Justice Sector and the Rule of Law - AfriMAP

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give the attorney-general two months notice. 149Arguably, the prohibition on injunctions against the government under section 10(1) ofthe Civil Procedure (Suits by or against Government or Public Officers) Act is inconsistent withsection 41(3) of the Constitution, which grants every person the right to an effective legal remedyby a court of law or tribunal for acts violating the rights and freedoms granted to him by theConstitution or any other law. In some cases, the only effective remedy may be to stop the governmentfrom undertaking or continuing a particular action (for example, halting road constructionwhile the lawfulness of the demolition of a house is considered). The courts have not taken oneclear position on this point. On the one hand, they have upheld the law that prohibits issuinginjunctions against the government, and have not considered it to be in violation of section 41(3)of the Constitution. 150 On the other hand, the High Court has issued injunctions against the governmenton a number of occasions. In the case of The Administrator of the Estate of Dr H KamuzuBanda v The Attorney-General, 151 for example, the High Court issued an injunction prohibitingthe government from taking certain steps to acquire a cattle ranch that had been granted to thecountry’s former president by a traditional authority. In the view of the court, the injunction wasnecessary partly because it would secure property rights guaranteed by the Constitution. TheHigh Court also issued an injunction in the case of Peter von Knipps v Attorney-General, 152 orderingthe government not to deport the applicant or deny him re-entry into Malawi pending thehearing of his application for judicial review of the government’s decision to declare him to bea prohibited immigrant. The court justified its decision on the grounds that the injunction wasnecessary to facilitate the applicant’s effective enforcement of his constitutional rights, includingthe right to an effective remedy.If remedies litigants obtain against the government are to be fully effective and comprehensive,they must include injunctions. It is, therefore, recommended that section 10(1) of the CivilProcedure (Suits by or against Government or Public Officers) Act should be repealed. Pendingsuch repeal, it is important that the courts should take one clear position regarding whether the lawprohibiting the issuing of injunctions against the government is consistent with the Constitution’sguarantee of the right of every person to an effective legal remedy. The courts should not leave roomfor uncertainty on this question, because it has a significant bearing on the broader question of theeffectiveness of judicial review of executive action. 153Immunity from criminal prosecution granted to certain public office holders also limitsjudicial review. The Constitution grants immunity from prosecution to particular public officials
in certain circumstances. Section 91 of the Constitution grants the president immunity frombeing charged with any criminal offence, except on impeachment, during his or her term ofoffice. In addition to the president, members of parliament are immune from any action orproceedings in any court, tribunal or body other than Parliament for anything they say in thecourse of proceedings in the National Assembly. 154 The Constitution also grants immunity tothe ombudsman in relation to acts done in the course of the performance of his or her officialfunctions. 155 Examples of other laws that grant immunity to public officers include the CorruptPractices Act, which grants immunity to the director, deputy director or other officers of the Anti-Corruption Bureau for anything they do or fail to do in good faith in the exercise of his or herduty under the act 156 and the Registered Land Act, 157 which grants similar immunity to the chiefland registrar and all other officers of land registries. In common with other Commonwealth jurisdictions, Malawi provides for judges to be involvedin oversight of executive action, not only in the courts by judicial review, but also through theappointment of ad hoc judicial commissions of inquiry into matters of national concern.The president is given the right to establish commissions of inquiry by section 89(1)(g)of the 1994 Constitution, though the detail of their operation is still governed by the colonialeraCommissions of Inquiry Act. 158 Commissions of inquiry established by the president arefinanced by money from the national budget channelled through the Office of the President andCabinet. In theory, the president can interfere with the provision of funding for any particularcommission and render it ineffective. There is no evidence, however, that this has ever happenedin practice. In general, there is no evidence to suggest that the executive has sought to influencethe findings of any commission of inquiry. The main use of such commissions of inquiry hasbeen to respond to public demands that matters of political controversy be thoroughly investigated.Since 1994, the president has appointed a number of such commissions, including commissionsthat investigated the police assassination of three cabinet ministers and a member ofparliament in 1983, 159 and a decision by the government to sanction the export of maize fromthe strategic grain reserve by the National Food Reserve Agency in the face of an impending
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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
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The 1994 democratic Constitution th
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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 66 and 67: to pay lawyers in private practice
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
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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
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In addition to distance, other fact
Page 147 and 148:
ing any person access to the courts
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There have been several initiatives
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Any person or group of persons with
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Mwadzangati v Daud Wood t/a Wood Co
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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
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officers of the ‘traditional or l
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The justice sector in Malawi is hea
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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
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Phiri KM and Ross KR (eds.), Democr
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Kalekeni Kaphale, lawyer in private
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