Justice Sector and the Rule of Law - AfriMAP

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The 1994 democratic Constitution that represented Malawi’s decisive break with Banda’s dictatorialregime ushered in a new set of human rights and democratic standards, aspirations andvalues. This included a commitment to ensure that Malawi complied with African and internationalnorms and standards on human rights, the rule of law and democratic governance.To what extent has Malawi lived up to this commitment, and what could be done byMalawian state institutions, civil society entities, and development partners to ensure that theseintentions are realised?This report, Malawi: Justice Sector and the Rule of Law, seeks to aid and focus the effortsof various players committed to Malawi’s success in the area of justice delivery and rule of lawobservance. It is also a resource for African institutions seeking to enable Malawi to meet itscommitments under the Constitutive Act of the African Union, the New Partnership for Africa’sDevelopment (NEPAD) and related African governance instruments. The report identifies anumber of key challenges, including:• The need to ensure that all statutory and customary laws of Malawi are aligned to theConstitution and to international law;• The challenge to match the relatively commendable diligence with which theMalawian government has respected internationally agreed economic managementstrictures with an equal respect for the law in all other matters, including political;• The urgent need to practically address the various challenges relating to themanagement of the justice sector that have been identified by the judiciary in itsstrategic plan, and affirmed through other initiatives;• The need to ensure that judicial appointments are seen to be totally free of politicalmanipulation at all levels;• The reality that, while significant and commendable progress has been made incriminal justice reform, crime has been steadily increasing since 2001—no doubtprincipally on account of the high levels of poverty in the country—and that thereforestrengthening of the prosecution service is of urgent concern;• The need for various further reforms in the criminal justice system, including regardto legal guarantees of fair trial, and in terms of prison conditions;
• The critical need to improve access to justice for ordinary citizens, including theurgent call for a legal framework to govern customary forums through which the vastmajority of Malawians access justice;• And the urgent need for a sector-wide approach for the coordination of developmentassistance in the justice sector.These challenges are not insurmountable. The intensive and considered inputs to this reportby the Law Development Commission, civil society organisations, academics, funding partners,constitutional bodies, among others, demonstrated the potential collective political will thatneeds to be activated to realise these goals. For its part, the Open Society Initiative for SouthernAfrica will, as it has done in the past—and through its usual tools of advocacy, partnershipbuilding and intellectual investment—continue to accompany Malawian democratic reform andhuman development efforts in civil society and the state.Tawanda MutasahExecutive DirectorOpen Society Initiative for Southern Africa
Page 1 and 2: MalawiJustice Sector and the Rule o
Page 6 and 7: Judicial review of the constitution
Page 8 and 9: Numerous individuals and research o
Page 15 and 16: This discussion paper is based on t
Page 17 and 18: The Law Commission makes its recomm
Page 19 and 20: In recent years, government respect
Page 21 and 22: the effective follow-up of recommen
Page 23 and 24: funds for this purpose are still su
Page 25 and 26: The Constitution establishes safegu
Page 27 and 28: In order for lawyers to effectively
Page 29 and 30: enhancing consistency, compensation
Page 31 and 32: tions consistent with human dignity
Page 33 and 34: As a result of these barriers, most
Page 35 and 36: The Human Rights Commission is esta
Page 39 and 40: The end of Banda’s dictatorial ru
Page 41 and 42: The adoption of a new Constitution
Page 43 and 44: However, the government withdrew th
Page 45 and 46: provides the legal framework within
Page 47 and 48: order. In 1993, after pressure from
Page 49 and 50: 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
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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
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of the deceased spouse. 230 They at
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for other sufficient reason’ to b
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Under the Banda dictatorship the ju
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after official working hours, there
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country. 267 Women, therefore, cons
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has been accepted in lieu of formal
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included extensive coverage of huma
Page 101 and 102:
held disciplinary hearings relating
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for the case from the date when the
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
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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.
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Conference in 1995. 446 The confere
Page 134 and 135:
the Prison Inspectorate, the Prison
Page 136 and 137:
long-standing problems. 473 Followi
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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
Page 153 and 154:
Mwadzangati v Daud Wood t/a Wood Co
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The full reports by the ombudsman a
Page 157 and 158:
The powers of the Human Rights Comm
Page 159 and 160:
command the respect of their commun
Page 161 and 162:
officers of the ‘traditional or l
Page 163 and 164:
The justice sector in Malawi is hea
Page 165 and 166:
Another structure that provides the
Page 167 and 168:
Most development partners provide t
Page 169 and 170:
Donors hire their staff both locall
Page 171 and 172:
Department of Legal Aid, the judici
Page 173 and 174:
national budget. In the event, the
Page 176:
Indicative summary of donor assista
Page 182 and 183:
Phiri KM and Ross KR (eds.), Democr
Page 184:
Kalekeni Kaphale, lawyer in private
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Justice Sector and the Rule of Law - AfriMAP

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