Remembering SKC, 8 others in peace and oneness

The planned memorial service for the late Malawian Vice-President, Dr. Saulos Klaus Chilima, has brought into sharp focus the constitutional right to freedom of assembly and the legal parameters for its restriction. While memorials serve as crucial avenues for national mourning and unity, reports of restricted attendance raise significant legal questions regarding the state's power to regulate public gatherings. This article examines the interplay between Section 38 of the Constitution of Malawi, which guarantees the right to assemble peacefully, and statutory provisions like the Police Act and the Preservation of Public Security Act, alongside relevant case law. It delves into the necessity for any restrictions to be prescribed by law, reasonable, and proportionate, particularly in a context of profound national grief, offering insights for legal practitioners on navigating such complex issues.

Malawi is currently grappling with profound national grief following the tragic passing of its Vice-President, Dr. Saulos Klaus Chilima, and eight others. As the nation prepares for a memorial service in Nsipe, Ntcheu, intended to honour the departed and foster unity, concerns have emerged regarding reports of restricted attendance. Such limitations, particularly during a period of collective mourning, are not merely logistical matters but touch upon fundamental constitutional rights and the very fabric of a democratic society. The tension between the state's prerogative to maintain public order and the citizens' right to assemble and express their sorrow collectively presents a critical legal and societal challenge.

This article aims to provide a comprehensive analysis for legal professionals on the legal framework governing public gatherings and the permissible scope of restrictions in Malawi, specifically in the context of a national memorial. It will explore the constitutional guarantees, relevant statutory provisions, and pertinent judicial pronouncements to illuminate the legal boundaries within which the state must operate when regulating such significant public events. The central thesis is that while the state may impose restrictions, these must be strictly prescribed by law, demonstrably necessary, and proportionate to a legitimate aim, upholding the spirit of an open and democratic society.

The right to freedom of assembly is a cornerstone of Malawi's constitutional democracy, enshrined in Section 38 of the Constitution of the Republic of Malawi, which stipulates that "Every person shall have the right to assemble and demonstrate with others peacefully and unarmed." This fundamental right is not absolute, and Section 44 of the Constitution permits limitations, provided they are "prescribed by law, which are reasonable, recognised by international human rights standards and necessary in an open and democratic society."

Further statutory provisions regulate public gatherings. The Police Act 2010, particularly Section 96, requires organisers of assemblies or demonstrations to provide authorities with 48 hours' notice, with a copy sent to the relevant police station. The Act also mandates authorisation for demonstrations within the vicinity of Parliament, a state residence, or a court. Additionally, the Preservation of Public Security Act 1960 grants the Minister of Interior powers to prohibit, restrict, and control assemblies where considered necessary for the preservation of public order. Malawi is also a State Party to international instruments such as the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples' Rights, both of which affirm the right to peaceful assembly, subject to similar permissible restrictions based on law, national security, public safety, public order, public health, or the protection of the rights and freedoms of others.

A crucial precedent in Malawian jurisprudence is the case of *Malawi Law Society and others v State and others*, where the court held that a presidential directive banning demonstrations was unconstitutional because there was no law prescribed to limit the right to assembly and demonstration. This ruling underscores the principle that any restriction on fundamental rights must have a clear legal basis, not merely an executive pronouncement, and must satisfy the tests of reasonableness and necessity.

The planned memorial service for the late Vice-President, Dr. Saulos Klaus Chilima, undoubtedly constitutes an "assembly" or "gathering" as defined under Malawian law, particularly Section 92 of the Police Act, which includes any "assembly, meeting, rally, gathering, concourse or procession of more than fifteen persons in or on any public place or premises or on any public road." Therefore, any restrictions on attendance must align with the legal framework governing such public events.

The permissible grounds for restricting freedom of assembly, as outlined in the Constitution and international human rights instruments, include national security, public safety, public order, public health, or the protection of the rights and freedoms of others. During the COVID-19 pandemic, Malawi enacted the Public Health (Corona Virus and COVID-19) (Prevention, Containment and Management) Rules, 2020, which, at various times, legally limited public gatherings, including funerals, to specific numbers (e.g., 50 people). This demonstrates that restrictions based on public health concerns, when properly gazetted and justified, can be legally imposed. However, the current context, absent a declared public health emergency of similar magnitude, would require a different, equally robust, and current legal justification for limiting attendance.

The proportionality and reasonableness of any restrictions are paramount. The *Malawi Law Society* case firmly established that restrictions cannot be arbitrary or based on mere executive directives; they must be "prescribed by law" and "necessary in a democratic society." Restricting attendance at a memorial service for a national figure, particularly when the stated aim is to foster national unity, could be perceived as counterproductive and disproportionate if not based on clear, compelling, and legally sound reasons. The right to mourn and collectively express grief can be seen as an extension of freedom of expression, also guaranteed by Section 35 of the Constitution.

Legal practitioners advising on such matters must scrutinize the specific legal instrument authorising any restriction. Is it an Act of Parliament, a subsidiary regulation, or merely an administrative instruction? The legal validity hinges on this distinction. Furthermore, the Malawi Human Rights Commission (MHRC), established under Chapter XI of the Constitution, has a mandate to protect and promote human rights and investigate violations, providing an avenue for aggrieved persons to seek redress or advice. Any restrictions that appear to be an overreach of state power or are not demonstrably necessary and proportionate could be challenged through judicial review or engagement with the MHRC.

The regulation of public gatherings, even those of profound national significance like a memorial service for a Vice-President, must strictly adhere to the constitutional and statutory framework of Malawi. While the state has a legitimate interest in maintaining public order and safety, this must be balanced against the fundamental rights of citizens to assemble peacefully and express their collective grief and solidarity. Any restrictions on attendance must be clearly "prescribed by law," reasonable, and proportionate to a legitimate aim, avoiding arbitrary executive action.

For legal practitioners, it is crucial to critically assess the legal basis for any governmental directives limiting public participation in such events. Challenges may arise if restrictions lack a clear statutory foundation, are disproportionate to the perceived threat, or undermine the spirit of constitutional freedoms. The current situation serves as a timely reminder for authorities to act with transparency and within the bounds of the law, and for citizens to be aware of their rights, ensuring that national mourning can proceed in a manner that respects both public order and fundamental human rights.