Justice Sector and the Rule of Law - AfriMAP

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protecting members of civil society from intimidation and victimisation. 632Some assistance to the justice sector has also contributed to the promotion of economicand social rights, albeit indirectly. For example, it is arguable that assistance that is designedto contribute to the reduction of corruption, such as that provided by Norway and the AfricanDevelopment Fund, 633 in the long run promotes the right to development because, if unchecked,corruption tends to reduce the resources available for the government to spend on povertyreducingactivities, 634 and reinforces unequal distribution of wealth at the expense of the poor,the weak and the vulnerable in society. 635The last time that development assistance in general was linked to any sort of human rightsconditionality to any significant extent was in May 1992 when most of the Western governmentsthat provided aid to Malawi suspended that aid in protest at the government’s failure to democratiseand uphold human rights. 636 The imposition of that conditionality was one of the mostcritical factors that compelled the government to institute the reforms that led to the adoption ofa multiparty system of government and the Constitution of 1994 with its extensive guaranteesof human rights. 637 Since then, conditions on development assistance have related to demandsby donors for various structural adjustment policies and fiscal management measures. The mostrecent experience of this was in 2001. Every year from 1994 to 2001, government expenditureexceeded the budget passed by Parliament and agreed with the IMF, as part of the condition forits assistance. Such expenditure also breached the condition for aid from the United Kingdom,the EU, Norway and Sweden, all of whom consequently suspended their assistance (otherthan humanitarian assistance) which represented 23 per cent of all budgeted revenue for the2001–2002 financial year. 638Ultimately, the loss of budget assistance drastically reduced the amount of governmentfunding for anything other than non-discretionary items such as payment of interest, transfers tothe Malawi Revenue Authority and Malawi Roads Authority, pensions and gratuities and salariesand wages. 639 This excluded most operations of institutions in the justice sector and resulted inreduced funding for the operations of institutions that are supposed to facilitate protection ofhuman rights, including the Human Rights Commission, the Office of the Ombudsman, the
Department of Legal Aid, the judiciary, the Malawi Police Service and the Malawi Prison Service.This had a negative impact on the protection of women, the poor, prisoners and other vulnerablegroups who rely on the assistance of such institutions.By 2005, the government had re-established its discipline sufficiently to convince the IMFand the other donors to resume their assistance. 640 This augurs well for improved funding forjustice sector institutions and their consequent ability to offer better protection of the humanrights of vulnerable groups. The suspension of aid obviously dislocated on-going programmesof various justice sector institutions at the expense of their beneficiaries. However, to the extentthat it provided the incentive for government, including justice sector institutions, to exercisemore fiscal discipline, its long-term impact was positive. After all, if justice sector institutionshave such discipline, it will ensure that resources are directed at benefiting their intended beneficiariesand are not wasted. There are no obviously deliberate attempts by donors to the justice sector to restrict access toinformation about their assistance by interested parties. Representatives of donor and recipientinstitutions are often willing to provide such information in interviews and in the form ofreports and budgets. In relation to Malawi government institutions in the justice sector, some ofthat information is also available as part of the information on the national budget. Some of theinformation about development assistance to the justice sector is available online, a source thatproved to be extremely helpful in providing information necessary for the completion of this partof the report. The information that is available online includes copies of some of the cooperationagreements signed between the Malawi government and development partners; 641 generaldescriptions of the programmes of support; 642 reports of reviews and evaluations; 643 and detailsof support to specific institutions in the sector in relation to the national budget. 644
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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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give the attorney-general two month
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country-wide food shortage in 2000.
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upon the seriousness of the governm
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country’s vice-president. 173 Amo
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tutions of the justice sector were
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efforts to lobby the government to
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controlled by the Treasury. 201 The
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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
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held disciplinary hearings relating
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for the case from the date when the
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By September 2005, the country had
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Legal Education and Legal Practitio
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Both lawyers and members of the pub
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lished between extreme poverty and
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on public goodwill to support any r
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crime-fighting operations. The oper
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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
Page 153 and 154: Mwadzangati v Daud Wood t/a Wood Co
Page 155 and 156: 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: Donors hire their staff both locall
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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