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Malawi: Legal System and Research Resources

 

By Redson Edward Kapindu

 

Redson Kapindu is the Deputy Director of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), which is based at Constitution Hill in Johannesburg. He is also a Ph.D. Candidate at the Oliver Schreiner Law School at the University of the Witwatersrand. He holds an LL.B. (honors) from the University of Malawi; an LL.M. from the University of Pretoria; a Diploma in International Human Rights from Lund University; and a Diploma in International Refugee Law from the Universidad Internacional Menéndez Pelayo (UIMP).

 

Published January 2009

 

 

Table of Contents

1. Introduction

2. Government Structure and System

2.1. Introduction

2.2. The Executive

2.3. The Presidency

2.3.1. The Presidency and Constitutional Cornerstones

2.4. Cabinet

2.5. The Legislature

2.6. The Judiciary

2.6.1. Court Structure and Hierarchy

2.6.2. The Judiciary and Constitutional Cornerstones

3. Sources of Law

3.1. The Constitution

3.2. Legislation

3.3. Common Law

3.4. Customary Law

3.5. Religious Law

3.6. International Law

3.7. Doctrines of Equity

3.8. Conventions

4. Hierarchy of Laws

4.1. The Constitution

4.2. Legislation

4.3. International Law

5. Legal Education

6. The Legal Profession

7. Institutions Strengthening Constitutional Democracy

8. Legal Aid in Malawi

9. Legal Research

9.1. Laws of Malawi Series

9.2. Law Reporting

9.3. Publications

9.4. Legal Journals

9.5. Main Legal Publishers

9.6. Law Schools

 

1. Introduction

Malawi is located in South-Eastern Africa. It is a landlocked country bordering Tanzania to the north, Zambia to the West, and Mozambique, with which it shares a long border to its South East, South, and South West. It has a territory of about 118, 484KM2. Of this territory, about 20% is taken up by Lake Malawi, which comprises an area of about 24, 400 KM2. It is a freshwater lake that is indisputably the most prominent topographical feature of the country. Malawi’s population is estimated at 13.1 million.[1] Given its territory and relative to its population, Malawi is one of the most densely populated countries in the world.[2] The country became a British colonial protectorate in 1891 with Sir Harry Johnstone as Commissioner. In 1893, it was named the British Central Africa Protectorate.[3] In 1907, it was renamed Nyasaland, under the Nyasaland Order in Council (1907) of 6th July 1907.[4] In 1953, the British Colonial Government decided to form the Federation of Rhodesia and Nyasaland, which comprised the territories of Southern Rhodesia (now Zimbabwe), Northern Rhodesia (now Zambia) and Nyasaland (now Malawi). The Federation was dissolved on 31st December 1962, and the territory of Nyasaland attained self-government from Great Britain in 1963 with Dr. Hastings Kamuzu Banda as Prime Minister.

 

Political independence was attained on 6th July 1964, whereupon the name Nyasaland was changed to Malawi.[5] A Constitution drafted by the Colonial Office at Lancaster House in London was adopted. The Constitution had an entrenched Bill of Rights guaranteeing a broad range of essentially civil and political rights. However, Malawi retained the British Monarch (Queen Elizabeth II) as Head of State, represented in Malawi by Governor General Sir Glyn Jones until 6th July 1966, when Malawi became a Republic with a new Constitution. Under the new Constitution, the President became Head of State and Government. The Constitution vested sweeping powers in the newly created office of President, thus entrenching what might be called presidential supremacy in the country. The 1966 Constitution had two major features which paved the way for authoritarian rule. First, the Bill of Rights entrenched in the Constitution of 1964 was removed. Second, the new Constitution introduced a one-party system of Government, declaring that the Malawi Congress Party (MCP) would be the only political party in the country. Between 1964 and 1971, Dr. Banda strengthened his grip on power. Dr. Banda thoroughly controlled all organs of government. Independence of the judiciary was an illusion, and the distinction between party and Government was at best extremely blurred.

 

From the early 1990’s, however, international as well as local pressure for the Malawi Government to change and respect human rights intensified. The first major open internal challenge in the 1990s was a pastoral letter entitled Living Our Faith authored by several senior Catholic priests,[6] in which they unequivocally criticised the incumbent government for its disrespect for the rule of law and abuse of human rights. The priests emphasised the need for political reform in this regard.[7] The Priests’ message was greeted with great consternation and hostility by the MCP regime. The Priests were quickly arrested, but they were also quickly released, apparently after the personal intervention of Dr. Banda, who must have estimated the untenable socio-political cost of detaining such high profile public functionaries. [8]

 

What the pastoral letter did, however, was to instil more courage in other political actors harbouring dissident views. Open opposition and defiance to the regime soon followed from such people as trade unionist Chakufwa Chihana and University of Malawi students who openly challenged the system. Chihana himself was arrested, tried, and imprisoned for the offense of sedition in respect of his actions and pronouncements.[9] However, with mounting pressure, Dr. Banda capitulated and announced in October 1992 that there was going to be a national referendum in which Malawians would be given the option to choose between maintaining the status quo of a one-party system and life presidency, and adopting a multiparty system of government. In November 1992, Parliament passed the Constitution Amendment (Referendum on Malawi's Political System) Act[10] that provided that the President might at any time call a referendum by which eligible citizens of Malawi would be asked to cast their votes to determine any matter or issue of national interest. This was followed by a series of regulations made under that Act in order to effectuate the holding of the national Referendum that was held on 14th June 1993.

 

In the referendum, Malawians voted by a majority of slightly over 63% for change from the one-party system to a multiparty system. Following the Referendum, a Constitution (Amendment) Act[11] was passed, providing that Malawi was to be a multiparty State, and that the provisions of the Constitution were to continue to apply until the assumption of power by the Government that would follow the first multiparty general elections. It was this curiously little known but clearly quintessential constitutional amendment that changed Malawi’s political system from a one-party State to a multiparty State. Further, the country also saw a multiplicity of other constitutional and legislative reforms. These included the inclusion of a (frequently unnoticed) Bill of Rights into the 1966 Constitution (Chapter IA);[12] the repeal of the Decency in Dressing Act,[13] abolition of the life Presidency;[14] and the passing of the General Amnesty Act [15]that allowed many Malawians who had been exiled during the thirty year rule of Dr. Banda to return to Malawi without risk of arrest and prosecution. General elections, widely considered as free and fair, were held on 17th May 1994, leading to the defeat of Dr. Banda by one of his former Ministers, Bakili Muluzi. It is noteworthy that the 1994 elections were held under the 1966 Constitution and not the Constitution of 1994.

 

On 16th May 1994, a day before the elections, Parliament passed the Republic of Malawi (Constitution) Act, 1994 (Act No. 20 of 1994) repealing the Constitution of 1966 and bringing into force the new (1994) Constitution. Although formally the political system was effectively changed soon after the 1993 Referendum as shown above, in common parlance, the date of 17th May 1994 is generally regarded as the commemorative date for Malawi’s political transformation from one-party authoritarian rule to multiparty democracy-perhaps on account of its symbolic significance as it formally marked the end of the Banda-MCP regime; and also perhaps in view of the fact that the new Constitution came into force on that day. I however believe that this approach is rather misconceived and tends to downplay the fundamental importance and significant enormity of the 1993 Referendum and the attendant reforms it precipitated.

 

In the following pages, this article briefly discusses Malawi’s constitutional and legal system. It also provides a catalogue of some legal resources that a student of Malawian law might refer to in the course of researching the Malawi legal system and Malawian law generally. The article is not meant to be a comprehensive academic piece; but it is hoped that it will introduce the system to the reader encountering it for the first time.

 

 

2. Government Structure and System

 

 

2.1. Introduction

Malawi is a unitary State which has a unicameral legislature.[16] As already observed, until the mid 1990s, Malawi had a system of Government that essentially entrenched presidential dictatorship, with no checks and balances among the Executive, Legislature and Judiciary. There was no culture of openness and accountability to the people in respect of the exercise of the powers of State. Simply put, it was tyranny of the Executive. The 1994 Constitution brought about a paradigm shift – moving away from presidential supremacy to constitutional supremacy. In Fred Nseula v. Attorney General & Another,[17] Mwaungulu J expressed the raison d être of the new Constitution, stating that ‘looking at the debates and discussions on the Constitution…the main thrust of the 1994 Constitution is to forestall tyranny whether it be by political will expressed in executive or legislative action.’

 

An examination of the Preamble to the Constitution reveals that in framing and adopting the 1994 Constitution, the people of Malawi sought to establish a new constitutional order founded upon three overarching cornerstones of Government, namely:

 

·       Openness;

·       Representative democracy; and

·       Accountability.

 

Section 12 of the Constitution contains what are referred to as the fundamental principles of the Constitution. In particular, sections12 (i), (ii) & (iii) are important as a premise from which a discussion on the system of Government in Malawi proceeds. These provisions are in the following terms:

i. All legal and political authority of the State derives from the

people of Malawi and shall be exercised in accordance with

this Constitution solely to serve and protect their interests.

ii. All persons responsible for the exercise of powers of State do so on trust and shall only exercise such power to the extent of their lawful authority and in accordance with their responsibilities to the people of Malawi.

iii. The authority to exercise power of State is conditional upon the sustained trust of the people of Malawi and that trust can only be maintained through open, accountable and transparent Government and informed democratic choice.

 

It can be observed from these provisions that in Malawi, the authority to govern or exercise the powers of State derives from the people. Thus Malawi’s constitution assumes a social contractarian order in this regard.[18]

 

Further, the provisions emphasise the concept of trust in constitutional governance. The sustenance of trust as a precondition for the continued exercise of the powers of State buttresses the idea that the authority to govern derives from and rests on the consent of the governed. Subsection (iii) then stresses the three overarching cornerstones of openness, representative democracy and accountability as the only means through which trust can be maintained.

 

Closely intertwined with these overarching cornerstones and fundamental principles is the principle of separation of powers. This principle (or doctrine as it is sometimes called) lies at the core of constitutional democracy sought to be established and nurtured under the new constitutional order. It is cardinal in ensuring accountability in and by Government. In an early seminal article, James Madison in 1788 described the concept of separation of powers within the framework of checks and balances in government.[19] He stated that it was expedient to maintain the necessary partition of power among the several departments, as laid down in the American Constitution in such a manner that by their mutual relations, they would be the means of keeping each other in their proper places.[20]He then proceeded to elucidate the concept in a passage from whence the oft-cited phrase ‘if men were angels, no government would be necessary is taken. He said:

 

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government.[21]

 

The history of governance in Malawi has certainly not been angelic and experience has clearly shown that it is expedient to have external as well as internal controls on government. Thus, these Madisonian inventions of prudence: i.e. limiting the powers of Government generally, and delimiting the specific powers of the constituent principal organs thereof were at the forefront of considerations for establishing constitutional democracy by the framers of the 1994 Constitution. They were a condition sine qua non for putting the nation on a trajectory of constitutionalism and the effective guarantee of human rights.

 

The important space occupied by the principle of separation of powers has received expression in several court decisions. In the case of Attorney General v. Fred Nseula & Another (Nseula Case),[22] the Supreme Court of Appeal held that Malawi’s constitutional ‘democracy is premised on the doctrine of separation of powers.’ It is submitted, however, that as much as the Supreme Court correctly asserted the central importance and role of the doctrine in a democracy, it was perhaps stretching matters a bit to state that democracy is essentially premised on the doctrine. Democracy is primarily premised on the consent of the governed, and consent of the governed in turn engenders the democratic entitlement.[23] It is thus urged in this regard that the better approach is perhaps that adopted in Ex-parte Zaibula v. Council of the University of Malawi,[24] where Ndovi J stated that ‘the principle of separation of powers [is] a basic characteristic of the rule of law and [Malawi’s] democratic system.’ The Court here seems to have taken the approach that separation of powers was simply one of the basic characteristics of a democratic system of government and this is the better view.

 

The doctrine of separation of powers is expressly provided for under the Constitution. Whilst others, such as Ansah, have argued that the doctrine is not explicitly mentioned in the Constitution,[25]I take a different view. The marginal notes to sections 7, 8 and 9 of the Constitution explicitly mention the ‘separate status, function and duty’ of the Executive, Legislature and Judiciary respectively. This to my mind is a clear reference to the doctrine of separation of powers. I am aware that others have urged, with reference to aids to statutory interpretation, that marginal notes are extrinsic to the Act and are not legitimate aids to interpretation. Machika for instance has argued that marginal notes ‘are not part of an Act and are inserted by the draftsman purely for facility of reference. Hence they have not been regarded as aids to interpretation even in the event of ambiguity.’[26]However, this argument seems untenable in present-day practices of legislative drafting and interpretation. Meagher, commenting in the context of the Australian legal system, has luminously stated the rationale behind the old Commonwealth position adopted by Machala and in the process justifying the need to depart from the approach. He states that:

 

The Acts Interpretation Act 1901 of the Commonwealth says as to "marginal notes" that they do not form part of an Act: Section 13(3). Similar provisions apply in the States. This is apparently based on a policy arising from the fact that because Bills debated in the Parliament in days-gone-by contained no such notes (being put there afterwards by the printer), their wording was therefore not a possible subject for debate and should not be part of the Act.[27]

 

In present day legislative drafting, marginal notes are included as part of the Bill from the first official draft, and they are debated together with the whole text of the Bill. They are certainly not included by the draftsperson or the printer after the Bill has already been debated and passed, ex-post facto as it were. Thus, there is no conceivable basis upon which they ought to be excluded as aids to interpretation. Meagher then goes further with his argument, in which I concur, stating that:

 

the Acts Interpretation Act 1901 cannot affect the Constitution. Moreover, the marginal notes of what became the Constitution were inserted in the first draft finalised in 1891 and remained as part of the document debated during the following four Conventions; and also as part of the final draft which went to the people.[28]

 

The same can clearly be said of the Malawian context in respect of the 1994 Constitution. Thus it is submitted that the marginal notes to sections 7, 8 and 9 of the Constitution are part of the Constitution of Malawi and constitute an explicit reference to the doctrine of separation of powers under the Constitution. This is indeed in stark contrast with most constitutions around the world that do not have explicit statements on separation of powers.

