mandate for urban development and market management, must be scrutinised against the backdrop of Malawi's constitutional and administrative law principles. The Local Government Act and associated by-laws grant councils the power to regulate and, if necessary, remove unauthorised structures. However, the exercise of such powers is not absolute and is subject to fundamental rights enshrined in the Constitution.

Firstly, the constitutional protection against arbitrary deprivation of property under Section 28 is critical. While the traders at Limbe Market may not hold formal title deeds to their stalls, many may have operated there for extended periods, potentially establishing a form of de facto tenure or customary rights, particularly if they have been paying market fees to the council. The Constitution permits expropriation of property only for public utility, with adequate notification and appropriate compensation, and always with a right to appeal to a court of law. The question then arises whether the redevelopment of Limbe Market, while a public good, constitutes 'public utility' in a manner that justifies the deprivation of property, and crucially, whether 'appropriate compensation' will be provided, especially if the council's by-laws purport to exclude it in certain circumstances. The High Court in *The State v Blantyre City Assembly, ex.p. Ngwala* demonstrated a judicial willingness to weigh the overall investment benefit against individual loss before sanctioning demolition.

Secondly, the right to lawful and procedurally fair administrative action under Section 43 of the Constitution is paramount. This right encompasses several key elements: the action must be lawful, procedurally fair, and justifiable with reasons. Traders must be afforded adequate notice of the impending action, a meaningful opportunity to be heard, and clear reasons for the decision. The concept of 'legitimate expectation' also comes into play; if traders have been allowed to operate for years, perhaps with the tacit approval or even collection of fees by the council, they may have a legitimate expectation that certain procedures will be followed before their operations are disrupted. The case of *Ex Parte Zaibula v Council for the University of Malawi, HC Civil Cause No. 34 of 1997* illustrates how legitimate expectation can arise from the words or actions of a decision-maker. Any failure by the Blantyre City Council to adhere to these procedural fairness requirements could render the demolition order susceptible to judicial review.

Practitioners representing affected traders could seek an injunction to halt the demolitions, arguing procedural impropriety, illegality, or unreasonableness of the council's action. They could challenge whether the notice period was sufficient, whether a proper hearing was conducted, and whether the decision to demolish without compensation, if that is the council's stance, aligns with constitutional guarantees. The Malawi Local Government Association (MALGA) has previously highlighted challenges faced by councils in enforcing demolition orders due to existing legal frameworks, calling for stronger mandates, which suggests that the legal landscape around such actions is often contested. The Ombudsman's office also has a mandate to investigate cases where injustice is alleged, particularly where other remedies are not readily available.

The Mayor's order for the demolition of unauthorised structures at Limbe Market represents a significant test of the balance between urban development imperatives and the protection of individual rights in Malawi. While the Blantyre City Council is vested with powers to manage urban spaces and enforce planning regulations, these powers are not unfettered. They are subject to the stringent requirements of the Constitution, particularly concerning the right to property and the right to procedurally fair administrative action.

For legal practitioners, this situation underscores the critical need to advise clients on the nuances of Malawian administrative and constitutional law. Traders facing demolition should be counselled on their rights to adequate notice, a fair hearing, and potentially, appropriate compensation, even in the context of informal tenure. Challenges to such orders may be mounted on grounds of procedural irregularity, lack of justification, or arbitrary deprivation of property. Conversely, local authorities must ensure that their actions, while aimed at legitimate urban renewal, are executed with strict adherence to legal and constitutional safeguards to avoid successful judicial challenges and uphold public trust. The outcome of this directive will undoubtedly set a precedent for future urban development initiatives across Malawi, highlighting the ongoing evolution of administrative justice in the country.