Justice Sector and the Rule of Law - AfriMAP

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A number of statutory laws remain in force that are inconsistent with the 1994 Constitution andinternational human rights standards. The first category of these laws is those which imposevague and unreasonable limits on specific rights. For example, section 4 of the Protected Names,Flags and Emblems Act, 33 among other things, makes it a criminal offence for anyone to publishanything calculated to ‘insult, ridicule or show disrespect’ to the president. 34 Similarly, section60 of the Penal Code 35 makes it a crime to publish ‘false news’ that is ‘likely to cause fear andalarm to the public or to disturb the public peace.’ Other laws grant wide powers to the executiveto regulate the exercise of internationally guaranteed rights. This is the case with the widediscretionary powers granted by the Police Act 36 to the police to control and, in some cases,prohibit public assemblies and demonstrations. A recent use of the powers arose in July 2004when the police fired teargas and shots—resulting in the death of a girl—to control people whowere demonstrating against the results of the presidential elections announced by the MalawiElectoral Commission in favour of the ruling party candidate. 37Discriminatory laws are the second category of laws inconsistent with international humanrights law and the Constitution. 38 An example of such legislation is the Citizenship Act, 39 whichguarantees automatic citizenship to any woman who marries a Malawian citizen, but does notguarantee automatic citizenship to a man who marries a woman who is a Malawian citizen. 40The act also provides that any Malawian woman who is married to a non-Malawian citizenmay be deprived of her citizenship if she does not formally declare, within the first year of hermarriage, that she has not acquired her husband’s citizenship. 41 The act does not make similarprovision for Malawian men who marry non-Malawian women. 42There is a third category of laws that are inconsistent with international human rights lawand the Constitution. This category consists of laws that are inconsistent with human rightsnorms related to procedural justice, such as those that entitle every person accused of a crime toa fair trial. For example, section 283(1) of the Penal Code, which creates the offence of theft by
public servant, provides that a public servant who fails to account for money or property that heor she had in his or her custody by virtue of his or her employment, ‘shall, unless he [or she] satisfiesthe court to the contrary, be presumed to have stolen such money or other property, and shallbe convicted of the felony of theft.’ The High Court has stated that this provision is inconsistentwith the presumption of innocence. 43 Other examples of laws in this category are sections 313and 314 of the Criminal Procedure and Evidence Code, 44 which impose on the accused person ina criminal trial the obligation to enter his or her defence at the close of the case for the prosecutionand to give evidence (for court challenges to these provisions, see further below, p.10).Most of the Malawian laws that are inconsistent with international human rights law andthe country’s Constitution are a legacy of the colonial era. They were adopted and, in some cases,modified by the post-colonial government and survived the political transformation of 1994,which included the adoption of a Constitution with human rights guarantees. The Constitutiondeclares that laws that are inconsistent with it are invalid; nevertheless, successive governmentssince 1994 have applied laws that courts have found to be inconsistent with human rights protection.The government has also permitted the continued application of customary laws that arearguably inconsistent with human rights standards.In addition to legislation, some customary laws are discriminatory, such as those that prohibitwomen from marrying polygamously but do not impose a similar prohibition on men.These laws are applied on a daily basis among the majority of the population. 45 The positionregarding polygamy may, however, change if the government adopts and Parliament enacts aproposal by the Law Commission to outlaw all polygamous marriages. 46Any law can be challenged on the grounds that it violates the Constitution. Section 5 of theConstitution declares that any act of government or any law that is inconsistent with the provisionsof the Constitution shall, to the extent of such inconsistency, be invalid. Further, section199 provides that the Constitution shall have the status as supreme law of the land and that thereshall be no legal or political authority save as is provided by or under this Constitution. Finally,
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 and 44: However, the government withdrew th
Page 45 and 46: provides the legal framework within
Page 47: order. In 1993, after pressure from
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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