Justice Sector and the Rule of Law - AfriMAP

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2 October 1995, the African Commission on Human and People’s Rights issued the only rulingdelivered since Malawi became a party to the charter, finding Malawi in violation of several provisionsof the Charter, including the right to life, prohibition of torture, the right to liberty and theright to legal representation. The case was brought on behalf of two prominent political figures,Orton Chirwa, his wife, Vera Chirwa, and Aleke Banda. In 1981, the Malawi security officialstook Orton and Vera Chirwa into custody; they were sentenced to death for treason at a trial inthe Southern Regional Traditional Court. They had been abducted from Zambia where they hadbeen living since 1964 because of political differences with Malawi’s President Hastings KamuzuBanda. Orton and Vera Chirwa were held in solitary confinement, given extremely poor food andinadequate medical care, shackled for long periods of time within their cells and prevented fromseeing each other for years. Their sentences were upheld by the National Traditional AppealsCourt. After international protest, the sentences were commuted to life imprisonment. Whenthe case was filed, Aleke Banda had been imprisoned for twelve years and had yet to face a legalcharge or a trial. The commission noted that Malawi had undergone important political changesafter the case had been lodged; the commission, however, held that ‘the change of governmentdid not affect the existence of responsibility for human rights abuses by the previous administration.’Although the new, elected government of Malawi did not commit the human rights abusescomplained of, the commission concluded, ‘it is responsible for the reparation of these abuses.’ 11The government has since paid K5 million in compensation to Vera Chirwa, though her claimwas for a considerably larger amount. 12 By 2006, the government had not made reparation toAleke Banda, whose application to the National Compensation Fund remained pending becauseit had not been made within the statute of limitations set by the Constitution for reparationsfrom the fund. 13Since this ruling, the general political environment in Malawi has changed. There are nopolitical prisoners in the country. The government generally respects human rights. However,the government has not had an opportunity to show how it would respond to the ruling of aninternational body, particularly if such a ruling was in conflict with some perceived nationalinterest.The conformity of Malawi’s national laws to international standards is also subject to reviewby the country’s judiciary. Section 11(2)(c) of the Constitution obliges courts ‘to have regard tocurrent norms of public international law and comparable foreign case law’ when interpretingthe provisions of the Constitution.’ The government has expressed its readiness to bring perpetratorsof gross human rights violations to justice by becoming a party to the Rome Statute on theInternational Criminal Court. 14 Malawi’s Geneva Conventions Act of 1967 15 is another law that
provides the legal framework within which Malawian courts can assume universal jurisdictionover anyone accused of crimes against humanity. Section 4(1) of the act provides that nationalcourts may exercise universal jurisdiction over grave breaches of the Geneva Conventions.Malawi’s courts, however, have never invoked these provisions.Section 211 of the Constitution provides for the incorporation of international human rightsstandards into national law, but practice in Parliament has resulted in uncertainty as to howinternational treaties are to come into force in Malawi. Sub-section 211(1) provides that ‘any internationalagreement ratified by an Act of Parliament shall form part of the law of the Republic ifso provided for in the Act of Parliament ratifying the agreement’. Sub-section 211(2) provides thatbinding international agreements entered into before the Constitution came into force continueto bind the state ‘unless otherwise provided by an Act of Parliament.’ The intention of sub-section(1), as the Law Commission has pointed out, ‘would appear to be to require that under the newConstitution treaties shall bind Malawi only if they have been ratified by Parliament or throughan Act. Its wording, however, is somewhat confused.’Poor wording or not, there has been no specific legislation that sets out the appropriateprocedure for the incorporation of international human rights standards into national law.Parliament is thus left with the discretion to determine how best to incorporate particular internationalstandards into Malawian law. This has resulted in a lack of uniformity in the domesticationstrategy. It also has produced uncertainty as to whether particular international standardshave been incorporated at all. In some cases, Parliament has passed legislation that expresslymakes particular international standards part of Malawian law. This is the case with the RefugeeAct (1989) 16 , whose long title states that the aim of the act, among other things, is ‘to give effectto refugee conventions as defined in the Act.’Section 2 of the act defines the relevant conventionsto be the Convention Relating to the Status of Refugees (1951), the Protocol Relating to the Statusof Refugees (1967) 17 and the Organisation of African Unity Convention Governing the SpecificAspects of Refugee Problems in Africa (1969). 18 Another example of a statute that expresslyincorporates specific treaties into domestic law is the Geneva Conventions Act (1967).A review of the country’s statutory laws shows that Parliament has rarely passed speciallegislation to domesticate entire treaties. The more common practice is for Parliament to enactparticular treaty obligations only by implication, through legislation that includes international
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 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: However, the government withdrew th
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
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Justice Sector and the Rule of Law - AfriMAP

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