 

The argument as to whether the Constitution makes explicit reference to separation of powers was in fact settled by the Supreme Court of Appeal in the case of Attorney General v. Malawi Congress Party & Others (the Press Trust Case) when it stated that ‘the Constitution makes specific provision for separation of powers between the Legislature and the Executive.’[29] The High Court also addressed this point in the case of W. Bongwe & 11 Others v. Minister of Education where Ndovi J stated that:

 

the Malawi Constitution clearly divides the powers of the Executive, the Legislature and the Judiciary: Vide clauses 7, 8 & 9 of the Constitution. It is essential to understand that all the three branches of Government, (a) the Executive, (b) the Legislature and (c) the Judiciary are bound by and work within the confines of the Constitution.[30]

 

The primary responsibilities of the principal organs of the State are spelt out in Sections (7); (48(1) & 66(1)); and (9) of the Constitution, respectively. This paper departs from the common reference to Section 8 of the Constitution as a provision that substantively establishes the primary functions of the legislature, on grounds of principle.[31] As this article shall show later, section 8, which purports to provide for the ‘separate status, function and duty’ of the legislature, falls far short of any meaningful description of and provision for these; and the respite is in sections 48(1) and 66(1) of the Constitution. Below, I briefly discuss the prominent features of these principal organs of Government in light of, inter alia, the foregoing principles of representative democracy, openness and accountability.

 

 

2.2. The Executive

Although Chapter VII of the Constitution is explicitly titled ‘The Executive’, the Constitution does not expressly define the term. However, Section 209(3) of the Constitution provides for the definition of ‘Government’ for purposes of that Section, which I believe is a fair description of the Executive as an organ of State under the Constitution. That Section states that:

 

For the purposes of this section "Government" shall mean the President, the Cabinet, the Ministries, other organs of the President and Cabinet and their agents, including individuals and bodies under the authority of the President, the Cabinet or the Ministries.

 

This is adopted in this discussion as the definition of the Executive under Malawi’s constitutional framework. Section 7 of the Constitution spells out the primary functions and/or responsibilities of the Executive. It provides that:

 

The executive shall be responsible for the initiation of policies and legislation and for the implementation of all laws which embody the express wishes of the people of Malawi and which promote the principles of this Constitution.

 

I now examine the various principal arms of the Executive:

 

 

2.3. The Presidency

The President provides leadership to the Executive. Section 88(2) of the Constitution provides that ‘[t]he President shall provide executive leadership in the interest of national unity in accordance with this Constitution and the laws of the Republic.’

 

The Presidency, for the purposes of this article, comprises the high offices of the President; Vice President and (where applicable) the Second Vice President. The Office of the President is established under Section 78 of the Constitution while that of the Vice President is established under Section 79. Section 80(4) of the Constitution provides that “[t]he First Vice-President shall be elected concurrently with the President.” I discuss below the importance of this requirement in the context of Malawi’s democracy.

 

According to Section 78 of the Constitution, the President is Head of State and Government,[32] and Commander-in-Chief of the Malawi Armed Forces. Further, under Section 88(1) of the Constitution, the President is responsible for the observance of the provisions of the Constitution by the Executive and, as Head of State, he/she is enjoined to defend and uphold the Constitution as the supreme law of the Republic.

 

According to Section 79 of the Constitution, the functions of the Vice President (including the Second Vice President where applicable) are to assist the President and exercise the powers and perform the functions conferred on him or her, as the case may be, by the Constitution or by any Act of Parliament, and by the President. Among some of the functions that the Constitution confers on the Vice President, is to chair Cabinet in the absence of the President, pursuant to Section 92(3) of the Constitution.

 

 

2.3.1. The Presidency and Constitutional Cornerstones

  • Representative democracy

 

Section 80(2) provides that “[t]he President shall be elected by a majority of the electorate through direct, universal and equal suffrage.” Further, Section 80(4) states that:

 

The First Vice-President shall be elected concurrently with the President and the name of a candidate for the First Vice President shall appear on the same ballot paper as the name of the Presidential candidate who nominated him.

 

By providing that the President and the Vice President be elected concurrently, by universal and equal (adult) suffrage, the Constitution of Malawi upholds the cornerstone of representative democracy as spelt out in the preamble and the fundamental principles. Their authority to govern flows from the consent of the governed. The requirement that the First Vice President should also be elected is very important, especially considering that in the event of a vacancy arising in the office of the President, under Section 83(4) of the Constitution, the First Vice President takes over office. Requiring that a Vice President be elected to office provides political legitimacy that is consistent with the democratic entitlement, in the event that a vacancy arises in the office of the President.

 

  • Openness

 

The Presidency, along with the entire Executive, seems to be the least transparent among the three principal organs of Government in so far as the exercise of their core functions and duties is concerned. However, there are numerous provisions in the Constitution that, if interpreted and followed in good faith, would provide quite a good footing for openness in the Presidency and the entire Executive.

 

Section 89(3) of the Constitution provides for the State-of-the-Nation Address by the President and it provides as follows:

 

The President shall each year, immediately before the consideration of the official budget, attend Parliament and shall –

 

(a)  address Parliament on the state of the nation and on the future policies of the Government at that time;

(b)  report on the policies of the previous year; and

(c)   respond to questions.

 

Under this provision, Members of Parliament may ask questions about important issues affecting the nation. One problem is that this Address so far has remained highly structured and seemingly designed to minimize the questions to which the President responds.

 

In addition to the State-of-the-Nation Address, Section 89(4) of the Constitution provides that:

 

The President shall be called to Parliament to answer questions at such times as may be prescribed by the Standing Orders of Parliament or on a motion of the National Assembly.

 

This means that whenever an issue requiring the President to specifically address Parliament arises, the President may be summoned through two Parliamentary procedures. First, through the procedure laid down in the Standing Orders of Parliament. It is unclear whether these Standing Orders presently exist. The Second is through a Member of Parliament moving a motion and having it carried (by simple majority). The President is then under an obligation to come to Parliament and answer questions.

 

These are provisions that, if scrupulously observed, would not only ensure openness (or transparency) by the President, but also accountability to Parliament.

 

  • Accountability

 

Apart From being listed among the three foundational cornerstones of the Constitution in the preamble, accountability has been specifically mentioned in Section 13(o) of the Constitution among the list of directive principles of national policy (DPNP) in that section. Section 13(o) provides that the State shall progressively adopt and implement policies and legislation aimed at introducing measures which will guarantee accountability, transparency, personal integrity and financial probity and which by virtue of their effectiveness and transparency will strengthen confidence in public institutions.

 

The measures aimed at transparency mentioned above are closely connected with measures of accountability. However, accountability is a broader concept. It also implies that holders of public office must be held to account for their actions, omissions or inactions.

 

Sections 88(3)-88(5) contain measures aimed at ensuring individual business ethics, personal integrity, and financial probity by the President and members of Cabinet.

 

Section 88(3) requires the President and members of the Cabinet not to hold any other public office and not to perform remunerative work outside the duties of their office. It also enjoins them to fully disclose all of their assets, liabilities and business interests and those of their spouses, held by them or on their behalf as at that date. The section mandates that, unless Parliament determines otherwise, such disclosure should be made in a written document delivered to the Speaker of the National Assembly, who is in turn required to immediately deposit the document with such public office as may be specified in the Standing Orders of Parliament. Section 88(4) then requires that any business interests held by the President or members of the Cabinet should be held on their behalf in a beneficial trust which should be managed in such manner as to ensure conformity with Section 88. Sub-section 88(5) is a general provision that requires the President and members of the Cabinet not to use their respective offices for personal gain or place themselves in a situation where their material interests conflict with the duties of their offices.

 

Another issue related to the accountability cornerstone pertains to the amenability of the President to civil or criminal process in respect of breaches of the laws of the land. In this regard, it is perhaps pertinent to start by observing that in the normal course of things, the President is immune from such process. Section 91 of the Constitution provides that:

 

1.      No person holding the office of President or performing the functions of President may be sued in any civil proceedings but the office of President shall not be immune to orders of the courts concerning rights and duties under this Constitution.

2.     No person holding the office of President shall be charged with any criminal offence in any court during his [or her] term of office, except where he or she has been charged with an offence on impeachment.

3.     After a person has vacated the office of President, he or she shall not be personally liable for acts done in an official capacity during his or her term of office but shall not otherwise be immune.

 

A few things are immediately clear here.

 

·       Although the President is immune from civil suits in the courts, he or she is still subject to declaratory orders of the courts pertaining to rights and duties under the Constitution. Thus it would appear that Section 91(1) protects the President from civil liability, but his office is amenable to orders of the courts in respect of his or her conduct with regard to the exercise of his or her official functions.

 

·       Although Section 91(2) provides for the President’s immunity from criminal prosecution, there is a rider in that Sub-section that states that he or she may be amenable to the criminal process upon being charged (and impliedly convicted and removed) on impeachment. I discuss the issue of impeachment below.

 

·       Section 91(3) deals with the question of personal liability for acts done in an official capacity. This is to be distinguished from sections 91(1) &(2) above that deal with his or her amenability to the judicial process in instances where he or she would otherwise be personally liable for acts done or committed. Thus the section [91(3)] provides that “[a]fter a person has vacated the office of President, he or she shall not be personally liable for acts done in an official capacity during his or her term of office but shall not otherwise be immune.” This Section is important in relation to the accountability cornerstone. It essentially makes it clear that although a person holding the office of the President is immune from being sued or prosecuted whilst holding office, he or she remains personally liable for any personal breaches of the law and would be held accountable in respect thereof upon vacating office. It remains an open question whether the Limitation Act[33]applies in respect of the President’s personal liability during his or her term of service. I take the view that the effect of the Limitation Act is suspended as the Plaintiff would be under a legal disability to sue during this period.

 

Closely interrelated with the issue of immunity discussed above, is the question of removal from office through the process of impeachment. Removal of the President or First Vice-President from office by way of impeachment for serious breach of the Constitution or other laws of the land is another important lever within the country’s constitutional order to ensure accountability of office bearers.

 

Section 86(1) of the Constitution provides that “[t]he President or First Vice-President shall be removed from office where the President or First Vice-President, as the case may be, has been indicted and convicted by impeachment.” Subsection (2) provides that the procedure for removal upon impeachment is to be laid down in the Standing Orders of Parliament and that they must fully accord with the principles of natural justice. Section 86(2)(a) provides that indictment and conviction by impeachment shall only be on the grounds of serious violation of the Constitution or serious breach of the written laws of the Republic that either occurred or came to light during the term of office of the President or the First Vice President.

 

This process, it is submitted, if implemented faithfully, impartially, boldly and with dignity, ensures that a person holding the office of President or First Vice-President is to be held to account for serious breaches of the laws of the country without even waiting for the expiry of his or her term of office. It is a process that upholds the principle that no person is above the law which is one of the fundamental principles of the Constitution in section 12(iv); and is one of the foundational and fundamental tenets of the rule of law.

 

 

2.4. Cabinet

Cabinet is established under Section 92(1) of the Constitution. It consists of the President, the First Vice-President, the Second Vice-President and such Ministers and Deputy Ministers as may, from time to time, be appointed by the President.

 

The functions and responsibilities of the Cabinet are spelt out in Section 96(1) of the Constitution. Key provisions are subsections (a), (b) and(c) thereof. The duties of Cabinet as spelt out in these provisions are:

 

(a)  to advise the President;

(b)  to direct, co-ordinate and supervise the activities of Government departments, including parastatal bodies;

(c)   to initiate Bills for submission to the National Assembly and to explain those Bills;

 

In terms of the foundational cornerstones of openness, representative democracy and accountability, I have already stated above that the Executive, and particularly Cabinet, is probably the least open organ of Government in the exercise of its functions. This point is made amply clear in the case of Cabinet. Unlike judicial or legislative proceedings, Cabinet proceedings are not open to the public. It would appear that the presumption is that the public has no direct interest in accessing accounts of the proceedings of Cabinet except in instances where Cabinet itself so decides.

 

Under Section 96(1)(e) of the Constitution, members of Cabinet are enjoined to be available to Parliament for the purposes of answering any queries or participating in any debate pertaining to the content of the policies of the Government. It is arguable that this is one way of ensuring that Cabinet is open and also held to account. However, to all intents and purposes, it would appear that it is the Presidency that is required to account, rather than other members of Cabinet. In terms of the general accountability of members of Cabinet, Section 97 provides that “[a]ll Ministers shall be responsible to the President for the administration of their own departments.” Thus it would appear safe to state that Cabinet is accountable to the President.

 

Finally, just like the Presidency, as mentioned above, Sections 88(3)-88(5) of the   Constitution require both the President as well as all other members of the Cabinet to adhere to strict standards of ethics and business and financial probity in their personal lives and to ensure that their personal business interests are divorced from their public responsibilities.

 

As regards representative democracy; Cabinet collectively is not an elected body. However, apart from the 1st Vice President, it serves at the pleasure of the President who is in turn directly elected by the people.

