In a rare fashion, Malawi’s two former Attorney Generals (AG) Kalekeni Kaphale and Dr. Chikosa Silungwe have offered to join the side of the State for free the ‘thin plastics case’.
According to a Ministry of Justice Facebook post, the two Senior Counsels, upon formal appointment by the current AG Thabo Chakaka Nyirenda, would make up part of the State team to fight a fresh injunction 11 companies obtained to stop Ministry of Natural Resources and Climate Change from implementing a ban on thin plastics.
SC Kaphale confirmed making the pro-bono offer to join the State team to Ministry of Justice officials, alongside Dr. Silungwe and University of Malawi’s (UNIMA) Environmental Justice and Sustainability Clinic, which is under the Faculty of Law.
“That is not all. We are also trying to mobilize other interested parties from other universities to join us; and the door is also open to non-governmental organizations that focus on environment.
“We made this decision as citizens of Malawi that care for our environment. We have to live in a better environment and leave an environment that is good for our children and future generations,” said Kaphale, who served as AG during the Peter Mutharika’s administration under the Democratic Progressive Party.
Dr. Silungwe served as AG during the early days of the current administration of the Tonse Alliance.
Nyirenda, confirmed receiving the offer from his senior colleagues, applauding the gesture noting it is something his office doesn’t take for granted.
“These are true patriots offering their priceless services for free to save this nation from serious environmental damage the thin plastics may cause. I am excited to have their expertise and to help us rescue Malawi,” he said.
The 11 companies, who are new parties altogether and not the ones led by Golden Plastics Limited that withdrew their case in Blantyre from a full bench of Malawi Supreme Court of Appeal on June 20 2024 when it was set to hear the matter, were on 25th June 2024 granted a permission ex-parte to apply for judicial review.
They also asked the High Court of Malawi in Lilongwe to refer the matter to the Chief Justice for certification as a Constitutional matter where they want to challenge the constitutionality of the Environment, Management (Plastics) Regulations of 2015 designed to protect the environment.
The Minister of Natural Resources and Climate Change is the 1st Defendant in the matter while the AG is the 2nd Defendant.
The companies obtained the injunction through Counsel Wapona Kita.
Following the development, the implementation of the ban on thin plastics by the Ministry was put on hold, unless this new injunction is fought and vacated.
On 24th May, 2021, the High Court (Commercial Division) in Lilongwe vacated an injunction prohibiting enforcement of the thin plastics regulations and dismissed the judicial review challenging the legality of the thin plastics regulations by the applicant, Golden Plastics Limited.
Thereafter, the Malawi Environment Protection Authority (MEPA) proceeded with inspections, enforcement actions and conducted training workshops for city and district councils on enforcement of plastics regulations.
Around July, 2021, Golden Plastics obtained a stay order at the Malawi Supreme Court of Appeal, preventing the enforcement of the High Court judgment until an appeal of that ruling was heard and concluded at the Supreme Court.
MEPA through the AG Chambers applied to have the stay order vacated. The hearing of the application to vacate the stay order was scheduled on July 15, 2021, but later adjourned several times due to unavailability of the judge.
