Justice Sector and the Rule of Law - AfriMAP

More documents

Recommendations

Info

Physical barriers are mainly geographical. The majority of the people live in remote ruralareas, and in some cases, people have to walk for up to eight hours to reach their nearest court.The effect of the distance is made worse by the fact that most rural areas do not have regularpublic transport. Where public transport exists, it is prohibitively expensive. Asylum seekers andrefugees are confined to camps, and thus are almost completely excluded from the formal justicesystem. The design of some courts and other justice institutions in Malawi make no provision forthe mobility of people with physical disabilities; an example is the High Court in Blantyre whichhas no ramps for wheelchair access.Financial barriers consist mainly of the relatively high financial cost of paying court andlawyers’ fees and transport costs. Although court fees may appear to be low, the majority ofMalawians live below the poverty line, on an income of less than K140 (approximately US$1) perday. These income levels also mean that only a minuscule number of Malawians can afford tohire private lawyers, who demand as much as K10 000 (approximately $70) for an initial depositand K7 000 (approximately $50) per hour thereafter. Unfortunately, neither the Ministry ofJustice’s Department of Legal Aid nor non-governmental organisations have sufficient resourcesto provide the poor with a way round the barrier of lawyers’ fees.Another factor that limits access to the formal justice system by the majority of people is thefact that English is the official language of the courts—although it is estimated that only a negligibleproportion of the population is fluent in it. The Constitution does guarantee every personthe right to be tried in a language which he or she understands or, failing this, to have the proceedingsinterpreted, at the expense of the state. In practice, the judiciary ensures that there is aninterpreter in any case in which the defendant does not understand English. However, standardsof interpretation are generally poor, particularly in relation to technical words.In order for the constitutional right to have access to justice and legal remedies to havepractical meaning, the judiciary, the Malawi Law Society, the Ministry of Justice and relevantnon-governmental organisations should develop a plan aimed at removing the major obstacleswhich impede access to formal justice, particularly by the poor and other marginalised socialgroups. Such a plan should include measures aimed at expediting the establishment of courtslocated close to the people in rural areas; improving the physical infrastructure of justice institutionsso that they can be accessed by all, including people with physical disabilities; reducingcourt fees; expanding the availability of pro bono legal services; and introducing flexibility in thelanguage policy of the courts to allow more use of local languages in official proceedings. Theproposed plan to increase access to justice should take special account of the needs of historicallydisadvantaged groups. With regard to women, for example, the following recommendationmade by the UN Committee on the Elimination of Discrimination against Women in June2006 must inform the plan: ‘[The Committee] further urges [Malawi] to take special measuresto enhance women’s awareness of their rights, legal literacy and access to the courts to claim alltheir rights.’
As a result of these barriers, most people in Malawi do not rely on formal court systems to deliverjustice. Instead they depend on non-state institutions, of which the most frequently used aretraditional leaders, traditional family counsellors (ankhoswe), religious leaders, and community,non-governmental and faith-based organisations. The most common types of disputes dealt within these fora involve land, chieftaincy, marriage and domestic violence, and the most prolificof the various non-state justice fora are those presided over by traditional leaders. It has beenestimated that the country has over 20 000 traditional leaders of varying levels of seniority whoadminister justice in almost every village. The activities of the non-state fora, which are sometimesreferred to as primary justice or informal mechanisms, do not appear to be factored sufficientlyinto the strategy and plans of most state-connected justice sector institutions. Althoughthe Constitution allows for ‘traditional or local courts’ to be established, no legislation has beenenacted to give effect to this provision; the Traditional Courts Act dating from the colonial periodand expanded in authority under the regime of Hastings Kamuzu Banda remains technically inforce, but the courts it regulated were abolished with the transition to a multi-party system inthe early 1990s.The government should integrate the non-state or primary justice mechanisms more coherentlyinto the planning and funding for the justice sector. If formally established and governed bylegislation, ‘traditional or local courts’—which the constitution provides shall be presided over by‘lay persons or chiefs’—have the potential to make the formal judiciary more accessible for morepeople. Some traditional authorities are likely to be integrated into the state’s judicial structureif the Law Commission’s current recommendations for the reform of the Traditional Courts Actare adopted and implemented by the state. However, in order for that accessibility to be optimised,the amendment of the Traditional Courts Act recommended by the Law Commissionand subsidiary legislation should provide for the use of local languages in proceedings and feesthat are affordable by the poor. The law should require traditional authorities who preside overtraditional courts not to perform executive functions, in order to avoid violating internationalstandards such as those set out in Chapter Q of the Guidelines and Principles on the Right toFair Trial and Legal Assistance in Africa adopted by the African Commission on Human andPeoples’ Rights in 2003. These include the requirement that traditional courts be independentof the executive branch.Once the ‘traditional or local courts’ become operational, it will also be important for thechief justice to instruct them to uphold human rights, with emphasis on the right to equality ofpersons before the law—particularly as between male and female litigants, bearing in mind thepoor record of most traditional institutions in perpetuating institutionalised socio-cultural biasagainst women. The state, in collaboration with other parties interested in improving accessto primary justice such as civic education and human rights groups, as well as developmentpartners, should provide basic training in constitutional principles of fair trial to primary justiceinstitutions (such as traditional leaders) at all levels.At its 35 th session in June 2006, the United Nations Committee on the Elimination ofDiscrimination against Women recommended that ‘[Malawi] ensures the constitutionality of the
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 10 and 11: The 1994 democratic Constitution th
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: tions consistent with human dignity
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
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 and 102:
held disciplinary hearings relating
Page 103 and 104:
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
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 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
show all

Justice Sector and the Rule of Law - AfriMAP

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?