 

 

2.5. The Legislature

Unlike Sections 7 and 9, which clearly state the responsibilities of the Executive and Judiciary, respectively, Section 8, which purports to deal with the responsibilities of the legislature, seems equivocal in its provisions. It states that “[t]he legislature when enacting laws shall reflect in its deliberations the interests of all the people of Malawi and shall further the values explicit or implicit in this Constitution.” The phrase “shall reflect in its deliberations the interests of all the people of Malawi” in this section is quite amorphous for at least two reasons: firstly, the Constitution provides for a system where the people through their constituencies directly elect members of Parliament to represent their interests. These interests may be very diverse and the Member of Parliament may find him or herself in the unfortunate position where he or she has to weigh the interests of his or her constituency against the perceived interest of the people of Malawi. Further, the Constitution has various provisions that emphasize the individual autonomy of members of Parliament in the discharge of their legislative functions. Section 62(2) for instance provides that “[e]ach constituency shall freely elect any person, subject to this Constitution and an Act of Parliament, to represent it as a member of the National Assembly in such manner as may be prescribed by this Constitution or an Act of Parliament.” In addition, Section 65(2) provides that “all members of all parties shall have the absolute right to exercise a free vote in any and all proceedings of the National Assembly, and a member shall not have his or her seat declared vacant solely on account of his or her voting in contradiction to the recommendations of a political party, represented in the National Assembly, of which he or she is a member.”

 

The only case before the courts that has attempted to address the issue of the right of the electorate to be represented in Parliament has left the law in a state of confusion and uncertainty. In the case of Gwanda Chakuamba v. Paul Ching’oma, [34] Justice Tambala in the High Court stated that:

 

That Section [Section 62(2)] simply provides that each constituency shall freely elect any person to represent it as a member of the National Assembly. My understanding of this provision is that it grants a right to the entire constituency to freely elect a person who shall represent it in Parliament. Again the right to be represented is given to the entire constituency and not to the individual member of the constituency. It is a right granted to a group of persons. Again the paramount right is the freedom to elect. The representation is of secondary importance.

 

The learned judge then underscored his emphasis that the representation is of “secondary importance” in a way that, in my submission, empties the whole idea of Parliamentary representation of all content. He said:

 

Section 33 of our Constitution grants to every person the right of freedom of conscience, belief and thought. If Mr. Ching’oma’s Member of Parliament feels that it is against his conscience or if he thinks or believes that it is wrong to attend the current sitting of Parliament, it would be a violation of the right granted by Section 33 to compel him to do so. To deny a person the right to choose what to do is a violation of a basic human right. To compel Mr. Ching’oma’s Member of Parliament to attend Parliament against his wish or consent would be a deprivation of his right to freedom of conscience, belief, thought or choice. To compel a person to do something against his will or consent is to treat him not as an honourable Member of Parliament, but as a slave or prisoner.

 

This case was wrongly decided. The judge, among other things, did not address the essence of the fundamental principles of the Constitution, one of which clearly states that ‘all legal and political authority of the State derives from the people of Malawi and shall be exercised in accordance with this Constitution solely to serve and protect their interests.’[35]It behoved the judge to look at parliamentary representation from within the prism of this fundamental principle.

 

This decision has neither been considered by the Malawi Supreme Court of Appeal, nor has it been departed from by any other court of co-ordinate jurisdiction. It therefore represents the current position of law in Malawi. As such, it is seriously doubtful whether the phrase in Section 8 that Parliament “shall reflect in its deliberations the interests of all the people of Malawi” has any legal or practical significance at all.

 

Secondly, the provision does not unequivocally say that Parliament shall be vested with exclusive legislative powers in the country, though arguably, that ambiguity is cured by the provisions of Section 48(1) and 66(1) of the Constitution. In the premises, however, it seems reasonable as suggested above,[36]to refer to section 66(1) of the Constitution as providing for the separate status, functions and duties of the legislature.

 

Malawi has a unicameral legislature. When the new Constitution was adopted in 1995, a bicameral legislature, consisting of a National Assembly and a Senate, was envisaged and provided for. However, the Constitution provided that the Senate would only take effect at a subsequent date. During that interim period, the Constitution provided that the National Assembly would operate as Parliament. In 2001, the National Assembly passed a constitutional amendment abolishing the Senate. Some have argued that the abolition of the Senate was unconstitutional. Section 45(8) of the Constitution is relied on as a primary basis for this argument. The Section provides that:

 

Under no circumstance shall it be possible to suspend this Constitution or any part thereof or dissolve any of its organs, save as is consistent with the provisions of this Constitution

 

Chigawa argues that the Senate, as a constituent part of Parliament, was an organ of the state established under the Constitution. He urges, therefore, that, in the absence of any clear provisions in the Constitution itself relating to its suspension or abolition, the National Assembly could not lawfully “dissolve” it in 2001.[37]

In respect to the foundational cornerstones of openness, democracy and accountability, the following observations are made:

 

·       Openness

 

Parliament is sufficiently open with regard to the discharge of its core function of enacting laws. Parliamentary proceedings are generally open to the public.

 

·       Representative democracy

 

Members of Parliament are directly elected by the electorate in regular elections held every five years. This is an important element of representative democracy. However, the system was significantly weakened in 1994, when Parliament passed a Constitutional amendment repealing section 64 of the Constitution that provided for the recall of non-performing Members of Parliament or those members that have lost the trust and confidence of the electorate. As already shown, section 12(iii) of the Constitution states that ‘the authority to exercise power of State is conditional upon the sustained trust of the people of Malawi’. Thus the decision to repeal section 64 of the Constitution clearly flew in the face of one of the fundamental principles upon which the Constitution was founded.

 

·       Accountability

 

There are some mechanisms in the Constitution designed to ensure accountability. One of them is Section 65(1) that provides that a Member of Parliament, who crosses the floor by switching political party allegiance after he or she gets elected into Parliament, loses his or her Parliamentary seat. Another important check on parliamentarians to ensure accountability is the fact that the Constitution provides for regular elections every five years. However, it is submitted that the decision to repeal the recall provision as described above, significantly weakened the Parliament’s adherence to the principle of accountability. Secondly, it is submitted that the High Court decision in Gwanda Chakuamba v. Paul Ching’oma that essentially held that a Parliamentarian is under no obligation to further the interests of his or her constituency if his or her conscience dictates otherwise, further weakened the requirement of accountability as it applies to members of Parliament under the Constitution.

 

 

2.6. The Judiciary

The founding provisions for the judiciary are spelt out in section IX of the Constitution. Section 103(2) of the Constitution accords the judiciary jurisdiction over all issues of a judicial nature, and exclusive authority to decide whether an issue is within its competence. This provision delimits judicial issues as being within the exclusive remit of the judiciary, hence underpinning the principle of separation of powers discussed above. The provision is also an affirmation of the independence of the judiciary. The independence of the judiciary is expressly provided for in section 103(1) that provides that ‘[a]ll courts and all persons presiding over those courts shall exercise their functions, powers and duties independent of the influence and direction of any other person or authority.’

 

The responsibility of the judiciary is spelt out in section 9 of the Constitution. That section provides that:

 

The judiciary shall have the responsibility of interpreting, protecting and enforcing this Constitution and all laws and in accordance with this Constitution in an independent and impartial manner with regard only to legally relevant facts and the prescriptions of law.

 

There are several observations that can quickly be made in respect of this section:

 

First, the responsibilities of the judiciary are principally threefold:[38]

 

  • to interpret the Constitution and all laws in Malawi;
  • to protect the Constitution and all laws in Malawi; and
  • to enforce the Constitution and all laws in Malawi.

 

Second, it is noteworthy that the section states that these responsibilities are to be exercised ‘in accordance with’ the Constitution. This provision is to be read together with section 4 that provides that the Constitution binds all organs of the State including the judiciary. Implicit in this provision is a recognition that is made explicit in section 10 of the Constitution, which is also part of the concept of the supremacy of the Constitution; that in the interpretation of all laws, the Constitution is the supreme arbiter and the ultimate source of authority.

 

Third, in stating that these responsibilities are to be exercised in ‘an independent and impartial manner’, the provision stresses the concepts of the independence and impartiality of the judiciary.

 

Fourth, in stating that in exercising its responsibilities the judiciary shall have ‘regard only to legally relevant facts and the prescriptions of law’, the provision emphasises the principle of legality which lies at the heart of the concept of the rule of law. The principle of legality is central to the conception of Malawi’s constitutional order. It requires that all organs of Government in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by the law.[39] The provision also emphasises the importance of rules of evidence particularly with regard to the relevance of evidence. In the usual course of things, courts can only competently adjudicate where the prescriptions of law are applied to legally relevant facts. In the case of National Democratic Alliance v. Electoral Commission & Others (the NDA Case),[40] the High Court emphasised the need for litigants to place equal weight to adducing relevant evidence and exposing the applicable law in order to firmly ground a case for judicial determination. The Court said:

 

When a Court is dealing with a case it is as much interested in the facts giving rise to it as it is interested in the law applicable. To merely make pronouncements on the law without an adequate factual base may sit well in a symposium situation or in an academic one, but certainly not in a judgment.

 

Thus Courts only have limited scope to provide advisory opinions that are not directly triggered by a specific set of facts, and as I shall argue shortly, it is debatable whether the opinions provided are purely expository on the law or they still have some factual basis. Section 89(1)(h) of the Constitution provides that the President has the power and duty to refer disputes of a constitutional nature to the High Court. In the case of Attorney General v. Malewezi,[41]the High Court faulted the Attorney General for bringing a question before the Court as to the legal consequences of the decision of Mr. Malewezi, then Vice president of the country, to go on a long holiday that would last till the end of his term of office. The Court opined that the Attorney General had erred in bringing the matter before the Court as only the President could properly bring such a matter before the Court for opinion in terms of Section 89(1)(h) of the Constitution. The philosophy behind this provision seems to be that since the President as head of State has a duty to preserve and defend the Constitution, as clearly spelt out in his/her oath of office set out in Section 81 of the Constitution, one of the ways in which he/she can classically discharge that duty is to refer disputes of a Constitutional nature to the High Court for determination.[42] In the case of In the Matter of Section 65 of the Constitution: Presidential Referral (Jurisdiction phase),[43] the Supreme Court of Appeal stated that ‘although what the President refers is a dispute of a Constitutional nature, he is not thereby bringing before Court a dispute between himself and his subjects…He is simply performing a Constitutional duty under section 89 of the Constitution.’ This provision has subsequently been invoked by the President referring various matters to court for interpretation. The question remains however as to whether the decision of the Court in these matters should not always be based on relevant facts. The provision requires that what is to be referred to the Court is a ‘dispute’. Evidently, one can only show that a dispute exists by proving certain facts. It is submitted that the President cannot just refer a dispute to the High Court in vacuo. Thus the dual requirement for the judiciary to settle matters with regard to the relevant facts and prescriptions of law still seems to apply here.

 

 

Malawi’s court system is adversarial, in tandem with most common law based legal systems of the world; and in contrast with the inquisitorial system adopted in most civil law jurisdictions. The High Court had occasion to consider and extensively discuss the practical implications of this adversarial system in the NDA Case where the Court said:

 

We believe that all parties to this case do duly appreciate the fact that Malawi follows the common law system of justice. This system, at heart, is adversarial and not inquisitorial. The burden, in this system, lies on the party that asserts, that seeks to be believed by the Court, to furnish to the Court ample and credible evidence for it in turn to be satisfied about that partys case. It is no business of the Court in the system that applies in this country to go out and hunt for evidence on behalf of the parties. Courts are enjoined to base their decisions solely on the evidence procedurally presented before them in the cases filed before them and on nothing else.

 

 

2.6.1. Court Structure and Hierarchy

In his manual, on ‘The Malawi Legal System’,[44] Machika identified two court systems within the judiciary as it existed in 1983. These were what he termed the ‘High Court System’,[45] comprising the Supreme Court of Appeal, the High Court and Magistrate courts; and the ‘Traditional Courts System’, comprising the National Traditional Court, Regional Traditional Courts and Local Traditional Courts.[46] Under the new Constitutional framework, this distinction no longer exists. Firstly, it is observed that under the old, pre-1994 system, the Supreme Court of Appeal comprised the Chief Justice and other judges of the High Court appointed on a case by case basis to sit as a bench of Justices of Appeal on the Supreme Court.[47]Thus it would seem to make sense to refer to the Supreme Court of Appeal as being part of the High Court System. Under the 1994 Constitution, the Supreme Court of Appeal and the High Court are established separately under sections 104(1) and 108(1) of the Constitution respectively; and both courts have permanent Justices of Appeal and Judges respectively.[48] The Chief Justice, except in unique cases specifically designated by statute, is part of and sits in the Supreme Court. Hence, it is submitted that on this ground alone, the new system cannot admit of the High Court system as including the Supreme Court. It would clearly be anomalous to identify and classify the Supreme Court of Appeal with the High Court as the frame of reference.

 

Secondly, the Traditional Court System under the 1994 Constitution is clearly subordinate to the Supreme Court and the High Court.[49] The framers of the Constitution consciously ensured that no parallel court system to that of the High Court and the Supreme Court should exist as was the case under the 1966 Constitution. Thus Section 103(3) provides that ‘[t]here shall be no courts established of superior or concurrent jurisdiction with the Supreme Court of Appeal or High Court.’

 

In the result, it is submitted that there is only one civilian court system in Malawi.[50]The following comprise Malawi’s court system:

 

·       The Supreme Court of Appeal

 

As mentioned above, the Supreme Court of Appeal is established under section 104 of the Constitution. That section provides that:

 

1.      There shall be a Supreme Court of Appeal for Malawi, which shall be a superior court of record and shall have such jurisdiction and powers as may be conferred on it by this Constitution or by any other law.

2.     The Supreme Court of Appeal shall be the highest appellate court and shall have jurisdiction to hear appeals from the High Court and such other courts and tribunals as an Act of Parliament may prescribe.

 

This provision shows that the Supreme Court of Appeal is the highest court in Malawi and that its jurisdiction is exclusively appellate. It has no original jurisdiction.

 

·       The High Court

 

The High Court is established under section 108 of the Constitution. Section 108(1) provides that ‘There shall be a High Court for the Republic which shall have unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law.’

