Justice Sector and the Rule of Law - AfriMAP

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Since 1996, the Public Service Act has required all public service institutions to abide by theprinciple of non-discrimination. However, this obligation is not restated in the Police Act. This isone of the weaknesses of the act that the Police Bill proposed by the Law Commission addresses.Although the bill does not mention non-discrimination expressly, it does so by implication in theprovision that one of the obligations of the service is the protection of ‘fundamental freedomsand rights of individuals’ 369 since one of the human rights that the Constitution expressly guaranteesis that of every person not to be discriminated against. 370There is evidence to suggest that, in practice, police treat members of certain sections ofthe population less favourably than others. For example, according to the Malawi chapter of theWomen and Law in Southern Africa Research and Education Trust (WLSA), women are treatedless favourably than men when they seek police intervention, particularly where they are complainingof domestic violence. 371The police have also been accused of not providing equal protection to members and supportersof the party in power and those affiliated to opposition parties. A research study of publicperceptions of the police conducted by the Centre for Social Research of the University of Malawiin 1998 found that to a significant extent, the members of the public perceived the police to bepolitically biased. 372 The perception appears to have persisted; in 2004, the EU Observer Missionto the 2004 elections found that the police were widely perceived to be close to the ruling party.The police were also perceived to provide preferential treatment at the expense of the poor. 373There is no readily available evidence to indicate definitively whether the police continue tobe perceived to be, or are, biased against particular vulnerable groups. The recent establishment ofVictim Support Units should help to improve support provided to victims of crime who belong tovulnerable groups. For a long time, the government’s failure to enact legislation aimed at improvingthe protection of vulnerable people within the home, especially women and children, had limitedthe potential for implementing any strategy for action. In April 2006, the Prevention of DomesticViolence Act was finally enacted. 374 This is an important step forward, even though some civil societyand professional organisations have criticised the act for failing to take sufficient account of Malawi’scultural realities and imposing unrealistic penalties on perpetrators of domestic violence. 375
Historically, ‘police abuse has been one of the most serious and divisive human rights violationsin Malawi.’ 376 However, since the introduction of the police reform project, attempts have beenmade to reduce the problem through various initiatives including training of police officersto maintain public order in a manner that is consistent with human rights and internationalstandards of policing in democracies. 377 In spite of the reform efforts, however, there have beencredible allegations of abuse in recent years.In 2001, the Special Rapporteur on Prisons of the African Commission on Human andPeoples’ Rights visited Malawian prisons and police stations and reported a number of seriousallegations of abuse. The Rapporteur reported allegations of police beatings and ill-treatmentof suspects mainly to extract confessions. 378 Instances of verbal, physical and sexual abuse offemale suspects by individual police officers have also been reported. 379More recently, the same observation has been made by Amnesty International which, inits 2005 report, states that ‘the torture and ill-treatment of suspects and deaths in custody werereported to continue’ and cites the examples of the cases of Wekha Maguja and Gift Chikani,who were allegedly beaten, and Hannah Kapaluma, who was allegedly beaten and sexuallyassaulted by police officers. Other alleged abuses have been so serious as to have resulted indeath. Examples cited by Amnesty International include the cases of Mabvuto Maguja, who diedon 23 May 2004 after police apparently beat him following his arrest in Lilongwe; 10-year-oldEpiphania Bonjesi, who was fatally shot during attempts by the police to quell a riot that haderupted in Blantyre following the announcement of the results of the 2004 presidential elections;and Fanikiso Phiri, a university student who was shot dead by police during a riot at aconstituent college of the University of Malawi. 380 In June 2005, the media also reported thedeath in police custody of 12-year old Mabvuto Bakali. 381These reports by the media and human rights organisations suggest that police abuses arefrequent enough to be a matter of urgent concern. The concern is heightened by the delay in theenactment into law of the Police Bill proposed by the Law Commission. Among other things, thebill states that one of the general functions of the police service is the protection of fundamentalrights and freedoms. 382 According to the commission, reforms to police law may contribute to
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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
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his or her defence at the close of
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The High Court has unlimited origin
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Commission should first undertake f
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court of appeal for cases in tradit
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The Constitution provides for the L
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(CIDA), the Norwegian Agency for De
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annually financed by grants and con
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to pay lawyers in private practice
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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
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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
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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 and 102: held disciplinary hearings relating
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Page 105 and 106: By September 2005, the country had
Page 107 and 108: Legal Education and Legal Practitio
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Page 114 and 115: on public goodwill to support any r
Page 116 and 117: crime-fighting operations. The oper
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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
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Page 153 and 154: Mwadzangati v Daud Wood t/a Wood Co
Page 155 and 156: The full reports by the ombudsman a
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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
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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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