Lilongwe District Council, HRCC Hold Talks Over Planned Anti-Xenophobia Protests

The Lilongwe District Council's engagement with the Human Rights Consultative Committee (HRCC) regarding the postponement of anti-xenophobia protests highlights the delicate balance between the constitutional right to peaceful assembly and the state's interest in public order in Malawi. While Section 38 of the Malawian Constitution guarantees the right to assemble and demonstrate peacefully, the exercise of this right is subject to statutory regulations, notably the Police Act, which requires prior notification. This article examines the legal framework governing public demonstrations in Malawi, focusing on the distinction between notification and permission, the powers of local authorities, and the implications for civil society organizations. It underscores the ongoing legal discourse surrounding the scope of fundamental rights and the potential for administrative actions to impact their exercise.

Officials from the Lilongwe District Council recently held discussions with representatives of the Human Rights Consultative Committee (HRCC) concerning the postponement of planned demonstrations against xenophobic attacks targeting foreign nationals in South Africa. These protests, initially scheduled by HRCC, aimed to culminate in the presentation of a petition, reflecting a significant expression of public sentiment on a matter of international concern with domestic implications. This interaction brings to the fore critical legal questions surrounding the right to peaceful assembly and the regulatory powers of local government bodies in Malawi.

The postponement, reportedly a result of these talks, necessitates a closer examination of the legal parameters within which such public gatherings are organized and potentially altered. For legal practitioners, understanding the interplay between constitutional guarantees, statutory requirements, and administrative discretion is paramount. This article will delve into Malawi's legal framework governing public demonstrations, analyze the implications of such postponements, and provide insights into the rights and obligations of both organizers and authorities.

Malawi's legal landscape for public demonstrations is primarily anchored in its Constitution and specific legislation. Section 38 of the 1994 Constitution of the Republic of Malawi unequivocally guarantees every person the right to assemble and demonstrate with others peacefully and unarmed. This fundamental right is a cornerstone of Malawi's multi-party democracy, reflecting a commitment to civic freedoms. However, like many constitutional rights, it is not absolute and can be subject to limitations prescribed by law, provided such restrictions are necessary in a democratic society for interests such as national security, public safety, public order, public health or morals, or the protection of the rights and freedoms of others.

The primary statutory instrument regulating public assemblies is the Police Act of 2010. Section 96 of this Act stipulates that organizers of assemblies exceeding fifteen persons in a public place must provide authorities with 48 hours' notice. Furthermore, Section 103 of the Police Act requires authorization for demonstrations within the vicinity of Parliament, a state residence, or a court. Historically, the 1960 Preservation of Security Act also grants the Minister of Interior powers to prohibit, restrict, and control assemblies, though its application must be consistent with the Constitution. The Human Rights Consultative Committee (HRCC) itself is a well-established network of Malawian civil society organizations, frequently involved in human rights advocacy and the organization of public protests.

The interaction between the Lilongwe District Council and HRCC regarding the postponement of protests underscores a recurring tension in Malawian public law: the distinction between notification and permission for public assemblies. While the Police Act mandates a 48-hour notice for demonstrations, this requirement has often been misinterpreted by authorities, including local government councils, as a prerequisite for granting or refusing 'permission.' This misinterpretation has been a point of contention and legal challenge.

A pivotal clarification on this matter was provided in the case of *Malawi Law Society and others v State and others*, where the court affirmed that citizens are only required to give notice to the police, and there is no legal requirement for the police to grant permission. The court further emphasized that presidential directives cannot override constitutional rights, and that, at the time, no specific law existed to limit or restrict the right to assembly and demonstration beyond the notice requirement. This ruling is crucial, as it reinforces the facilitative role of authorities rather than a gatekeeping one.

However, despite this judicial clarity, practical challenges persist. Authorities have, in the past, attempted to halt demonstrations through court orders, by denying perceived 'permission,' or by demanding substantial surety. The Malawi Police Service has, however, made efforts to align its practices with human rights standards, launching revised Public Order Management Policy and Operational Guidelines (3rd Edition) in 2025. These guidelines aim to ensure peace and safety during public gatherings while upholding human rights, emphasizing principles of legality, necessity, and proportionality in public order management. The engagement between the Lilongwe District Council and HRCC, leading to a postponement rather than an outright prohibition, suggests a move towards dialogue and negotiation, which aligns more closely with the spirit of the constitutional right to assembly and the revised police guidelines.

Nevertheless, the potential for administrative bodies to influence the timing and nature of protests remains a critical area for scrutiny. While a postponement through mutual agreement might be seen as a pragmatic solution, it also highlights the leverage that authorities can exert. Practitioners must remain vigilant to ensure that such engagements do not inadvertently create a de facto 'permission' system, undermining the constitutional right to assembly. The vague language in some older regulations, such as certain provisions in the Penal Code, also continues to pose a risk of broad interpretation and potential restriction of civic space.

The discussions between the Lilongwe District Council and the Human Rights Consultative Committee regarding the anti-xenophobia protests underscore the evolving landscape of civic freedoms in Malawi. While the constitutional right to peaceful assembly is robustly protected, the practical exercise of this right often navigates a complex interplay of statutory requirements, administrative interpretations, and the imperative of public order. The distinction between merely notifying authorities and seeking their permission remains a critical legal principle that must be consistently upheld by all state organs.

For legal practitioners, advising civil society organizations on public demonstrations requires a thorough understanding of Section 38 of the Constitution, the Police Act, and relevant judicial pronouncements like *Malawi Law Society and others v State and others*. It is crucial to emphasize that the role of local councils and the police is to facilitate peaceful assemblies, not to arbitrarily prohibit them. Future engagements between authorities and protest organizers should continue to prioritize dialogue and adherence to human rights principles, ensuring that any restrictions are strictly necessary, proportionate, and prescribed by law, thereby safeguarding the democratic space for expression and dissent in Malawi.