 

It is pertinent to note that the High Court has unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law. It is curious that this apparently clear position has been the subject of contest in the courts. In 1996, in the case of Mungomo v. Mungomo & Others;[51] the petitioner in a divorce case argued that although ordinarily matters relating to customary law marriages in Malawi are heard by magistrate courts, the High Court was competent to hear the petition on the basis of section 108 of the Constitution. Unyolo J (as he was then called), agreed with this argument as a matter of strict legalistic interpretation, but departed from that position on pragmatic grounds, stating that:

 

It is to be observed, however, that although this is the position, the High Court has to look at the matter from a practical point of view. In my judgment, it would be both inappropriate and wrong for the High Court to proceed and assume jurisdiction over proceedings which fall within the jurisdiction of a subordinate court simply because the High Court has, as we have just seen, unlimited original jurisdiction. Such an approach would create confusion, as parties would be left to their whims to bring proceedings willy-nilly in the High Court or in a subordinate court, as they pleased. This would also open the floodgates for trivial cases to come before the High Court. In short, the High Court should recognise the subordinate courts and decline jurisdiction in matters over which the subordinate courts have jurisdiction, unless exceptional circumstances exist which necessitate or require its intervention.

 

In the subsequent case of Air Malawi v. Ombudsman,[52] Twea J seemed to adopt a rather vague position on the point. He stated thus:

 

For purposes of analogy let me refer to section 110(2) of the Constitution. This section creates the Industrial Relations Court which ‘shall have original jurisdiction’ over labour disputes. Would one say this ousts the jurisdiction of the High Court, which has unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law [under] section 108 of the Constitution? Obviously the answer is no. Therefore does the High Court have jurisdiction over labour disputes? The answer is yes. One would therefore find that the Industrial Relations Court and the High Court have concurrent jurisdiction.

 

By stressing the concurrence of jurisdiction, this passage seems to suggest that the High Court might as well hear labour disputes without necessarily acting in deference to the jurisdiction of the Industrial Relations Court. To that extent, Twea J seems to depart a small distance from the approach taken by Unyolo J in Mungomo v. Mungomo, i.e emphasising the need for the High Court to defer to the original jurisdiction of subordinate courts.

 

The Supreme Court of Appeal then seems to have thoroughly confused matters in the case of Attorney General v. Msiska.[53] With reference to the unlimited jurisdiction of the High Court, it said:

 

The notion of the High Court having unlimited powers needs to be reconsidered in the light of the complexities of modern day life and the existence in the Constitution of provisions which are apparently inconsistent with that notion.  The view that the High Court must have power to deal with any case is both untenable and undesirable in the changed circumstances of the present times.

 

Whilst it is reckoned that a Constitution is a living document that must remain flexible to changing times and circumstances in society, it is submitted that the approach adopted by the Supreme Court in the Msiska case above, of completely departing from clear provisions of the Constitution purportedly owing to what the Court considers to be the ‘complexities of modern day life’ and the ‘changed circumstances of the present times’ sets a dangerous precedent. The Court did not even make a case to suggest that a construction that suggests the unlimited original jurisdiction of the High Court might lead to manifestly absurd results. Perhaps if such a case had been made, there might have been a conceivable basis to ground this radical departure from clear words of the Constitution. It is urged that the cautious and practical approach adopted by Unyolo J in the Mungomo case represents the best way of approaching section 108(1) in this regard.

 

Originally under Section 9 of the Courts Act, all proceedings in the High Court were heard and disposed of by or before a single judge. However, in 2003, section 9 of the Courts Act was amended, whereupon the original section 9 became section 9(1) and new sections 9(2) and 9(3) were introduced, providing that:

 

9(2) Every proceeding in the High Court and all business arising there out, if it expressly and substantively relates to, or concerns the interpretation or application of the provisions of the Constitution, shall be heard and disposed of by or before not less than three judges.

9(3) A certification by the Chief Justice that a proceeding is one which comes within the ambit of subsection (2) shall be conclusive evidence of that fact.

Although clearly this provision does not create a new Court; nor indeed does it create even a new division of the High Court; it has become common for the bar and the bench alike to erroneously refer to a panel of judges constituted pursuant to sections 9(2) and 9(3) of the Courts Act as a ‘Constitutional Court’.[54] Section 9 is simply a provision that deals with the composition of the High Court; and it should be viewed as such. The only nuance is that it requires more judges (not less than three) to hear and dispose of matters in cases where questions or issues expressly and substantively relating to, or concerning the interpretation or application of the provisions of the Constitution are raised.

 

It is imperative that law students take due notice of this common anomaly. It should be emphasised that in Malawi’s constitutional law framework; there is no Constitutional Court.

 

·       Industrial Relations Court

 

The Industrial Relations Court (IRC) is established under section 110(2) of the Constitution. The section provides that:

 

There shall be an Industrial Relations Court, subordinate to the High Court, which shall have original jurisdiction over labour disputes and such other issues relating to employment and shall have such composition and procedure as may be specified in an Act of Parliament.

 

In terms of jurisdiction, this provision shows:

 

·       that the IRC is a court subordinate to the High Court;

·       that it has jurisdiction to hear and determine labour disputes; and

·       that it has jurisdiction to hear other employment issues. It is unclear in this regard, as to why the provision used the words ‘such other issues’. Perhaps they were intended to convey the sense that the court would have jurisdiction over such employment issues if a dispute arises; but then that is probably almost as good as obvious.

 

The Act that specifies the composition and procedure of the IRC is the Labour Relations Act of 1996.[55]Section 66(1) of the Act defines the composition of the Court as comprising the Chairperson, the Deputy Chairperson, five persons nominated by the most representative organisation of employees (the employees panel) and five other members nominated by the representative organisation of employers (the employers panel).

 

The Coram of the Court is formed by the presence of either the Chairperson or Deputy Chairperson, and one member each from the employees and employers’ panels respectively.[56]

 

The IRC has some unconventional procedural and evidentiary provisions. It emphasises economy, informality and dispatch of cases in its procedures at the expense of technicality.[57]Section 71(2) provides that the IRC is not bound by the rules of evidence in civil proceedings. Section 73 restricts the right to legal representation. It essentially provides that a party to proceedings in the IRC may only be granted leave to be represented by a legal practitioner if the other party is also represented.

 

A number of questions still linger in respect of this provision. For instance, what happens if a legal practitioner for one of the parties withdraws mid-stream through the proceedings. Does the Court then have to order that the legal practitioner for the other party withdraws? Or is the position that this is only a requirement at the point of granting leave, and that once leave is granted, then legal representation will persist irrespective of whether both parties continue to have legal practitioners?

 

·       Magistrate Courts

 

Magistrate courts are established under section 110(1) of the Constitution. That section provides that:

 

There shall be such courts, subordinate to the High Court, as may be prescribed by an Act of Parliament which shall be presided over by professional magistrates and lay magistrates.

 

There are four categories of magistrates in Malawi. These are prescribed under section 33 of the Courts Act as follows, in order of seniority:

 

·       Courts of Resident Magistrates.

 

According to section 34(3) of the Court Act, these are higher than all other magisterial categories and they have oversight responsibilities over the lower levels.[58] They are presided over by professionals who are qualified to be admitted as legal practitioners under the Legal Education and Legal Practitioners Act.[59]

 

·       Courts of magistrates of the First Grade

·       Courts of Magistrates of the Second Grade; and

·       Courts of Magistrates of the Third Grade.

 

According to section 35 of the Courts Act, all magistrate Courts have territorial jurisdiction throughout Malawi. Hence they can hear any criminal or civil case regardless of where the crime was committed. In practice, however, they ordinarily defer to the magistrate court in the area where the crime was committed.

 

In terms of civil jurisdiction, section 39(1) of the Courts Act provides jurisdictional limitations in terms of the civil cases that the various categories of magistrates can hear and dispose of based on the monetary amounts involved.[60] Further, Section 39(2) provides an ouster of jurisdiction for magistrate and other subordinate courts in various matters, including matters relating to titles or ownership of land,[61]issues of injunctions, and the granting of declaratory orders relating to the rights and duties of the parties.

 

As for Criminal jurisdiction, magistrates can try any offence prescribed under any written law unless otherwise provided for in another law. For instance, section 13(1) of the Criminal Procedure and Evidence Code (CP&EC)[62] expressly provides that magistrate Courts have no jurisdiction to hear cases involving treason, murder or manslaughter.

 

Further, in terms of section 14 of the CP&EC, no magistrate may pass a sentence of death or life imprisonment, and the maximum term of imprisonment that can be imposed by a Resident Magistrate or a Magistrate of the First Grade is fourteen years.

Magistrate Courts are courts of first instance and they have no appellate jurisdiction.

 

·       Traditional Courts

 

Traditional Courts in Malawi are recognised under the 1994 Constitution. Section 110(3) of the Constitution provides that ‘Parliament may make provision for traditional or local courts presided over by lay persons or chiefs’, and a proviso to the provision states that the jurisdiction of traditional courts is ‘limited exclusively to civil cases at customary law and such minor common law and statutory civil cases as prescribed by an Act of Parliament.’ Currently, the Law Commission is reviewing the Traditional Courts Act in order to bring it in conformity with the provisions of the Constitution.

 

 

The following is a pictorial representation of Malawi’s court system:

 

 

 

 

2.6.2. The Judiciary and Constitutional Cornerstones

·       Openness

 

The judicial process is a very open process. Court proceedings are generally open to the public except in cases held in camera. These cases include matters that deal with children where the Children and Young Persons Act requires that the privacy of the child be respected and preserved, and other instances where the Court takes the view that it is in the interests of justice that proceedings be held in camera. Further, all court rulings or judgments are public documents accessible to the public at large. It is therefore submitted that the judiciary meets the openness test within the framework of the Constitution, in so far as the discharge of its judicial mandate is concerned.

 

·       Representative Democracy

 

Unlike the other two principal organs of Government, the judiciary is not an elected body. Judicial officers are appointed in their personal capacity based on their qualifications, career profile, and experience. They are not appointed to represent the interests of any group of people. Others have argued that this scenario presents what is called a counter- majoritarian dilemma, especially bearing in mind that the Courts have powers to invalidate legislation passed by duly elected representatives of the people, where the same is deemed to be inconsistent with the provisions of the Constitution.[63] However, an unelected court is ineluctable in a democracy, one of whose fundamental tenets is the principle of equality before the law. Thus, although the judiciary is an unelected body and hence does not directly meet the requirement of representative democracy in terms deriving the source of its authority, it is essential in order to maintain constitutional democracy. Thus, in discharging its duties, the judiciary does not necessarily have to give effect to popular public opinion and, in some cases, it must depart from it. In the case of The State v. Makwanyane & Mchunu,[64] Chaskalson P (as he was then called) pointed out the role of the judiciary and public opinion in a constitutional democracy vis-à-vis the protection of human rights. He said:

 

Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favor. If public opinion were to be decisive there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised, but this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the 1993 Constitution… The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalized people of our society.

 

It is submitted that this passage provides a forceful countervailing argument against any fears raised by the counter-majoritarian argument.

 

·       Accountability

 

Although Section 103 of the Constitution guarantees the judiciary independence in the discharge of its functions and duties, the institution is still amenable to checks and balances within the framework of separation of powers. For instance, Section 116 establishes the Judicial Service Commission, one of whose functions is the regulation of judicial officers in their work. This includes both personal conduct as well as official performance. Under Sections 118 (b) and (c), the Judicial Service Commission has the power to exercise such disciplinary powers in relation to persons in judicial office and to recommend, subject to section 119, the removal of a person from judicial office. Section 119(2) provides that a person holding the office of Judge may be removed from office only for incompetence in the performance of the duties of his office or for misbehavior. The procedure for removal of a Judge from office is prescribed in Section 119 subsections (3)-(5). These provisions are in the following terms:

 

3. The President may by an instrument under the Public Seal and in consultation with the Judicial Service Commission remove from office any Judge where a motion praying for his removal on the ground of incompetence in the performance of the duties of his office or misbehavior has been;

 

(a)   debated in the National Assembly;

(b)   passed by a majority of the votes of all the members of the Assembly; and

(c)   submitted to the President as a petition for the removal of the judge concerned:

 

Provided that the procedure for the removal of a judge shall be in

accordance with the principles of natural justice.

 

4. Where notice of intention to introduce before the National Assembly a motion praying for the removal of a Judge from his office has been lodged in the office of the Speaker, the President may, where after consultation with the Judicial Service Commission he is satisfied that it is in the public interest so to do, suspend the Judge from performing the duties of his office.

 

5. The suspension of a Judge under subsection (4) may at any time be revoked by the President, after consultation with the Judicial Service Commission, and shall in any case cease to have effect where the motion is withdrawn before being debated in the National Assembly or, upon being debated, is not passed by a majority thereof.

 

What these provisions demonstrate is that judicial officers are subject to discipline and this is certainly a way of ensuring that they remain accountable in the way they discharge their duties. Thus it is submitted that the provisions on the judiciary under the Constitution are consistent with the foundational cornerstone of accountability.

 

 

3. Sources of Law

Malawi’s legal system, in so far as the applicable law is concerned, is pluralist in character. This paper discusses the following regimes: constitutional law, legislation, common law, customary law, religious law, and customary international law.

