Patriotism at Its Finest: Former AGs Kaphale, Silungwe offer free services to fight thin plastics case

In a move likely to be viewed as patriotism at another level, two former Attorney Generals (AG) honourables Kalekeni Kaphale and Chikosa Silungwe have stepped up and offered to join for free the ‘thin plastics case’ on the side of the State.

The two Senior Counsel, upon formal appointment by the Honourable the AG Thabo Chakaka Nyirenda, would make up part of the State team to forcefully 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, in a telephone interview a while ago, confirmed making the pro-bono offer to join the State team, 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,” Kaphale, who served as AG during the Professor Peter Mutharika’s administration under the Democratic Progressive Party, said.

Dr. Silungwe served as AG under the current administration of Tonse Alliance.

Honourable Nyirenda, the current AG, confirmed receiving the offer from his senior colleagues, saying he has received it with gratitude and it is something his office does not 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.

The 11 companies 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 that obtained the injunction through Counsel Wapona Kita are City Plastics Industry, Flexo Pack Ltd, G. Plastics Wholesale and Retail, G.S Plastic Industry, Jagot Plastics Ltd, O.G Plastics Industries (2008) Ltd, Plastimax Ltd, Polypack Ltd, Qingdao Recycling Ltd, Sharma Industries and Shore Rubber (Lilongwe) Ltd.

This development meant the implementation of the ban on thin plastics by the ministry was put on hold, unless this new injunction is fought and vacated. The AG views this as abuse of court as these 11 companies did not join the initial case which had been in court for years.

The Chief Justice his Lordship Rizine Mzikamanda earlier declined to grant a stay order pending the appeal to stop enforcement of a ban issued by government on thin plastics, and set 20th June 2024 to allow parties appear before the full bench of the Supreme Court for directions.

But on the appointed date, Counsel Frank Mbeta informed the nine-member Supreme Court bench that his client, Golden Plastics Limited, had decided to withdraw the appeal, an application the Court accepted.

But the State’s joy was short-lived when the 11 companies came in and obtained the fresh injunction when government was set to implement the ban.

Background of the case is that on 24 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, Malawi Environment Protection Authority (MEPA) proceeded with inspections, enforcement actions and conducted training workshops for city and district councils on enforcement of plastics regulations.

And around July, 2021, Golden Plastics obtained a stay order at the Malawi Supreme Court of Appeal, preventing the enforcement of the High Court judgement until an appeal of that judgement 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 the unavailability of the judge.

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