Justice Sector and the Rule of Law - AfriMAP

significant backlog of recommendations, some of which had been awaiting implementationfor as long as five years. Some of the major outstanding reforms related to the administrationof justice and promotion of the rule of law were those recommended in reports on the reviewof the Penal Code, the Criminal Procedure and Evidence Code and the Police Act of 1946. Inall three reports, the Law Commission had drafted bills that incorporated the recommendationsoutlined in the reports. Other outstanding proposals were related to the Censorship and Controlof Entertainments Act and the Wills and Inheritance Act.There are a number of reasons why proposals for law reform submitted by the LawCommission might have not been implemented promptly or at all. The first is that the LawCommission is not the only source of proposals for law reform and its proposals have to competefor space on the government’s legislative calendar with proposals from other sources. Significantexamples of legislation that derived from proposals made by institutions other than the LawCommission include the Employment Act of 2000 (Act 6 of 2000), the Workers CompensationAct of 2000 (Act 7 of 2000), the Non-Governmental Organisations Act of 2001 (Act 3 of 2001),the Irrigation Act of 2001 (Act 16 of 2001), the Biosafety Act of 2002 (Act 13 of 2002), the PublicAudit Act of 2003 (Act 6 of 2003), the Public Finance Management Act of 2003 (Act 7 of 2003),the Public Procurement Act of 2003 (Act 8 of 2003), the Science and Technology Act of 2003 (Act17 of 2003), and the Prevention of Domestic Violence Act of 2006 (Act 5 of 2006).There is no evidence to prove that any special interest groups were responsible for obstructingthe process of enacting Law Commission proposals into law. In at least one case, however,such obstruction is likely to arise. This is in relation to proposals to reform laws related tomarriage and divorce, which were presented by the Law Commission in November 2005 at anational consultative workshop which drew participants from a wide cross-section of Malawiansociety. One proposal made by the commission recommends that polygamous marriagesshould be outlawed in Malawi. 114 This proposal runs counter to the rights claimed by a largenumber of men in Malawi under either traditional customary laws or religious norms, such asthose governing Muslims. In fact, at the consultative workshop, representatives of the MuslimAssociation of Malawi indicated their opposition to the abolition of polygamy suggested by theLaw Commission. 115 It is too early to say whether special interest groups championing customarylaw rights will join this opposition and whether it will block the process of translating theproposals by the commission into law. However, it is reasonable to expect that, at the very least,the expression of such opposition is likely to make the cabinet and Parliament proceed withcaution in implementing such a radical law reform, lest it alienate traditionalists and adherentsof religious faiths that consider polygamy to be a right.Although the Law Commission is a constitutional body that is supposed to be funded bythe government, most of the resources for its programmes are provided by external donors. Thecommission’s 2003–2006 budget indicates that the review of gender-related laws was funded bythe United Nation’s Children’s Fund (UNICEF), the Canadian International Development Agency