 

 

3.1. The Constitution

The constitutional system is neither premised on the country’s historic British legal tradition, nor is it borrowed from any specific jurisdiction. It is obviously informed by developments in other jurisdictions, but, in terms of section 11(1) of the Constitution, the document is unique in character. This is bolstered by the fact that it admits of the application of public international law and comparable foreign case law, without any geographical or jurisdictional delimitation in its interpretation. Although there have been numerous pronouncements from the High Court as well as the Supreme Court of Appeal suggestive of a conservative approach, the supreme Court of Appeal appears to have finally settled the matter in line with the approach that I adopt here. In the case of Attorney General v. MCP & Others,[65] the Supreme Court, overturning a decision of the High Court, held among other things, that:

 

‘It was… totally wrong in law for the trial Judge to state as he did that the Constitution was "perceived as a hermaphrodite of the American and British systems", and construe the Constitution accordingly… Whatever its constitutional models, the proper approach to the construction of the unique character of the Constitution of Malawi is set out exhaustively in s.1 1 (2)’

 

3.2. Legislation

Simply put, legislation may be defined as the rules of law made by or under the authority of the legislature. Section 48(1) of the Constitution vests all legislative powers of the Republic in Parliament. Section 58 provides that Parliament may delegate to the Executive or the Judiciary the power to make subsidiary legislation, provided that such legislation does not substantially and significantly affect the fundamental rights and freedoms recognised by the Constitution. There are various categories of legislation. These include (1) Penal legislation that regulates the criminal law regime;[66](2)Regulatory legislation that essentially regulates the manner in which some public affairs (sometimes even private affairs) or institutions are run;[67](3)Financial legislation that regulates financial matters in the country;[68] (4)Fiscal legislation that regulates fiscal matters;[69] and (5)Social legislation that deals with the day to day running of the social system. [70]

 

In his manual, ‘The Malawi Legal System: An Introduction’, Machika describes a third type of legislation: Autonomic legislation. He states that this type of legislation ‘differs from subsidiary legislation in that here an autonomous body has independent power to legislate for its own members and in some cases, for members of the general public.’[71]

He states that ‘though this power is often conferred by Parliament, this is not always so.’[72]

 

However, in light of Section 48(1) of the Constitution, which vests legislative power exclusively in Parliament, it is submitted that autonomic legislation has no place in Malawi’s legal system.

 

 

3.3. Common Law

Thirdly, Malawi applies the common law (a body of case law based on principles that have evolved over time). Section 200 of the Constitution provides for the continued application of the common law in force at the time the Constitution was adopted in so far as they are consistent with the Constitution. The evolving character of the common law has been enshrined in the constitution under Section 10(2) of the Constitution, which enjoins courts to have due regard for the principles and provisions of the Constitution when applying and developing the common and customary law.

 

 

3.4. Customary Law

Fourthly, courts in Malawi apply customary law. As in the case of common law, Section 200 of the Constitution provides for the continued application of the customary law in force at the time the Constitution was adopted. Further, the Constitution in Section 10(2) enjoins courts to have due regard to the principles and provisions of the Constitution when applying and developing the same. However, the idea of courts developing customary law lends itself to some conceptual problems. Ideally, customary law is the traditional law applied by traditional leaders in the determination of essentially traditional matters in their areas of traditional territorial jurisdiction. Traditionally, customary law has always evolved as societies transform. It is unclear whether formal courts should be responsible for developing customary law.

 

 

3.5. Religious Law

Religious law is also applied in Malawi in some cases, e.g., cases of marriage and property inheritance. Under the Asiatics (Marriage, Divorce and Succession) Act,[73] marriages are celebrated under Asian customs and traditions, as well as under religious practices and norms of the parties involved. The Act, as the name suggests, applies to people of Asian origin, whether resident in Malawi or not. Thus for instance, people of Asian origin are, under this Act, allowed to celebrate their marriages according to Hindu or Islamic religious norms (or laws).

 

 

3.6. International Law

Malawi’s constitutional framework shows that the country remains dualist in its approach to the application of international law. Section 211 of the Constitution provides that:

 

1.Any international agreement entered into after the commencement of this constitution shall form part of the law of the Republic if so provided for by or under an Act of Parliament.

2.Binding international agreements entered into before the commencement of this Constitution shall continue to bind the Republic unless otherwise provided by an Act of Parliament .

3.Customary international law, unless inconsistent with this Constitution or an Act of Parliament, shall form part of the law of the Republic.

 

This section reveals a number of things. Firstly, subsection (1) clearly demonstrates that for international agreements entered into after the commencement of the constitution, they need a formal act of incorporation through an Act of Parliament to become part of Malawi’s domestic law.[74] Subsection (2), however, is fraught with ambiguity. In stating that binding international agreements entered into before the commencement of the Constitution shall continue to be binding on the Republic, it does not seem that the provision introduces anything new. If the idea behind the term “binding” was that a treaty becomes binding on a State upon a formal act of incorporation into domestic law, then the framers of the Constitution must have misunderstood treaty law. An international agreement becomes binding upon the formal act of ratification and not incorporation. The last part of that subsection seems to suggest that the Malawi Parliament can pass an Act domestically that would relieve the state of its international obligations under a treaty. Again that is not the case. A state can only withdraw or be relieved of its international treaty obligations through a procedure spelt out under that particular treaty or general treaty law principles. Thus, the Constitution leaves the question of the applicability of international agreements entered into prior to 18 May 1994 open to debate. It is submitted, however, that faced with a question of interpretation, a court in Malawi is likely to invoke long established practice that would require that for the agreement to be enforceable as domestic law, it must have been incorporated through an Act of Parliament.

 

Section 211(3), however, unequivocally states that customary international law forms part of Malawi law unless otherwise inconsistent with the Constitution.

 

In conclusion, treaty law can only have the force of domestic law as legislation. However, customary international law forms a different legal regime altogether since it forms part of domestic law but it falls under neither of the categories of applicable law discussed above.

 

 

3.7. Doctrines of Equity

The current position on the applicability of doctrines of equity in Malawi is rather confused. The Constitution is silent on the applicability of doctrines of equity. In order to put this issue in clearer perspective, we need to look first at what the 1966 Constitution, which immediately preceded the current Constitution, said about the matter. Section 15 of the 1966 Republic of Malawi (Constitution) Act provided that:

 

Until Parliament otherwise provides, the civil and criminal jurisdiction of the Supreme Court of Appeal, the High Court, and subordinate courts (including Traditional Courts) shall, subject to this Act and any law in force in Malawi, be exercised in conformity with the existing laws and the substance of the common law and doctrines of equity.”[75]

 

Thus it is clear that doctrines of equity were constitutionally recognised as having application in Malawi. However, under the 1994 Constitution, which replaced the 1966 Constitution and repealed the Republic of Malawi (Constitution) Act of 1966, doctrines of equity have not been mentioned. Section 200 of the Constitution provides that:

 

Except in so far as they are inconsistent with this Constitution, all Acts of Parliament, common law and customary law in force on the appointed day shall continue to have force of law, as if they had been made in accordance with and in pursuance of this Constitution:

 

Provided that any laws currently in force may be amended or repealed by an Act of Parliament or be declared unconstitutional by a competent court.[76]

 

The provision is completely silent on doctrines of equity.[77] As will be shown below, Section 199 of the Constitution provides, among other things, that “there shall be no legal or political authority save as is provided by or under this Constitution.” One would therefore question the constitutional basis or authority for the application of doctrines of equity in the absence of a provision in respect thereof.

 

In conclusion however, it would appear that this might have been the result of inadvertent omission by the framers of the Constitution. Yet it is rather strange that this provision was not even the subject of debate during the Constitutional Review proceedings from 2004-2008.

 

 

3.8. Conventions

The place of constitutional conventions in Malawi’s legal system appears very tenuous. The definition of a constitutional convention within Malawi’s constitutional framework was recently considered by the High Court in the case of The State v. The President of the Republic of Malawi, Ex-parte Bakili Muluzi & Another,[78] where Potani J adopted with approval Hilaire Barnett’s definition of a convention:

 

A conventional rule may be said to exist when a traditional practice has been consciously adopted and recognised by those who operate the Constitution as the correct manner in which to act in a given circumstance. A practice will be seen to have become a convention at the point at which failure to act in accordance with it gives rise to legitimate criticism.

 

Sir Ivor Jennings once suggested that three questions must be asked in order to determine whether a convention exists. First, are there any precedents for the convention? ‘Mere practice’, he tells us, is not enough. The fact that an authority has always behaved in a certain way is no warrant for saying that it ought to behave in that way. What more, then, is required? According to Jennings, that turns on the normativity of the practice:

… If the authority itself and those connected with it believe that they ought to do so (behave in certain way), then a convention does exist …. Practice alone is not enough. It must be nominative.

 

Finally, Jennings argues that neither practice nor precedent is sufficient. In addition, there must be a reason for the rule … the creation of a convention must be due to the reason of the thing because it accords with prevailing political philosophy.[79]

 

The discussion then moves to the question of enforcement, where Potani, J adopted with approval Munro’s proposition that:

 

The validity of conventions cannot be the subject of proceedings in a court of law. Reparation for breach of such rules will not be affected by any legal sanction. There are no cases which contradict these propositions. In fact, the idea of a court enforcing a mere convention is so strange that the question hardly arises.

 

Potani, J then, stated that:

 

The consequence of breach of a convention, it has been said, would probably be severe public criticism and loss of popularity. In other words, as Barnett puts it in his book referred to earlier, the consequence of violating a conventional rule is political rather than legal. However, it is recognised by the various commentators that in cases where breach of a convention also leads to breach of law the court would have the jurisdiction to enforce breach of the convention. In the case at hand, as earlier found by the court, in so far as the law is concerned the respondent fulfilled the requirement for consultation in making the disputed appointments.

 

This is the only case where the issue of the enforceability of a Convention was expressly dealt with in Malawi. It should be noted that although Barnett’s analysis was in the context of a constitutional convention, Potani, J equally applied it in the context of ordinary statute.[80]From the ratio decidendi of this case, what effectively emerges is that in Malawi, constitutional conventions are political imperatives rather than legal requirements and are thus legally unenforceable.

 

There is perhaps room though for arguing that Potani, J was probably too precipitous in uncritically adopting wholesale Barnett’s analysis. For instance, in Barnett’s extensive quotation above, there is a part that states that ‘[a] practice will be seen to have become a convention at the point at which failure to act in accordance with it gives rise to legitimate criticism.’ One question that might arise is whether it is not a logical corollary to this proposition that a convention gives rise to a legitimate expectation. If that is accepted, section 43 of the Constitution provides that where a legitimate expectation in administrative practice is implicated, the right to administrative justice is infringed. Thus, one might argue that there is a place for enforcing a convention since the right guaranteed under section 43 is enforceable under section 46 of the Constitution.

 

 

4. Hierarchy of Laws

In order to come up with a hierarchical scheme of applicable law in Malawi, we need to look first at the Constitution. However, depending on the context, it is also necessary in some cases to look at other legal sources outside the Constitution. The following hierarchy of laws in Malawi seems to emerge.

 

 

4.1. The Constitution

The Constitution is Malawi’s supreme law. The primary provision that sets apart the supreme status of the Constitution is Section 199. That Section provides that [t]his Constitution shall have the status as supreme law and there shall be no legal or political authority save as is provided by or under this Constitution.”

 

Other provisions that concretise the concept of constitutional supremacy include:

(a)           Section 5 , that provides that [a]ny act of Government or any law that is inconsistent with the provisions of this Constitution shall, to the extent of such inconsistency, be invalid.”

(b)  Section 10(1) of the Constitution provides that “[i]n the interpretation of all laws and in the resolution of political disputes the provisions of this Constitution shall be regarded as the supreme arbiter and ultimate source of authority.”

(c)   Section 11(3) of the Constitution that provides that “[w]here a court of law declares an act of executive or a law to be invalid, that court may apply such interpretation of that act or law as is consistent with this Constitution.” This provision seems to have an inherent remedial dimension, i.e, that instead of just declaring an act of the Executive or a law to be invalid and leaving it there so that the Executive or the Legislature fixes it, as the case may be, the Court may alter the effect of the act or law by interpreting the same in a manner that complies with the Constitution.

 

 

4.2. Legislation

According to the Constitution, apart from the Constitution itself, Acts of Parliament are supreme over other forms of law. It is submitted that by extension, subsidiary legislation is supreme over other forms of law since it is passed to ensure the better carrying out or implementation of an Act of Parliament. The Supremacy of Acts of Parliament over other forms of law as discussed here, is spelt out in Section 48(2) of the Constitution that provides that “[a]n Act of Parliament shall have primacy over other forms of law, but shall be subject to the Constitution.”

 

4.3. International Law

The Constitution is not explicit as to the hierarchical position of international law vis-à-vis other regimes of law discussed above. However, it is an established general rule of law recognised by states that national law must be interpreted in such a way as to conform with international law. Whilst on this point, Hansen has questioned the very essence of the concepts of monism and dualism. He actually seems to take the position that international law should be pre-eminent over all national law. He states that:

 

From an international point of view, these questions [of monism and dualism] are less important, because according to international law, the international obligation will always prevail [at] the expense of the domestic legislation. If the contracting state ignores its international obligation, the consequences will be a violation of an international obligation.[81]

 

This position has been affirmed by the African Commission on Human and Peoples Rights in the case of Media Rights Agenda and Constitutional Rights Project v. Nigeria, where it held that:

 

To allow national law to have precedence over the international law of the Charter [African Charter on Human and Peoples Rights] would defeat the purpose of the rights and freedoms enshrined in the Charter. International human rights standards must always prevail over contradictory national law.[82]

 

However, for practical purposes, the better view seems to be that the concept of dualism still holds, though perhaps in a somewhat attenuated form in light of various Constitutional provisions that provide direct room for the consideration and application of international law.

 

In the recent adoption case of In Re DB (An Infant),[83] Justice Nyirenda in the High Court had occasion to consider issues relating to the interface between the application of domestic law and international law. He said:

 

unless the statute, by its words and spirit compels our Courts to ignore international laws that [are] binding on us, the practice of our Courts is to avoid a clash and the way is to construe the domestic statute in such a way as to avoid breaching the obligation, See Mwakawanga v Rep (1968 – 1970) 5 MLR 14 and Gondwe v Attorney General [1996] MLR 492.

 

He went to state that:

 

Thus …I hope I have meaningfully established two points. The first point is that it is our singular Constitutional obligation to uphold binding international law. Secondly, and by implication, it says to me if a law is in conflict with our international obligation[s] it runs the risk and the likelihood of being in conflict with our Constitution and this Court is called upon to apply such interpretation of the act or law as is consistent with the Constitution, and by extension, international law, because applicable international law and the Constitution are supposed to work in tandem.

