Justice Sector and the Rule of Law - AfriMAP

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to pay lawyers in private practice to provide legal aid. 138 Lack of funds may also partly explain thefailure of the government to meet its constitutional obligation to provide prisoners with adequatefood and medical treatment. 139In other cases, government violations of the law have involved breaches of regulationsand other subsidiary legislation by government functionaries acting in their official capacities.The ombudsman has observed, for example, that the most serious acts of maladministrationin Malawi include those that result from the failure of public officials to adhere to laiddownprocedures. 140 Such procedures are provided for in part in the Malawi Public ServiceRegulations, Public Service Commission Regulations and financial procedures laid out in treasuryinstructions. 141 The current trend appears to be towards more government respect for regulationsand internal regulations. There appear to be two reasons for this. First, decisions ofthe ombudsman against procedural injustices are reported regularly in the local media. 142This has a strong deterrent effect on government officials who are tempted to act contrary to regulationsand internal procedures. Second, the ombudsman has sensitised some human resourcemanagers in the government to the importance of following laws, regulations and proceduresthrough a number of workshops and seminars. 143 This reduces the number of cases in which thegovernment violates the law solely due to the failure of a functionary to appreciate the legal significanceof regulations and internal procedures as well as the consequences of disobedience. In theory, the law in Malawi provided for judicial review of executive decisions even before theenactment of the current Constitution in 1994. Much of the activity in this area, however, wasinfluenced by the fact that Malawi was a one-party state with an authoritarian executive that wasvirtually above the law. Judicial review was, therefore, limited in practice to challenges againstthe decisions of minor government functionaries, particularly police officers who had custodyof criminal suspects. The 1994 Constitution expanded the arena of judicial review by providingunequivocally in section 108 that the High Court has jurisdiction ‘to review any law and any
action or decision of the Government for conformity with [the] Constitution…’ The political conditionsalso changed, in that the all-powerful one-party government was replaced by a multipartyregime based on the principles of liberal democracy, including accountability. By 2005, judicialreview of executive action was routine, and included review of decisions and actions of the presidentand other high-ranking public officials.Judicial review has been used effectively to reverse government decisions made at variouslevels, from a decision of the president to ban public demonstrations 144 to the decision of theminister of education to dismiss a teacher at a government school for giving an example tohis class which the minister considered to be disparaging of the president, 145 to the decisionof the principal secretary for commerce and industry to withdraw an import licence that hadbeen granted to an applicant without giving him reasons for the withdrawal. 146 Decisions of theParliament of an administrative nature have also been reviewed. 147The procedure for judicial review of administrative action is governed by rules that areprohibitively complex for most people who are not lawyers. Although judicial review is basedon the Constitution, its detailed procedures are derived from the Rules of the Supreme Courtof England and Wales, as amended from time to time. Order 53 of the Rules sets down requirementsthat are more difficult to meet than those requirements in procedures for civil actionsthat are commenced by writs of summons or criminal actions. First, judicial review effectivelyinvolves two sets of proceedings: the first for leave to seek judicial review, and the second thereview itself. The former must be supported by a statement setting out the grounds on whichthe relief is sought and by affidavits verifying the facts relied on. At this stage, disclosure ofdocuments and cross-examination of witnesses is not automatic and is only granted if it is in theinterests of justice. These and other additional technicalities make judicial review overly technicaland best undertaken by lawyers. This limits its utility for those who cannot afford lawyers. InMalawi, that constitutes the majority of people.The Civil Procedure (Suits by or against Government or Public Officers) Act furtherlimits the effectiveness of judicial review. 148 Section 10(1) prohibits courts from grantingan injunction against the government (that is, an order that the government not carry outsome specific action). Section 10(2) prohibits courts from granting any person who sues anindividual public servant a remedy that would not have been granted had the governmentbeen sued directly. Thus, for example, one cannot obtain an injunction against a publicofficer if this is effectively an injunction against the government. Section 4 of the act alsorequires that any person who wants to sue the government or any government official must
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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
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 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 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
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Since 1996, the Public Service Act
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a change of behaviour of police off
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mechanisms for enforcing the author
Page 124 and 125:
minister responsible for justice au
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The official language of the courts
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According to the study, the crimina
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his or her continued incarceration.
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Conference in 1995. 446 The confere
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the Prison Inspectorate, the Prison
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long-standing problems. 473 Followi
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national standards on the rights of
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There is only one known facility th
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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
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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
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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
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Most development partners provide t
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Donors hire their staff both locall
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Department of Legal Aid, the judici
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national budget. In the event, the
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Indicative summary of donor assista
Page 182 and 183:
Phiri KM and Ross KR (eds.), Democr
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Kalekeni Kaphale, lawyer in private
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