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Two former justice ministers, Kalekeni Kaphale and Chikosa Silungwe, have come forward and offered to join the thin plastic case on the state side for free, a move that could well be seen as another level of patriotism.
The two senior lawyers, formally appointed by the Honourable Attorney General Thabo Chakaka Nyirenda, will form the national team to vigorously fight the new injunction obtained by 11 companies to stop the Ministry of Natural Resources and Climate Change from implementing the ban on thin plastics.
SC Kaphale confirmed in a recent telephone interview that he will join the national team on a pro bono basis alongside Dr Silungwe and the University of Malawi (UNIMA) Environmental Justice and Sustainable Development Clinic, which is affiliated with the Faculty of Law.
“Not only that, we are also trying to mobilize other stakeholders from other universities to join us; we are also open to non-governmental organizations that focus on environmental issues.”
“We have taken this decision as Malawian citizens who care about the environment. We must live in a better environment and leave a good environment for our children and future generations,” said Kafale, who served as attorney general during the DPP Professor Peter Mutharika administration.
Dr Silungwe was previously Attorney General in the current Tonse Alliance government.
The current Attorney General, Honourable Nyirenda, confirmed receiving the invitation from his senior colleague and said he was grateful for it and it was something his office would not take for granted.
“They are true patriots who are providing their invaluable service pro bono to save this country from the severe environmental damage that thin plastics can cause. I am delighted to have their expertise and help us save Malawi,” he said.
The 11 companies are entirely new parties, not the companies headed by Golden Plastics Limited, which withdrew the case in Blantyre (which was originally scheduled to be heard in that court) from the full bench of the Malawi Supreme Court of Appeal on June 20, 2024. On June 25, 2024, the 11 companies were granted ex parte leave to apply for judicial review.
The 11 companies also asked the Malawi High Court in Lilongwe to refer the matter to the Chief Justice for certification as a constitutional issue, challenging the constitutionality of the Environmental Management (Plastics) Regulations 2015, which are aimed at protecting the environment.
The Minister of Natural Resources and Climate Change is the first defendant in the case, while the Attorney General is the second defendant.
The companies that obtained injunctions through lawyer Wapona Kita include City Plastics Industry, Flexo Pack Ltd, G. Plastics Wholesale and Retail, GS Plastic Industry, Jagot Plastics Ltd, OG Plastics Industries (2008) Ltd, Plastimax Ltd, Polypack Ltd, Qingdao Recycling Ltd, Sharma Industries and Shore Rubber (Lilongwe) Ltd.
The development means that unless this new ban is overturned, the implementation of the ministry’s ban on thin plastics will be on hold. The Attorney General considers this an abuse of court because the 11 companies were not involved in the initial case that has been in court for years.
Chief Justice Rizine Mzikamanda had earlier refused to grant an appeal to stay the government’s ban on thin plastics and fixed June 20, 2024 for the parties to appear before the full Supreme Court for directions.
But on the appointed date, lawyer Frank Mbeta informed the nine-judge bench of the Supreme Court that his client, Golden Plastics Limited, had decided to withdraw the appeal, which the court accepted.
But as the government was preparing to implement the ban, these 11 companies were the first to obtain new bans, and Victoria’s joy did not last long.
The background to the case is that on May 24, 2021, the Lilongwe High Court (Commercial Division) vacated the injunction against the enforcement of the Thin Plastics Regulation and dismissed the judicial review of the legality of the Thin Plastics Regulation by the applicant, Golden Plastics Limited.
Since then, the Malawi Environmental Protection Agency (MEPA) has carried out inspection and enforcement operations, and held training workshops on the enforcement of plastic regulations for municipal and district councils.
Around July 2021, Golden Plastics obtained a stay order in the Malawi Supreme Court of Appeal prohibiting the execution of the High Court’s judgment until the Supreme Court hears and concludes its appeal against that judgment.
MEPA applied through AG Chambers to revoke the stay order. The hearing on the application to revoke the stay order was originally scheduled for July 15, 2021, but was later adjourned several times due to the absence of the judge.
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