MW: Lilongwe District Council and HRCC Discuss Postponement of Xenophobia Protests

Officials from the Lilongwe District Council recently engaged with representatives of the Human Rights Consultative Committee (HRCC) to deliberate the postponement of planned anti-xenophobia demonstrations. These protests were intended to voice concern over escalating xenophobic attacks targeting foreign nationals in South Africa. This development underscores the intricate legal landscape in Malawi concerning the right to peaceful assembly, balancing constitutional freedoms with public order management. For legal practitioners, the incident highlights the critical need to understand the interplay between the Constitution, the Police Act, and the role of local government authorities in regulating public gatherings, particularly when sensitive international issues are involved. The discussions reflect an ongoing tension between civil society's right to express dissent and the state's prerogative to maintain peace and order.

The recent engagement between the Lilongwe District Council and the Human Rights Consultative Committee (HRCC) regarding the postponement of planned anti-xenophobia protests has brought to the fore critical questions surrounding the exercise and regulation of fundamental rights in Malawi. These demonstrations, organised in response to xenophobic attacks against foreign nationals in South Africa, represent a significant expression of public sentiment and solidarity. The decision to discuss a postponement, rather than an outright prohibition, indicates a nuanced approach by authorities, yet it simultaneously tests the boundaries of constitutional guarantees for freedom of assembly.

This incident serves as a pertinent case study for legal professionals navigating the complexities of public order law and human rights advocacy in Malawi. It compels an examination of the legal framework governing public gatherings, the powers and limitations of local government bodies, and the role of civil society organisations in exercising constitutional freedoms. The core legal challenge lies in striking a delicate balance between the constitutionally enshrined right to protest and the state's legitimate interest in ensuring public safety and order.

This article will delve into the legal underpinnings of freedom of assembly in Malawi, analyse the statutory and regulatory mechanisms for managing protests, and explore the implications of such engagements for both civil society actors and governmental authorities. It aims to provide practitioners with a comprehensive understanding of the legal considerations involved when advising clients on the organisation or regulation of public demonstrations.

Malawi's legal framework for public gatherings is primarily anchored in its Constitution and specific legislation. Section 38 of the Constitution of the Republic of Malawi unequivocally guarantees that "Every person shall have the right to assemble and demonstrate with others peacefully and unarmed." This fundamental right is further supported by Section 153, which mandates the Malawi Police Service to provide for the protection of public safety and the rights of persons, including facilitating and protecting the right to assemble peacefully.

However, the exercise of this right is not absolute and is subject to regulation. The Police Act, particularly Sections 96 and 103, along with Parts IX and X, outlines the powers of the police in public order management. Crucially, the Act requires organisers of assemblies to provide authorities with 48 hours' notice. This notification requirement has, at times, been misinterpreted by authorities as a need for explicit permission, leading to instances where demonstrations were either denied or faced attempts at prohibition. Furthermore, the Preservation of Security Act (Chapter 14:02 of the Laws of Malawi) grants the Minister of Interior powers to prohibit, restrict, and control assemblies, with regulations made under this Act having effect notwithstanding other laws, save for the Constitution.

The Lilongwe District Council, as a local government authority established under the Local Government Act (No. 42 of 1998), plays a role in the administration of local affairs, including the processing of notifications for public assemblies within its jurisdiction. The Human Rights Consultative Committee (HRCC), on the other hand, is a prominent network of Malawian civil society organisations established in 1995. Its mandate includes coordinating human rights monitoring, advocacy, and protection efforts, often involving public education campaigns, legal interventions, and the organisation of demonstrations to advance human rights agendas.

The discussion between the Lilongwe District Council and the HRCC regarding the postponement of anti-xenophobia protests highlights a recurring tension in Malawian jurisprudence: the balance between the constitutional right to peaceful assembly and the state's interest in maintaining public order. While Section 38 of the Constitution guarantees the right to demonstrate, the Police Act's requirement for 48 hours' notice for public gatherings has frequently been misconstrued by authorities as a prerequisite for obtaining 'permission' rather than merely providing notification. This misinterpretation often forms the basis for attempts to restrict or postpone protests.

Local government bodies, such as the Lilongwe District Council, are empowered under the Local Government Act to manage local affairs, which implicitly includes engaging with civil society on matters of public order. Their request for a postponement would likely be predicated on concerns for public safety, potential for unrest, or logistical challenges. However, any such request or directive must be carefully weighed against the constitutional right to protest. Malawian courts have previously intervened to protect assembly rights against executive overreach. For instance, in *Malawi Law Society and others v State and others*, the court affirmed that presidential directives to limit protest rights do not amount to law and cannot fetter constitutional freedoms. This precedent underscores that restrictions on assembly must be prescribed by law and be necessary and proportionate in a democratic society, aligning with international standards such as Article 21 of the ICCPR and Article 11 of the African Charter on Human and Peoples' Rights, to which Malawi is a State Party.

The HRCC, as a leading human rights advocacy group, operates within a framework that champions these constitutional and international human rights. Their engagement with the Council, even if leading to a postponement, reflects a strategic effort to ensure that the right to protest is ultimately respected, rather than outright denied. A postponement, unlike a prohibition, suggests a temporary deferral often based on mutual agreement or a commitment to address specific concerns, such as ensuring adequate security or resolving logistical issues. This approach can be seen as a mechanism to de-escalate potential conflict while still upholding the fundamental right to express dissent. However, practitioners must remain vigilant to ensure that 'postponements' do not become de facto prohibitions through indefinite delays or unreasonable conditions.

Furthermore, the subject matter of the protests—anti-xenophobia—is particularly salient given Malawi's international human rights obligations. Malawi has ratified the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), which obliges the state to condemn racial discrimination and undertake measures to eliminate it. While the protests are directed at actions in another country, the expression of solidarity against xenophobia aligns with Malawi's broader commitments to human rights and non-discrimination. This context strengthens the HRCC's moral and legal standing in advocating for the right to hold such demonstrations, even as the Council seeks to manage their practical implications.

The dialogue between the Lilongwe District Council and the Human Rights Consultative Committee over the anti-xenophobia protests serves as a crucial reminder of the ongoing dynamic between constitutional rights and regulatory authority in Malawi. For legal practitioners, this incident highlights the imperative of a thorough understanding of the constitutional guarantees under Section 38, the procedural requirements of the Police Act, and the interpretative nuances that often arise in practice. Advising civil society organisations requires not only knowledge of their right to assemble but also strategic engagement with authorities to ensure that notification is not treated as a request for permission, and that any proposed restrictions are lawful, necessary, and proportionate.

Conversely, practitioners advising governmental bodies must emphasise adherence to constitutional principles and international human rights standards, ensuring that public order management does not unduly infringe upon fundamental freedoms. The precedent set by cases like *Malawi Law Society and others v State and others* underscores the judiciary's role in safeguarding these rights against executive overreach. Moving forward, continued dialogue and a commitment to the rule of law from both state and non-state actors will be essential in fostering a democratic space where public expression can thrive responsibly, even on sensitive international issues like xenophobia. Attorneys should closely monitor how such engagements evolve, as they set important precedents for the future of civil liberties in Malawi.