 

In light of the foregoing position of international law as expressed by both local courts as well as supra-national tribunals, it is submitted that applicable international law trumps all other forms of law, with the exception of the Constitution and legislation.

 

 

5. Legal Education

Legal training in Malawi is regulated by the Legal Education and Legal Practitioners Act. The Act established the Malawi Council of Legal Education. The functions of the Council are:

 

·       To make regulations for the syllabus and curriculum of legal education and attendance at Law Schools;

·       To establish, conduct and regulate courses of legal education;

·       To conduct, regulate and control the holding of examinations in law;

·       To advise and recommend to the Minister on matters relating to legal education and the necessary qualifications for admission and enrolment of legal practitioners;

·       To perform such other functions and deal with such other matters relating to legal education as the Minister may direct in writing.

 

It is not entirely clear what the relationship between the Council for Legal Education and the University of Malawi Senate is with regard to establishing, conducting and regulating courses of legal education at the Law School in the University of Malawi.[84] Within the University framework, under the University of Malawi Act, Senate has the ultimate authority to oversee the establishment, conduct and regulation of courses in the University. This is an overlap that has to be resolved under statute through law review. It is evident that with the mushrooming of various Universities in the country, both public as well as private, it will no longer be tenable to have only one formally recognised Law School, i.e. in the University of Malawi. It is clearly legitimate for the new institutions to run law programmes and to have the necessary resources. In this regard, it would not be practical in my view for the Council for Legal Education to prescribe the establishment, conduct and regulation of courses in all these institutions.

The Council for Legal Education comprises the Attorney General, a High Court Judge, a Magistrate, two legal practitioners nominated by the Malawi Law Society, two legal practitioners from the public service appointed by the Chief Justice and two law teachers appointed by the Minister.

 

6. The Legal Profession

Unlike other common law/Commonwealth jurisdictions where the legal profession is divided into Solicitors and Barristers, or Attorneys and Advocates, the legal profession in Malawi does not have any such distinctions. Any person admitted to practice law in the country is simply called a legal practitioner and he or she is entitled to do all professional work that would be handled by either a Solicitor/Attorney or Barrister/Advocate in other jurisdictions.

 

The Legal Education and Legal Practitioners Act provides for qualifications that would entitle a person to apply for admission to practice law in Malawi. In summary, these requirements are that the person must:

 

(a)  Either be e citizen of Malawi or he (or she) must have resided in Malawi for a continuous period of not less than three months immediately before the date of filing the petition for admission;

 

(a)  Have a degree or diploma in law or legal studies from an educational institution prescribed by the Minister, or he has been admitted to practice as a member of the Bar, Solicitor, Advocate, Legal Practitioner, Law Agent, Writer to Signet, or Attorney in any one of the countries specified in the First Schedule of the Act; and

 

(b)  Have passed the Malawi Law Examinations.[85]

 

There is a proviso, however, that requirements (b) and (c) above are not applicable in the case of a person who has been awarded the degree of Bachelor of Laws by the University of Malawi.

 

Professional discipline is regulated primarily by the Malawi Law Society established under Section 25(1) of the Legal Education and Legal Practitioners Act. Section 36 of the Act mandates the Society to make various Rules governing professional conduct of lawyers. Section 37 of the said Act also establishes the Disciplinary Committee comprising two members elected by the Society and the Solicitor General. The Disciplinary Committee is tasked with the responsibility of investigating or inquiring into the conduct of legal practitioners whether at the instance of any member of the profession or the public at large; or by the High Court acting on its own motion.

 

 

7. Institutions Strengthening Constitutional Democracy

·       Office of the Ombudsman

 

Chapter X of the Constitution provides for the office of the Ombudsman. It provides that the Office of the Ombudsman may investigate all cases where it is alleged that a person has suffered injustice and it does not appear that there is any remedy reasonably available by way of proceedings in court or by way of appeal from a court.

 

Section 126 of the Constitution provides that where the investigations of the Ombudsman reveal evidence that an injustice has been done, the Ombudsman shall direct that administrative action be taken to provide a remedy, ensure remedies in future and ensure prosecution where applicable. These provisions clearly demonstrate that the office of the Ombudsman is an important institutional mechanism in the area of furthering the right of access to justice.

 

Sections 15(2) and Section 46(2)(b) state, among other things, that a person or group of persons that feels that human rights guaranteed under the constitution have been violated or threatened may approach the Ombudsman for assistance or relief. Thus the Office has a key role in the area of protection and enforcement of human rights, and has in practice proved to be a key avenue for realisation by the people of their right of access to justice.

 

·       Malawi Human Rights Commission

 

The Malawi Human Rights Commission is established under section 129 of the Constitution with the primary mandate of investigating violations of human rights and protecting human rights in Malawi. The Constitution gives it powers to investigate and make recommendations in section 130, but explicitly states that it has no judicial or legislative functions. The Human Rights Commission Act (Cap 3:080 of the Laws of Malawi) is an enabling piece of legislation passed to make the Commission operational. The Act in section 12 states that the mandate of the Commission is to promote and protect human rights in Malawi in the broadest sense possible. This broad mandate has enabled the Commission to take up matters in court for litigation where it has felt that that is the best way of promoting or protecting human rights in a particular case.

 

 

·       Malawi Electoral Commission

 

The Malawi Electoral Commission (MEC) was established under Section 75(1) of the Constitution. The Section requires that the Chairperson of the Commission be a judge nominated by the Judicial Service Commission. The MEC is a very important institution that is at the centre of ensuring the constitutional democracy in Malawi is preserved. The foundational cornerstone of representative democracy discussed earlier in this article can only have meaning if the MEC conducts elections in a credible, free and fair manner.

The mandate of the MEC is spelt out under Section 76(2) of the Constitution. That subsection states that the functions of the Electoral Commission include:

 

a.     to determine constituency boundaries impartially on the basis of ensuring that constituencies contain approximately equal numbers of voters eligible to register, subject only to considerations of –

 

i.     population density;

ii.   ease of communication; and

iii.  geographical features and existing administrative areas;

 

b.     to review existing constituency boundaries at intervals of not more than five years and alter them in accordance with the principles laid down in subsection (2) (a);

c.     to determine electoral petitions and complaints related to the conduct of any elections;

d.     to ensure compliance with the provisions of this Constitution and any other Act of Parliament; and

e.     to perform such other functions as may be prescribed by this Constitution or an Act of Parliament.

 

These provisions tend to show that although the functions listed are not exhaustive, the primary mandate of MEC is the determination of constituency boundaries and electoral petitions and complaints. These are no doubt important issues deserving of express mention in the institution’s constitutional mandate, especially bearing in mind the direct representation political system provided for in Section 62 of the Malawian Constitution. However, it is quite troubling that the Constitution falls short of including the functions of conducting free and fair elections and declaring election results with speed. Electoral experiences around the world would clearly suggest that the primary functions of an electoral body should be the latter two.[86]It would therefore be imperative that any process of constitutional review should address this issue.

 

 

8. Legal Aid in Malawi

Legal Aid in Malawi is governed by the Legal Aid Act (Cap 4:01), which establishes the Legal Aid Department. Sections 4 & 5 provide for circumstances in which legal aid may be granted to a person either committed for trial in the High Court by a magistrate or tried in a subordinate court. Generally, a normative institutional mechanism exists to ensure that legal representation is provided by the state to those that need the same and may not afford the services of a lawyer, both in criminal as well as civil cases, though an analysis of the provisions show, arguably for good reason, that primacy is given to assistance in criminal matters.

 

However, there is one particularly troubling provision in the Act. This is section 12 that allows the Minister to determine whether the Legal Aid Department represents a particular individual. This provision, among other things, would be liable to political abuse, bearing in mind that the Minister is given the final word. Indeed, pursuant to the powers vested in him/her in section 12, the Minister issued an Order, GN No. 154/1964 (N), that there shall be no legal aid for motor manslaughter under section 208 unless Minister specifically authorises. This appears inconsistent with the provisions of Section 42(2)(f)(v) as read with Section 44(5) of the Constitution that provide for an unqualified right to legal representation; only that where the same is provided for by the State, as in the case of legal aid, the State may choose the lawyer to represent him or her. However, what the Ministerial Order herein does is to completely abrogate the right to legal aid in cases of motor manslaughter.

 

 

9. Legal Research

 

 

9.1. Laws of Malawi Series

 

Legislation in Malawi is classified into various categories patterned along broad-subject areas in a series called the “Laws of Malawi”. The following table is a non-exhaustive list of Malawian statutes as they appear in the Laws of Malawi. Whilst the aim of this part is simply to provide a catalogue of these various statutes and their official citation (numbering), I will also where appropriate provide some short commentaries:

 

CATEGORY

REFERENCE AND NAME

COMMENT

Interpretation and Revision of Statutes

Cap. 1:01.        General Interpretation Act

                  1:02.       Revision of the Laws Act

1:03.       Public Service Act

 

It is unclear why the Public Service Act appears under this sub-heading in the statutes. One would have thought that it would appear under the “Public Service” heading.

 

Parliament

 

 

Cap. 2:01         Parliamentary and Presidential Elections Act    

                  2:02.      Presidents (Salaries and Benefits) Act

                  2:03.      Electoral Commission Act

                  2:04.      National Assembly (Powers and Privileges) Act

                  2:05.      National Assembly (Emoluments) Act

                  2:06.      Parliamentary Pensions (Enabling Provisions) Act

                  2:07.      Political Parties (Registration and Regulations) Act

                  2:08.      Parliamentary Service Act

 

The heading “Parliament” as appears in the Laws of Malawi is completely misleading here. One would perhaps have thought that “Political Regulation” might be a better heading.

 

Administration of Justice

 

Cap. 3:01         Supreme Court of Appeal Act

                  3:02.      Courts Act

                  3:03.      Traditional Courts Act

                  3:04.      Legal Education and Legal Practitioners Act

                  3:05.      Sheriffs Act

                  3:06.      National Compensation Tribunal (Miscellaneous Provisions) Act

                  3:07.      Ombudsman Act

                  3:08.      Human Rights Commission Act

                  3:09.      Law Commission Act

Cap. 4:01.       Legal Aid Act

                  4:02.      Inquests Act

                  4:03.      Evidence by Commissions Act

                  4:04.      Service of Process and Execution of Judgments Act

                  4:05.      Banker’s Books Evidence Act

                  4:06.      Authentication of Documents Act

                  4:07.      Oaths, Affirmations and Declarations Act

 

The Law Commission is clearly misplaced under this heading. It certainly belongs to the first heading (i.e Interpretation and Revision of Statutes).

 

Civil Law and Procedure

 

Cap. 5:01.       Statute Law (Miscellaneous Provisions) Act

                  5:02.      Trustees Act

                  5:03.      Trustees Incorporation Act

                  5:04.      Press Trust Reconstruction Act

Cap. 6:01.      Civil Procedure (Suits by or against the Government or Public Officers) Act

                  6:02.      Limitation Act

                  6:03.      Arbitration Act

                  6:04.      Loans Recovery Act

 

 

Criminal Law and Procedure

 

Cap. 7:01         Penal Code

                  7:02.      Witchcraft Act

                  7:03.      Hijacking Act

                  7:04.      Corrupt Practices Act

Cap. 8:01.       Criminal Procedure and Evidence Code.

                  8:02.      Fingerprints Act

                  8:03.      Mutual Assistance in Criminal Matters Act

Cap. 9:01.        Probation of Offenders Act.

                  9:02.      Prisons Act

                  9:03.      Convicted Persons (Employment on Public Work) Act

                  9:04.      Advisory Committee on Granting of Pardon Act.

 

 

Administration of Estates (Deceased and Bankrupt Persons)

 

Cap.10:01.     Administrator General Act.

                  10:02.    Wills and Inheritance Act.

                  10:03.    Bankruptcy Act.

                  10:04.    Deeds of Arrangement Act.

 

 

Defence, Security and Public Order

 

Cap. 12:01.    Defence Force Act

                  12:02.    National Service Act.

                  12:03.    Geneva Conventions Act.

Cap. 13:01.    Police Act

                  13:02.    (Reserved for Police Reserve)

Cap. 14:01.    Official Secrets Act.

                  14:02.    Preservation of Public Security Act.

                  14:03.    Restriction and Security Orders Act

                  14:04.    Protected Places and Areas Act.

                  14:05.    General Amnesty Act.

                  14:06.    (Reserved).

                  14:07.    Supplies Control Act.

                  14:08.    Firearms Act.

                  14:09.    Explosives Act.

                  14:10.    Riot Damages Act.

 

Nationality, Immigration

 

Cap. 15:01.     Malawi Citizenship.

                  15:02.    (Reserved)

                  15:03.    Immigration Act.

                  15:04.    Refugees Act.

Cap 16:01.    Immunities and Privileges Act

                  16:02.    Treaties and Conventions Publication Act

 

The immunities and privileges Act and the Treaties and Conventions Publication Act are wrongly categorised here. They should have been classified perhaps under a heading called International Relations and law.

Public Service

 

Cap 17:01. Promissory Oaths Act.

It is unclear why promissory oaths appear under the public service heading; and further, why this has to be the only item under this heading. Perhaps this tem could have been appropriately placed under the civil law and procedure part.

General Administration

 

Cap. 18:01.     Commissions of Inquiry Act.

                  18:02.    (Reserved for Registration)

                  18:03.    Protected Flag, Emblems and Names Act.

                  18:04.    Regional and District Boundaries and Place Names Act.

                  18:05.    Public Holidays Act.

                  18:06.    Public Stores Act.

                  18:07.    Statutory Bodies (Control of Contracts) Act.

                  18:08.    Control of Goods Act.

                  18:09.    Malawi Red Cross Society Act.

 

Printing, Broadcasting, Cinema

 

Cap.19:01.     Printed Publications Act.

                  19:02.    (Reserved)

                  19:03.    Censorship and Control of Entertainments Act.

