Justice Sector and the Rule of Law - AfriMAP

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hierarchy than the latter. According to section 102(2) of the Constitution, the director of publicprosecutions serves a five-year term of office, which may be renewed; and may be removed fromoffice by the president prior to the expiry of the five-year term of office only on the grounds ofincompetence, inability to exercise his or her functions impartially, incapacity or attainment ofage of retirement.But there have been instances where the executive has undermined the independence ofthe prosecution service by either violating the constitutional and legal guarantees of such independenceor by using the attorney-general’s powers of direction selectively to launch politicallymotivated investigations. Following elections held in May 2004, for example, the newly-electedpresident, Bingu Wa Mutharika, removed the director of public prosecutions from office beforethe expiry of his term of office on 31 December 2005. This decision was not justified by thepresident on either the grounds specified by section 102(2) of the Constitution or any other. 295Subsequently, the dismissed director of public prosecutions took legal action against the president.296The autonomy of the director of public prosecutions is restricted because he or she isrequired to act under ‘the general or special directions of the Attorney-General.’ 297 Historically,most attorneys-general have also been senior officials of their political parties. This increasesthe chances of an attorney-general using his or her constitutional power to give directions tothe director of public prosecutions in order to advance narrow partisan interests over the publicinterest. The director of public prosecutions is also subject to the administrative authority ofthe attorney-general who occupies a higher level in the bureaucratic hierarchy of the Ministryof Justice and Constitutional Affairs than that of the former. Many participants at the secondroundtable meeting to discuss the 2001 United Nations report 298 were of the view that in orderfor the director of public prosecutions to operate autonomously and in the public interest, hisor her office must have operational independence from that of the attorney-general. This wasunderscored by an apparent clash between the two offices in May 2006 in connection with theprosecution of the vice- president for treason. Following a statement by the director of publicprosecutions that the state had no evidence against one of the accused persons in the case, theattorney-general publicly overruled the director’s decision in a statement made to the press. 299When the president removed the attorney-general from office on 17 May 2006, the director ofpublic prosecutions followed it up by stating to the press that he had taken full responsibility
for the case from the date when the attorney-general was dismissed. 300 In order to enhance theoperational independence of the prosecution service in Malawi, it is recommended that section101(2) of the Constitution which obliges the director of public prosecutions to receive directionsfrom the attorney-general should be repealed.A related suggestion aims at enhancing the political independence of the office of the attorney-generalitself by requiring that the position should be held only by a public officer and neverby a member of the cabinet, who is a politician by definition. This suggestion was made by anumber of individuals and interest groups in submissions made to the Law Commission in thecourse of the constitutional review process in 2006. Adopting this idea requires an amendmentto section 98(5) of the Constitution, which currently provides that the office of the attorneygeneral‘may either be the office of a Minister or may be a public office.’Since 1994, there have been a number of occasions when some news media, non-governmentalorganisations and political parties have accused the government of the day of politicisingthe prosecution service. For example, between 2004 and 2005, the government initiated theinvestigation and prosecution of former President Bakili Muluzi and his allies, including at leastthree former cabinet ministers, the then deputy director of research of the United DemocraticFront party, two of the party’s members of Parliament and the current vice-president for allegedcorruption and related offences. 301 On the one hand, the investigations and prosecutions werecriticised by some as motivated by political malice rather than the legitimate interests of thepublic; 302 while on the other, the actions were justified as the legitimate performance of thegovernment’s obligation to uphold the principles of accountability and transparency. 303 Thereappears to be an element of truth in both assertions: the president himself has in the pastadmitted that, at least in the case of the prosecution of the two members of Parliament, thegovernment’s action was ‘tit-for-tat’ after they had moved the motion for his impeachment in theNational Assembly; 304 at the same time, many agree that, during the tenure of President Muluzi,
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MalawiJustice Sector and the Rule o
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Judicial review of the constitution
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Numerous individuals and research o
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The 1994 democratic Constitution th
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This discussion paper is based on t
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The Law Commission makes its recomm
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In recent years, government respect
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the effective follow-up of recommen
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funds for this purpose are still su
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The Constitution establishes safegu
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In order for lawyers to effectively
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enhancing consistency, compensation
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tions consistent with human dignity
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As a result of these barriers, most
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The Human Rights Commission is esta
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The end of Banda’s dictatorial ru
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The adoption of a new Constitution
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However, the government withdrew th
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provides the legal framework within
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order. In 1993, after pressure from
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public servant, provides that a pub
Page 51 and 52: his or her defence at the close of
Page 53 and 54: The High Court has unlimited origin
Page 55 and 56: Commission should first undertake f
Page 57 and 58: court of appeal for cases in tradit
Page 59 and 60: The Constitution provides for the L
Page 61: (CIDA), the Norwegian Agency for De
Page 64 and 65: annually financed by grants and con
Page 66 and 67: to pay lawyers in private practice
Page 68 and 69: give the attorney-general two month
Page 70 and 71: country-wide food shortage in 2000.
Page 72: upon the seriousness of the governm
Page 76 and 77: country’s vice-president. 173 Amo
Page 78 and 79: tutions of the justice sector were
Page 80 and 81: efforts to lobby the government to
Page 82 and 83: controlled by the Treasury. 201 The
Page 84 and 85: improving supervision of court regi
Page 86 and 87: of the deceased spouse. 230 They at
Page 88 and 89: for other sufficient reason’ to b
Page 91 and 92: Under the Banda dictatorship the ju
Page 93 and 94: after official working hours, there
Page 95 and 96: country. 267 Women, therefore, cons
Page 97 and 98: has been accepted in lieu of formal
Page 99 and 100: included extensive coverage of huma
Page 101: held disciplinary hearings relating
Page 105 and 106: By September 2005, the country had
Page 107 and 108: Legal Education and Legal Practitio
Page 109: Both lawyers and members of the pub
Page 112 and 113: lished between extreme poverty and
Page 114 and 115: on public goodwill to support any r
Page 116 and 117: crime-fighting operations. The oper
Page 118 and 119: Since 1996, the Public Service Act
Page 120 and 121: a change of behaviour of police off
Page 122 and 123: mechanisms for enforcing the author
Page 124 and 125: minister responsible for justice au
Page 126 and 127: The official language of the courts
Page 128 and 129: According to the study, the crimina
Page 130 and 131: his or her continued incarceration.
Page 132 and 133: Conference in 1995. 446 The confere
Page 134 and 135: the Prison Inspectorate, the Prison
Page 136 and 137: long-standing problems. 473 Followi
Page 138 and 139: national standards on the rights of
Page 140 and 141: There is only one known facility th
Page 143 and 144: Court fees in Malawi’s judicial i
Page 145 and 146: In addition to distance, other fact
Page 147 and 148: ing any person access to the courts
Page 149 and 150: There have been several initiatives
Page 151 and 152: Any person or group of persons with
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Mwadzangati v Daud Wood t/a Wood Co
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The full reports by the ombudsman a
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The powers of the Human Rights Comm
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command the respect of their commun
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officers of the ‘traditional or l
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The justice sector in Malawi is hea
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Another structure that provides the
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Most development partners provide t
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Donors hire their staff both locall
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Department of Legal Aid, the judici
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national budget. In the event, the
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Indicative summary of donor assista
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Phiri KM and Ross KR (eds.), Democr
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Kalekeni Kaphale, lawyer in private
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Justice Sector and the Rule of Law - AfriMAP

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