Malawi Law Journal - Volume 1, Issue 1, 2007
Volume 1, Issue 1, 2007
Upholding the sanctity of rights : a principled approach to limitations and derogations under the Malawian ConstitutionAuthor Danwood ChirwaSource: Malawi Law Journal 1, pp 3 –32 (2007)More Less
The 1994 Constitution of Malawi marks a break with its predecessors by placing the Bill of Rights at its fore. While the Bill of Rights is one of the most entrenched chapters in the Constitution, I argue that the view held by Malawian courts that some rights in the Constitution are not capable of being limited is misconceived and not supported by a proper construction of the Constitution. Instead, I demonstrate that all rights under the Malawian Constitution are limitable in terms of sections 44(2) and (3) of the Constitution while only a select few are derogable during public emergencies in terms of section 45 of the Constitution. Nevertheless, I argue for a principled approach to interpreting limitations to rights in order to protect the fundamental nature of the Bill of Rights. This approach demands that limitations to rights must be proved strictly and interpreted restrictively. I also analyse the doctrine of necessity, which the Supreme Court of Appeal of Malawi suggested in the Press Trust Case was a possible limitation to rights, and contend that it is of no relevance to and has no basis in Malawi?s new constitutional order.
Author Michael Goba ChipetaSource: Malawi Law Journal 1, pp 33 –47 (2007)More Less
Section 283(1) of the Penal Code shifts the burden of proving the offence of theft by public servant from the prosecution to the accused. This article examines the constitutionality of this section with particular reference to the right to be presumed innocent. It concludes that this section is inconsistent with this right and cannot be saved by the limitation provisions in sections 44(2) and (3) of the Malawian Constitution. The effect of this conclusion is that the prosecution retains the burden of proving all elements of theft in addition to establishing that the accused was a public servant, received money or property in the course of his or her employment, and failed to produce or account for it.
The efficacy and limits of criminal punishment as a means of preventing the spread of HIV / AIDS in MalawiAuthor Grace Tikambenji MaleraSource: Malawi Law Journal 1, pp 48 –61 (2007)More Less
This article examines whether criminal punishment can be used for preventing the spread of HIV / AIDS and whether a special criminal law statute is necessary in this regard. While answering these questions in the negative, it argues that efforts aimed at curbing the spread of HIV / AIDS have a greater chance of success in a climate of openness and education than in one of prohibition and punishment. The limits of criminal law as a means of preventing HIV / AIDS transmission are thus explored and the case is made against the introduction of a special criminal law statute on HIV / AIDS in Malawi.
Author 'Dejo OlowuSource: Malawi Law Journal 1, pp 62 –79 (2007)More Less
With the phenomenon of workers' migration across the globe not presenting a foreseeable end in the nearest future, and the subject being a less explored aspect of globalisation, it is timely to engage the African regional dimension of the subject within its broader global context. The objective of this essay is to define a platform for the application of human rights to migration issues in Africa as well as the theoretical parameters to that end. This essay therefore examines the normative frameworks for the protection of the rights of migrant workers and accentuates the implications of such standards and mechanisms for legal and policy initiatives in the African region. An effort is made to highlight some of the key issues that would confront policy makers in the origin, destination, and transit countries in Africa, in the longer and shorter terms. The discussions in the essay draw the trajectories for concerted national initiatives and regional responses, proffering viable modalities and strategies in that regard. Extrapolating from learned experiences around the world, this essay advocates the application of a rights-based approach to the challenges of labour migration and the plight of migrant workers in the African region and beyond.
Author Charles O. AdekoyaSource: Malawi Law Journal 1, pp 80 –99 (2007)More Less
This paper discusses critically the meaning of the crime of money laundering and explores its links to other crimes and its consequences. It tracks and analyses the legal measures that Nigeria has taken to combat it. It demonstrates that the money laundering legal regime devised during the military era was largely ineffectual mainly because the law was poorly designed and the relevant law enforcement agencies routinely abused their powers and violated human rights. By contrast, the article argues that the new money laundering regime, spearheaded by the Economic and Financial Crimes Commission, is quite promising. The recently adopted Money Laundering (Prohibition) Act 2004 and Economic and Financial Crimes Commission (Establishment) Act 2004 are analysed. While these Acts are responsible for the success that Nigeria has made thus far in the money laundering battle in the democratic era, several areas of concern remain that will impede the effectiveness of these Acts. Suggestions are made as to how these Acts could be improved.
Bidding farewell to mandatory capital punishment : Francis Kafantayeni & Others v Attorney General : notes and commentsAuthor Mwiza Jo NkhataSource: Malawi Law Journal 1, pp 103 –112 (2007)More Less
The Penal Code is the most comprehensive code of the various criminal offences and attendant penalties recognised in Malawi. It has been subjected to several amendments since its adoption in April 1930. However, no substantive amendment has been made to sections 208 to 213, which create the offences of murder and manslaughter. Section 210 prescribes mandatory capital punishment for murder. The result has been that this penalty has been imposed in every case in which a person is convicted of murder irrespective of the circumstances of the offence, victim and the offender.
Reconciling African customary law with women's rights in Malawi : the proposed marriage, divorce and family relations bill : notes and commentsAuthor Lea MwambeneSource: Malawi Law Journal 1, pp 113 –122 (2007)More Less
The 1994 Constitution of Malawi (the 'Constitution') recognises the right to culture without expressly subordinating it to any other right. At the same time, it also recognises the right of women to equality and special protection from the state. These two rights often come to a head because many African customary practices are inconsistent with the rights of women. Determining whether such practices and rules are unconstitutional is not an easy task because these practices can be protected as part of the right to culture. This article seeks to contribute to the on-going debate on the interaction between African customary law and women's rights by analysing the manner in which the proposed Marriage, Divorce and Family Relations Bill (the 'Bill') addresses this interaction.
Author Mtendewaka Owen MhangoSource: Malawi Law Journal 1, pp 125 –128 (2007)More Less