 

Local Government

 

Cap. 22:01. Local Government Act.

                  22:02.   Local Government Elections Act.

                  22:03.   Chiefs Act.

                  22:04.   Local Government Elections.

Cap. 23:01.Town and Country Planning Act.

                  23:02.   Urban Areas (Public and Private Streets).

 

Person’s Names, Births and Deaths, Marriages, Children

 

Cap. 24:01.     Births and Deaths Registration Act.

                  24:02.   Change of Name (Restriction) Act.

Cap. 25:01.    Marriage Act.

                  25:02.   African Marriages (Christian Rites) Registration Act.

                  25:03.   Asiatics (Marriage, Divorce and Succession) Act.

                  25:04.   Divorce Act.

                  25:05.   Married Women (Maintenance) Act.

Cap. 26:01.    Adoption of Children Act.

                  26:02.   Affiliation Act.

                  26:03.   Children and Young Persons Act.

                  26:04.   Maintenance Orders (Enforcement) Act.

 

Statistics, Archives, Monuments, Memorials

 

Cap. 27:01      Statistics Act.

Cap.28:01      National Archives Act.

Cap.29:01.    Monuments and Relics Act.

                  29:02.   War Graves Act.

                  29:03.   Ex-Servicemen’s Memorial Home.

 

Education and Culture

 

 

Cap. 30:01. Education Act.

                  30:02.   University of Malawi Act.

                  30:03.   Malawi Book Service Act.

                  30:04.   Malawi National Examinations Board Act.

                  30:05.   Malawi National Council of Sports Act.

                  30:06.   Government Teaching Service Commission Act.

                  30:07.   Mzuzu University Act.

Cap. 31:01.     National Library Service Act.

                  31:02.    Boy Scouts and Girl Guides Act.

                  31:03.    (Reserved).

                  31:04.    National Youth Council of Malawi Act.

 

Social Welfare

 

 

Cap.32:01.    Buidling Societies Act.

                  32:02.   Malawi Housing Corporation Act.

Cap 33:01.     Africans on Private Estates Act.

                  33:02.   Handicapped persons Act.

                  33:03.   Kamuzu National Foundation Trust Act.

                  33:04.   National Family Planning Council of Malawi Act.

                  33:05.   Disaster Preparedness and Relief Act.

 

Health

 

Cap 34:01.Public Health Act.

                  34:02.   Mental Treatment Act.

                  34:03.   Anatomy Act.

Cap 35:01.Pharmacy, Medicines and Poisons Act.

                  35:02.   Dangerous Drugs Act.

                  35:03.   Medical Practitioners and Dentists Act.

                  35:04.   Nurses and Midwives Act.

 

Public Finance and Development

 

Cap. 38:01      Government Securities Act.

Cap. 39:01.     Malawi Development Corporation Act.

                  39:02.   Capital City Development Corporation Act.

                  39:03.   Export Promotion Council Act.

                  39:04.   Exports Incentives Act.

                  39:05.   Investment Promotion Act.

                  39:06.   Export Processing Zones Act.

Cap. 40:01.   Investments Disputes (Enforcement of Awards) Act.

                  40:02.   Bretton Woods Agreement Act.

40:03.   International Finance Corporation and the International Development Association

                  Agreements Act.

40:04.   African Development Bank Act.

Public Finance Management Act (Act No. 7 of 2003)

Public Audit Act (Act No. 6 of 2003)

Public Procurement Act (Act No. 8 of 2003)

 

Revenue

 

Cap. 41:01.     Taxation Act.

41:02.    Accommodation and Refreshment Tax Act.

Cap. 42:01.    Customs and Excise Act.

42:02.   (Reserved).

42:03.   Tea Cess Act.

42:04.   Hides and Skins (Cess) Act.

Cap.43:01.    Stamp Duties Act.

43:02.   Estate Duty Act.

 

Banking and Exchange

 

Cap 44:01.     Banking Act.

44:02.   Reserve Bank of Malawi Act.

44:03.   Post Office Savings Bank Act.

44:04.   Standard Bank Limited and Barclays Bank D.C.O. Act.

Cap 45:01.    Exchange Control Act.

45:02.   Decimal Currency Act.

 

Commercial Institutions

 

Cap 46:01.   Business Licensing Act.

46:02.   Business Names Registration Act.

46:03.   Companies Act.

46:04.   Partnership Act.

46:05.   Property and Businesses (Presumptions and Ownership) Act.

46:06.   Capital Market Development Act.

46:07.   Public Enterprises (Privatization) Act.

Cap. 47:01.   Insurance Act.

47:02.   (Reserved).

47:03.   Gaming Act.

 

Commerce (General)

 

Cap.48:01.    Sale of Goods Act.

48:02.   Bills of Exchange Act.

48:03.   Bills of Sale Act.

48:04.   Weights and Measures Act.

48:05.   Hire-Purchase Act.

48:06.   Commercial Credits Act.

48:07.   Commercial Advertising (Traditional Music) Control.

48:08.   Metrication Act.

Cap.49:01      Trade Marks Act.

49:02.   Patents Act.

49:03.   Copyright Act.

49:04.   Merchandise Act.

49:05.   Registered Designs Act.

49:06.   (Reserved for Trade Description)

49:07.   Arts and Crafts Act.

 

Commerce (Specific Businesses)

 

 

Cap50:01.     Tourism and Hotels Act.

50:02.   Hide and Skin Trade Act.

50:03.   Petroleum Act.

50:04.   Slaughter of Cattle Act.

50:05.   Automotive Trades Registration and Fair Practices Act.

50:06.   Second-Hand and Scrap Metal Dealers Act.

50:07.   Liquor Act.

50:08.   Petroleum Control Commission Act.

 

Industry (General)

 

Cap. 51:01.     Industrial Licensing Act.

                  51:02.    Malawi Bureau of Standards Act.

 

Industry (Specific)

 

Cap. 52:01.    Standardization of Soap Act.

                  52:02.   Iodization of Salt Act.

 

Professions

 

Cap. 53:01.    Professional Qualifications Act.

                  53:02.   Architects and Quantity Surveyors Act.

                  53:03.   Engineers Act.

                  53:04.   Veterinary Surgeons Act.

                  53:05.   National Construction Industry Act.

                  53:06.   Public Accountants and Auditors Act.

                  53:07.   (Reserved for Surveyors Registration)

                  53:08.   Land Economy Surveyors, Estate Agents and Auctioneers Act.

 

One would imagine that perhaps this heading could have been comprehensive covering all recognised professions. Thus for instance, the legal and medical professions could equally have been placed under this part.

Labour

 

Cap. 54:01.    Labour Relations Act.

54:02.   Regulation of Minimum Wages and Conditions of Employment Act.

54:03.   Employment Act.

54:04.   Employment of Women, Young Persons and Children Act.

54:05.   Reserved

54:06.   Technical Entrepreneurship and Vocational Education and Training Act.

54:07.   Occupational Safety, Health and Welfare Act.

Cap.56:01.   Labour Legislation (Miscellaneous provisions) Act.

56:02.   African Emigration and Immigrant Workers Act.

Workers' Compensation Act (Act No 7 of 2000)

 

Land

 

 

Cap. 57:01.    Land Act.

Cap.58:01      Registered Land Act.

58:02.   Deeds Registration Act.

58:03.   Conveyancing Act.

58:04.   Lands Acquisition Act.

58:05.   Adjudication of Title Act.

Cap.59:01.   Customary Land (Development) Act.

59:02.   Local Lands Boards Act.

59:03.   Land Survey Act.

Cap.60:01.    Temporary Control of Premises Act.

60:02.   Environment Management Act.

Bio safety Act (Act No. 13 of 2002)

 

 

It is submitted that the Environment Management Act was wrongly classified here. Firstly, the question of Environment Management is not a principally land issue. Land is just one of the important aspects thereof. Secondly, Environment management is such an important and critical issue today deserving a self-standing category in this series.

Mining

 

Cap.61:01. Mines and Minerals Act.

61:02.    Petroleum (Exploration and Production) Act.

 

Forestry and Agriculture

 

Cap.63:01.    Forestry Act.

63:02.   (Reserved)

63:03.   Farmer’s Stop-Order Act.

Cap. 64:01.   Plant Protection Act.

64:02.   Noxious Weeds Act.

Cap. 65:01.    Special Crops Act.

65:02.   Tobacco Act.

65:03.   Control of Tobacco Auction Floors Act.

65:04.   Cotton Act.

65:05.   Agriculture (General Purposes) Act.

 

Veterinary, Game and Fish

 

Cap. 66:01.          Protection of Animals Act.

66:02.   Control and Diseases of Animals Act.

66:03.   (Reserved)

66:4.      (Reserved)

66:05.   Fisheries Conservation and Management Act.

66:06.   (Reserved)

66:07.   National Parks and Wildlife Act.

 

Agricultural Marketing

 

Cap.67:01.    (Reserved)

67:02.   Meat and Meat Products Act.

67:03.   Agricultural Development and Marketing Corporation Act.

67:04.   Fertilisers, Farm Feeds and Remedies Act.

67:05.   Milk and Milk Products Act.

 

Posts , Telegraphs and Radiocommunications

Cap. 68:01.          Communications Act.

 

Ways and Communications

 

Cap.69:01.    Road Traffic Act.

69:02.   Public Roads Act.

69:03.   Railways Act.

69:04.   Malawi Railway Holdings Company Act.

69:05.   Malawi Road Transporters Authority Act.

69:06.   National Road Safety Council Act.

69:07.   National Roads Authority Act.

Cap.70:01.    Aviation Act.

70:02.   Carriage by Air Act.

70:03.   National Airline Act.

70:04.   (Reserved)

Cap.71:01.    Inland Waters Shipping Act.

 

Public Utilities

 

Cap.72:01.    Waterworks Act.

72:02.   (Reserved)

72:03.   Water Resources Act.

72:04.   (Reserved)

Cap.73:01.   Electricity Act.

 

 

 

9.2. Law Reporting

 

(a)           African Law Reports Malawi Series (ALR Mal.): Vols 1 – 6. These cover the period between 1923 and 1972. Example of citation under this series: McCarthy v. Stafford, 1923-60 ALR Mal. 4.[87]

(b)           Malawi Law Reports – Malawi Law Reports Series (MLR): Volumes 7 -16. This series is a continuation of the ALR Mal Series and covers the years between 1973 and 1993. Volumes 13-16 are also available on CD. Example of citation under this series: Republic v. Chirwa, 7 MLR 8.[88] It is clear here that Malawi faces a serious problem when it comes to law reporting. The last official Report is now 15 years old. The other official source, the judiciary website provided in (c) below, is not regularly updated and only has a skeletal collection of court decisions. The Southern Africa Legal Information Institute (SAFLII) Website provided below, though much better in its collection; is still woefully insufficient and cannot replace the essence of an official Malawi Law Reports series.

(c)            Decided cases by Malawian Courts can be accessed on the Malawi Judiciary website <http://www.judiciary.mw> and;

(d)           On the Southern Africa Legal Information Institute SAFLII website <http://www.saflii.org>.

 

 

9.3. Publications

 

(a)  Chilumpha C.H, Introduction to company Law of Malawi (2nd Ed.) (Blantyre:Commercial Law Centre, 1999)

(b)  Chilumpha, C.H, A functional Approach to Credit Law (Blantyre: University of Malawi, 1991)

(c)   Chilumpha, C.H, Labour Law (Blantyre: Commercial Law Centre, 2003)

(d)  Chilumpha, C.H, The Law of Carriage of Goods in Malawi (Blantyre: University of Malawi, 1994)

(e)   Kandako Mhone, Contract (Cases and Materials)

(f)   Kanyongolo, F.E, Malawi: Justice Sector and the Rule of Law (Johannesburg: AfriMAP, 2006).

(g)  Kasambara, Civil and Procedure: Cases and Materials.

(h)  Machika, M.R.E, The Malawi Legal System: An Introduction (Zomba: University of Malawi, 1983).

(i)   Mhura –Intestacy: A monograph (Zomba: University of Malawi).

(j)    Newman, D. Criminal procedure and evidence in Malawi: Law Practice Series No. 3 (Zomba: University of Malawi, 1982)

(k)  Taylor, B Land Law in Malawi (A Manual) (Zomba: University of Malawi, 1982).

(l)   Wilkinson, M – Civil Procedure in Malawi (A Manual) (Zomba: University of Malawi, 1981).

(m)                  Wilkinson, M, Land Transactions in Malawi, Law Practice Series No. 2

(n)  Wilkinson, M, The Drafting of Legal Documents, Law Practice Series No. 6

 

 

9.4. Legal Journals

 

(a)  Malawi Law Journal (PreText Publishers, Capetown)

(b)  Students Law Journal (University of Malawi)

 

 

9.5. Main Legal Publishers

 

(a)  Commercial Law Centre, Blantyre.

(b) University of Malawi Press.

(c) Government Press, Zomba.

 

 

9.6. Law Schools

 

A.            Faculty of Law, University of Malawi (Chancellor College), P.O. Box 280, Zomba. E-mail: Charles C. Mhango <cmhango@chanco.unima.mw> (Dean of Law).

B.            Centre for Legal Studies, Catholic University of Malawi, Montfort Campus, Nguludi, P.O. Box 5452, Limbe. E-mail: legalstudies@cunima.net.

Comment: So far, it is only the Faculty of Law at Chancellor College that is accredited by the Council for Legal Education as well as the Legal Education and the Legal Practitioners Act to offer degrees that entitle the holders to apply for admission to practice law in Malawi as legal practitioners.



[1]                 See NSO, 2008 Population and Housing Census Preliminary Report, <www.nso.malawi.net/data_on_line/demography/census_2008/MWCensus08_report.pdf> (accessed on 4 December 2008).

