Justice Sector and the Rule of Law - AfriMAP

This discussion paper is based on the main findings and recommendations of a comprehensivereport on the justice sector and rule of law in Malawi commissioned by the Open SocietyInitiative for Southern Africa (OSISA) and the Open Society Foundation’s Africa GovernanceMonitoring and Advocacy Project (AfriMAP) in 2005. The paper is not a summary of the mainreport, although it draws from it the key challenges that face the promotion of the rule of lawand justice in Malawi, based on the expert and public opinion that emerged in the course of theresearch for the main report. The paper is intended to be used as the principal tool in an advocacyinitiative led by the Law Faculty of the University of Malawi, OSISA and AfriMAP, working witha wide range of stakeholders involved in the promotion of justice and the rule of law in Malawi.The paper is also informed by certain basic characteristics of the justice sector in Malawi,including its purported philosophical connection to international values and principles; the limitationsof the autonomy and accountability of institutions created by a state which historicallyhas been highly centralised; the failure of the crime and punishment regime to modernise andcope with contemporary social and economic challenges; and the limited responsiveness of theformal justice system to the needs of the majority of the population, particularly those that arevulnerable and marginalised.The paper makes recommendations for action which generally fall into three categories:legal and policy reforms; institutional restructuring; and changes in administrative and managementpractices. The recommendations vary in specificity and have not been prioritised. Thelatter ‘omission’ is deliberate in order to promote genuine discussion among practitioners whoare better qualified to determine the order of priority of recommendations given their experienceof what is practicable in the social, economic and political context. In any case, the list ofrecommendations in this paper cannot be regarded as exhaustive and remains open to informeddebate and revision.