This story is part of a series called ‘On the Frontline’, first published in The Continent, which profiles some of the heroes on the frontline of Africa’s response to the coronavirus pandemic. Download your free copy of The Continent here.
Justice Kenyatta Nyirenda’s father, a member of Malawi’s liberation movement and a committed pan-Africanist, named his son after Kenya’s first president, Jomo Kenyatta. He could not have imagined that one day, his son would go on to help to draft Kenya’s current Constitution.
But Nyirenda’s impact in his own country, Malawi, has been even more profound. The parliamentary draftsman-turned-judge of the high court has presided over seminal cases, including the disputed presidential election in 2014. He made political enemies then when he ruled against the opposition — who were claiming that the election was rigged — on a technicality. This ruling allowed Peter Mutharika to ascend to the State House.
But now Nyirenda has found against the president in a couple of landmark judgments that have infuriated Mutharika’s administration.
First, Nyirenda controversially ruled in March that four Chinese nationals should be released from quarantine in Lilongwe. He said the emergency legislation used to detain them was archaic and invalid.
Then, last month, when Mutharika announced a national lockdown, Nyirenda ordered an injunction against its implementation until the government could come up with some way to protect the country’s poorest and most vulnerable citizens.
This ruling forced Mutharika to announce a nationwide minimum wage equivalent monthly cash transfer to poor households. It also forced him to create a Covid-19 task force that included opposition leaders, civil society and public health experts.
Nyirenda has come under fierce criticism from government officials, who said that if the virus spread quickly then “the nation knows who to blame”. Nyirenda has also been attacked for failing to be “patriotic” in the face of a national crisis.
But analysts and civil society groups have praised him for maintaining judicial independence.
Boniface Dulani, a senior lecturer in the University of Malawi’s department of political and administrative studies, said that Nyirenda is preventing possible abuses of power by the government. Dulani added that this principle was even more important because the current government is “basically a caretaker government with questionable credibility” — a reference to another major court decision earlier this year which set aside Mutharika’s re-election last year on the basis of electoral irregularities. New elections are scheduled for later this year.
“Patriotism is no substitute for doing something legally,” said Dulani. “Courts make rulings based on law, not on sentiment. Justice Nyirenda thinks he is being patriotic, too, by sticking to the law … Justice Kenyatta Nyirenda is a hero because he has reminded us that if we are to fight the pandemic using a lockdown, we must do so under the dictates of the law, but government has opted to react by disregarding the court proceedings or calling the judge names.”
Gift Trapence, chairperson of the Human Rights Defenders Coalition — the civil society group that initially opposed the government’s lockdown plans — praised the judge. “Justice Kenyatta is an example of how independent our courts are. They make their own judgments based on law and evidence … Malawi’s judiciary is one of the shining stars of Africa because of the professionalism of its bench.”
Kalekeni Kaphale, Malawi’s attorney general, does not agree with this assessment. He has been scathing of Nyirenda’s decision to suspend the lockdown ordered by the government, and has demonstrated his disdain by failing to participate in inter-party hearings on the judge’s injunction. However, he told the Mail & Guardian that the government would comply nonetheless. “We will continue with some restrictions, but not those under the lockdown injunction,” Kaphale said.
Nyirenda’s sister, Emma Kaliya, a prominent women’s rights activist, noted that standing up to abuses of power was in the family’s blood. “Our father was involved in the fight for liberation, before Kamuzu [Hastings Banda] arrived in 1957. He was a small politician. Our family car was used to help the party activities as Kamuzu campaigned. During the state of emergency of 1959 he was arrested and jailed in Nkhata Bay. There was a massacre later on as people demanded his release with others. He was in prison for 11 months. He refused to co-operate with the colonialists and refused to renounce the fight against colonialism,” she said.