[2]                 See <http://en.wikipedia.org/wiki/Malawi> (accessed 10th September 2008)

[3]                 See <http://www.britannica.com/EBchecked/topic/423048/Nyasaland-Districts-Protectorate> (accessed 10th September 2008)

[4]                 The Order in Council was passed under the Foreign Jurisdiction Act, 1890 in England. See Hansard, HL Deb 22 July 1907 vol 178 c1082.

[5]                 It remains unclear why the name was changed from Nysaland to Malawi.

[6]                 These were Archbishop J. Chiona, Bishop F. Mkhori, Bishop M.A. Chimole, Bishop A. Assolari, Bishop A. Chamgwera, Bishop G.M Chisendera, and Monsignor J. Roche.

[7]                 Among other things, the Catholic Priests, challenging the feared Banda regime, stated that: people in positions of responsibility… should be willing to allow their performance be judged by the people they serve. Accountability is a quality of any good government. People are entitled to know how their representatives fulfil their duties. No disrespect is shown when citizens ask questions in matters, which concern them… We cannot ignore or turn a blind eye to our people’s experience of unfairness and injustice, for example those who, losing their land without fair compensation, are deprived of their livelihood, or those of our brothers and sisters who are imprisoned without knowing when their cases will be heard. In a just society, a citizen must have easy access to an independent and impartial court of justice whenever his rights are threatened or violated. In particular, before a penalty is imposed, it is in the interest of justice and human dignity that the accused be informed in good time of the charge against him and be granted opportunity for a fair trial, and where necessary, the possibility of legal counsel.’ For those familiar with the political climate in which this language was expressed, it was an act of great courage on the part of the Priests.

[8]                Among other things, detaining Catholic Bishops was going to bring the country into unprecedented international political spotlight, and that was not in the interests of the regime. Further, the Catholic Church in Malawi has a huge following and the country generally has high reverence for religious leaders. As such, such arrests were bound to ignite a lot of disenchantment and anger nationwide.

[9]                 See the case of Republic v. Chihana, Criminal Case No. 1 of 1992 (High Court); and the case of Chihana v. Republic, MSCA Crim. App. No. 9 of 1992.

[10]               Act No. 2 of 1992

[11]               Act No. 14 of 1993

[12]               A Bill of Rights was incorporated into the Constitution in 1993 after the referendum. See Constitutional Amendment Act No. 25 of 1993 (Chapter IA of the Constitution). See also the case of National Consultative Committee-v- Attorney General, Civil Cause No. 958 of 1994 (High Court). The 1993 Bill of Rights had provisions relating to the protection of fundamental rights and freedoms of the individual. These included the protection of the rights to life, personal liberty, protection from slavery and forced labour, protection from inhuman treatment, protection for privacy of the home and other property, protection of freedom of conscience, freedom of expression, freedom of assembly and association, and protection from discrimination on the grounds of race, tribe, place of origin, political opinions, colour or creed.(See also <https://webdev.ilo.org/dyn/natlex/natlex_browse.details?p_lang=es&p_classification=01.01&p_origin=SUBJECT&p_country=MWI&p_country_all_any=ALL&p_keyword_all_any=ALL&p_start=1> (accessed on 11th September 2008)

[13]               Cap 7:04 of the Laws of Malawi. This Act strictly regulated the manner of dressing in the country with the stated aim of ensuring decency in dressing.

[14]               Constitution (Amendment) Act (Act No.13 of 1994).

[15]               Cap 14:05 of the Laws of Malawi.

[16]               his is because, as will be shown later in this article, the original intent and provision in the 1994 Constitution was that the country would have a bicameral legislature with a National Assembly and a Senate. The Senate was subsequently abolished by the National Assembly as Parliament before it became operational. A number of scholars such as Msaiwale Chigawa have argued that the abolition of the Senate was unconstitutional.

[17]               Civil Cause No. 63 of 1996 (HC).

[18]                             For further discussion on the social contract theory, see the Internet Encyclopaedia of Philosophy- <http://www.iep.utm.edu/s/soc-cont.htm#SH2c>. Summarising the argument in John Locke’s ‘Two Treatises on Government’, the following emerges from the Encyclopaedia: ‘Political society comes into being when individual men, representing their families, come together in the State of Nature and agree to each give up the executive power to punish those who transgress the Law of Nature, and hand over that power to the public power of a government. Having done this, they then become subject to the will of the majority. In other words, by making a compact to leave the State of Nature and form society, they make “one body politic under one government” (par. 97) and submit themselves to the will of that body. One joins such a body, either from its beginnings, or after it has already been established by others, only by explicit consent. Having created a political society and government through their consent, men then gain three things which they lacked in the State of Nature: laws, judges to adjudicate laws, and the executive power necessary to enforce these laws. Each man therefore gives over the power to protect himself and punish transgressors of the Law of Nature to the government that he has created through the compact.’ The Encyclopaedia proceeds to also articulate Jean-Jacques Rousseau’s conception of the social contract in ‘The Social Contract’, stating: ‘So, this is the fundamental philosophical problem that The Social Contract seeks to address: how can we be free and live together? Or, put another way, how can we live together without succumbing to the force and coercion of others? We can do so, Rousseau maintains, by submitting our individual, particular wills to the collective or general will, created through agreement with other free and equal persons. Like Hobbes and Locke before him, and in contrast to the ancient philosophers, all men are made by nature to be equals, therefore no one has a natural right to govern others, and therefore the only justified authority is the authority that is generated out of agreements or covenants.’

[19]               J.Madison, ‘The Federalist No. 51: The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments’, Independent Journal Wednesday, February 6, 1788.

[20]               Ibid.

[21]               Ibid.

[22]               MSCA, Civil Appeal No. 18 of 1996.

[23]               See for instance section 12(iii) of the Constitution. See also generally T. Franck, ‘The Emerging Right to Democratic Governance,’ The American Journal of International Law 86, 1 (1992): 46-91.

[24]               Civil Cause No. 34 of 1997

[25]               See J.M Ansah, The Malawi Constitution and the Role of the Judiciary, Paper presented at the First National Conference on the Review of the Constitution, 28 – 31 March 2006, Capital Hotel, Lilongwe, <http://www.lawcom.mw/docs/roleofjudiciary.pdf>, (accessed on 18 October 2008).

[26]               MRE Machika, The Malawi Legal System: An Introduction, (Zomba: Law Department Chancellor College, 1983), 54.

[27]               See D. Meagher, Section 48 of the Constitution of Australia, <http://www.murdoch.edu.au/elaw/issues/v6n2/meagher62_text.html#t10>, (accessed on 18 October 2008)

[28]               Ibid.

[29]               MSCA Civil Appeal No. 22 of 1996.

[30]               Civil Cause No. 80 of 1997.

[31]               See for instance, Ansah, note 16 above. In the Nseula case above, the Supreme Court took the approach that section 8 of the Constitution establishes the primary function of the Legislature is set out in Section 8 of the Constitution.’

 

[32] The term ‘Government’ here is used to denote the Executive.

[33]               Cap 6:02 of the Laws of Malawi.

[34]               Miscellaneous Civil Cause No. 99 of 1996.

[35]               Section 12(i) of the Constitution.

[36]               See note 14 above.

[37]               See M. Chigawa, The senate As the second chamber of Parliament in Malawi – Its relevance, composition and powers, Paper Presented at the Malawi Law Journal Launch Conference, Blantyre Malawi, 16 – 17 July 2008.

 

[38] On this point, also see the case of Gwanda Chakuamba & Others v. Attorney General & Others, MSCA Civil Appeal No. 20 of 2000.

[39] See Fedsure Life Assurance & Others v. Greater Johannesburg Transitional Metropolitan Council & Others, 1999 (1) SA 374, para. 58.

[40] Constitutional Cause No. 3 of 2004 (PR).

[41] Civil Cause No. 370 of 2004 (PR) (Unreported).

[42] See M.S.C.A Civil Appeal No. 22 of 2006, In the Matter of Section 65 of the Constitution: Presidential Referral (Jurisdiction).

[43] Ibid.

[44] See Machika, Note 25 above.

[45] Machika, p.3

[46] Machika, p. 18.

[47] See Section 67 of the 1966 Constitution.

[48] See sections 105 and 109 of the Constitution, respectively.

[49] See section 110(3) of the Constitution.

[50]               This paper does not discuss the Court Martial in terms of the Defence Force Act of 2004.

[51] Matrimonial Cause No. 6 of 1996.

[52] Miscellaneous Civil Cuase No. 88 of 1999.

[53] MSCA Civil Appeal 42 of 1998

 

[54] In the case of Maziko Charles Sauti - Phiri V. Privatization Commission and the Attorney General, Const. Cause No 13 of 2005, for instance, the Court said that ‘we should take this opportunity however, to respectfully suggest that perhaps greater care should be taken in certifying matters for the Constitutional Court lest its list be clogged by matters, like the instant one, that should really be handled elsewhere.’(My emphasis). It is problematic that courts should be adopting this language. Malawi has no Constitutional Court.

 

[55]               Act No. 16 of 1996.

[56]               See Section 67(1) of the Act.

[57]               See Section 71(1) of the Act.

[58] Administratively, Resident Magistrates are further classified, in order of seniority, as: Chief Resident Magistrates; Principal Resident Magistrates; Senior Resident Magistrates and Resident Magistrates.

[59] See Machika, p.15; See also section 34(1)(a) of the Courts Act.

[60] In the event of unliquidated amounts; the question of jurisdiction will be based on what amounts are likely to be claimed or awarded; and the Court may at any time decide to transfer the matter to a higher Court.

[61] Except as provided for under section 156 of the Registered Land Act (Cap 58:01 of the Laws of Malawi).

[62] Cap 8:01 of the Laws of Malawi.

[63]               See R.N Daniels, ‘Counter-Majoritarian Difficulty in South African Constitutional Law’, Bepress Legal Series, Paper 1363 (2006) (LA: Berkeley Electronic Press, 2006)

[64]               [1995] ZACC 3

[65]               MSCA Civil Appeal No. 22 of 1996.

[66]               Such as the Penal Code (Cap 7:01 of the Laws of Malawi); the Hijacking Act (Cap 7:03 of the Laws of Malawi); the Corrupt Practices Act (Cap 7:04 of the Laws of Malawi); and the Criminal Procedure and Evidence Code (Cap 8:01 of the Laws of Malawi).

[67]               Such as the Parliamentary and Presidential Elections Act (Cap 2:01 of the Laws of Malawi); the Industrial Licencing Act (Cap 51:01of the Laws of Malawi); the Land Act (Cap 57:01 of the Laws of Malawi); the Sale of Goods Act (Cap 48:01 of the Laws of Malawi); the Companies Act (Cap 46:03 of the Laws of Malawi); the Partnership Act (Cap 46:04 of the Laws of Malawi) and the Communications Act of 1998.

[68]               Such as the Banking Act (Cap 44:01 of the Laws of Malawi); the Reserve Bank of Malawi Act (Cap 44:02 of the Laws of Malawi); the Exchange Control Act (Cap 45:01 of the Laws of Malawi); the Government Securities Act (Cap 38:01 of the Laws of Malawi); and the Capital Market Development Act.

[69]               Such as the Public Finance Act of 2000; the Taxation Act (Cap 41:01 of the Laws of Malawi) and the Appropriation Act made under Section 176 of the Constitution.

[70]               See See Machika, note 14 above, 36. Such legislation might include the Legal Aid Act (Cap 4:01 of the Laws of Malawi); the Trustee Act (Cap 5:02 of the Laws of Malawi); the Loans Recovery Act (Cap 6:04 of the Laws of Malawi); the Refugees Act (Cap 15:04 of the Laws of Malawi); Malawi Red Cross Society Act (Cap 18:09 of the Laws of Malawi); the Births and Deaths Registration Act (Cap 24:01 of the Laws of Malawi); Marriage legislation (Caps 25:01-25:05 of the Laws of Malawi) and legislation relating to children (Caps 26:01-26:04 of the Laws of Malawi).

[71]               See Machika (note 15 above), p.37.

[72]               As above.

[73]               Cap. 25:03 of the Laws of Malawi.

[74]               Being the 18th of May 1994 pursuant to section 215 of the Constitution.

[75]               Emphasis supplied.

[76]               Emphasis supplied.

[77]               Comparatively, Article III para 2 of the Constitution of the United States of America for instance provides, in part, that [t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority…’ (Emphasis supplied).

 

[78]               Miscellaneous Civil Cause No. 99 of 2007.

[79] H. Barnett, Constitutional and Administrative Law, 5th Edition, at p. 31

 

[80] The Electoral Commission Act.

[81]               T. Hansen, Implementation of International Human Rights Standards Through the National Courts of Malawi (2000) unpublished, 4.

[82]               Communication No. 152/96, para 66.

[83]               Adoption Cause No. 2 of 2006 (High Court, Lilongwe Registry). The name of the adoptive child, though explicitly mentioned in the judgment, is withheld here because, as a matter of principle, the author disagrees with the practice by most courts in Malawi of referring to infant adoptees by name. He believes that privacy in such instances is of the high essence.

[84] Currently, there is only one Law School in the Faculty of Law of the University of Malawi.

[85] See Section 9(3) of the Legal Education and Legal Practitioners Act.

[86]               In Malawi, a number of cases, including those of Attorney General & Others v. Gwanda Chakuamba & Others, M.SC.A Civil Appeal No. 20 of 1999 and Dr. Charles Kafumba & Others v. Malawi Electoral Commission & Another, Msc.Cause No. 35 of 1999 have come before the courts essentially premised on the footing that the elections were not held, or were not being held, in a free and fair manner. In the case of Dr. Charles Kafumba and others v. The Electoral Commission and Another (above), the importance of these unstated primary functions was recognized, and Justice Mkandawire expressed satisfaction that the Electoral Commission was ‘aware that its primary function [was] to ensure that the country holds free and fair elections.’ It is certainly curious that the framers of the Malawian Constitution seem to have missed on this very important aspect.

[87] See Machika, note 25 above, p.138.

[88] Ibid.