Malawi Law Journal - Volume 2, Issue 1, 2008
Volume 2, Issue 1, 2008
Author Michelo HansunguleSource: Malawi Law Journal 2, pp 3 –28 (2008)More Less
This article analyses the APRM in light of Malawi's accession. It critically examines the institutional framework of the APRM by focussing on its founding documents and the manner in which it has operated since it was established. Drawing on the lessons learnt from the first five countries - Ghana, Kenya, Rwanda, South Africa and Algeria - that have undergone the peer review thus far, it evaluates whether the mechanism has the potential to foster compliance with human rights and inculcate the ideals of good governance and democracy on the continent. In particular, it considers whether Malawi, which was one of the first countries to endorse the APRM, stands to benefit anything from the APRM and, consequently, whether it should embark on the review which is now long overdue.
Author Kalekeni KaphaleSource: Malawi Law Journal 2, pp 29 –46 (2008)More Less
This article deals with the legal quandary presented by section 108(1) of the Constitution, which entrusts unlimited original jurisdiction in all criminal and civil proceedings in the High Court, and section 110(2) of the same Constitution (buttressed by the Labour Relations Act and the Employment Act), which bequeaths original jurisdiction in labour disputes and any other disputes relating to employment to the Industrial Relations Court (IRC). It examines the two schools of thought that have emerged to resolve this dilemma - on the one hand, that all labour and employment disputes must first be heard by the IRC and, on the other hand, that there is nothing wrong with the High Court hearing labour and employment cases at first instance. After a considered analysis of the provisions involved and the case law generated by them, it argues that, strictly speaking, there is no legal bar to the High Court's competence in labour issues except those presented by practical considerations. Consequently, a constitutional amendment is needed to secure the exclusive jurisdictional competence of the IRC in all labour disputes and thus conclusively resolve the issue.
Author Justin KalimaSource: Malawi Law Journal 2, pp 47 –66 (2008)More Less
Subject to the Constitution, the Environment Management Act No 23 of 1996 (EMA) is the supreme law governing environmental issues in Malawi. This Act relies for its enforcement predominantly on criminal sanctions. This article examines the provisions creating crimes under the EMA and argues that most of them are inconsistent with the Constitution and at times make no sense in certain respects. Given the importance that the Act attaches to criminal sanctions, it is important that a comprehensive review of the Act and its criminal law provisions is undertaken to ensure the effective and optimal protection of the environment.
Author Zolomphi NkowaniSource: Malawi Law Journal 2, pp 67 –84 (2008)More Less
Malawi is undergoing a rebirth in terms of economic governance, having embraced a functional free market economy within a regional integration framework. She is repositioning herself for economic reconstruction against the backdrop of international and intra-regional trade. In this context, the social and economic infrastructures that anchor and compliment such policy initiatives are crucial. In the first decade after embracing a democratic system of governance in 1994, the bulk of the law reform initiatives in Malawi concentrated on social laws such as those dealing with human rights, understandable if one considers the history of the country. One of the side effects of such an unbalanced approach was that the laws that deal with economic regulation such as financial services regulations were neglected. As the legal reform of the financial services sector is now underway, it is fitting to consider whether the initiatives contemplated in this field are in keeping with overall government initiatives of economic reconstruction. In particular, this article examines the regulatory framework for the financial services sector and makes a case for a better legislative framework for supervision, which guarantees the independence of the regulator of this industry from political interference and incorporates adequate measures for the licensing and regular supervision of the financial services providers.
Where are the missing pieces? Constructing a mosaic of the CRC and the African Children's Charter in Malawi's law and policySource: Malawi Law Journal 2, pp 85 –114 (2008)More Less
This article undertakes a survey of Malawi's legislation and policies to determine how far she has fulfilled her obligations under the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. The analysis reveals that the implementation of child rights in Malawi has suffered from a hodgepodge execution of laws and policies aimed at addressing various issues which sometimes just happen to deal with an aspect of child protection. It is therefore argued that a comprehensive, systematic reconsideration of all child-protection legislation, policies and programmes is urgently needed to ensure that children's rights are prioritised and that children grow in an environment in which they can realise their full potential and become useful members of society. Furthermore, it is argued that the proposed Child (Justice, Care and Protection) Bill, while a laudable development, amounts to nothing more than a patch on a patch.
Source: Malawi Law Journal 2, pp 115 –134 (2008)More Less
While conceding that amnesty laws may contribute to peace, reconciliation and reconstruction in societies that have just emerged from internal armed conflict, this article argues that such laws cannot be used to exclude criminal responsibility for international and other serious crimes. Rather than casting the possible solutions to past human rights abuses as a binary opposition between peace and justice, it contends that these objectives can and should be pursued in tandem. Large scale prosecutions may undermine efforts at peace; blanket amnesties are equally not conducive to peace. Although amnesty laws have been used widely both in Africa and Latin America, these laws have generated more jurisprudence in the Inter-American human rights system than in the African human rights system. Drawing on this jurisprudence, this article argues that the African Union should step up its efforts in combating impunity and holding perpetrators of international crimes accountable within Africa and in collaboration with the International Criminal Court, if lasting peace on the continent is to be secured.
Author Jamil Ddamulira MujuziSource: Malawi Law Journal 2, pp 135 –157 (2008)More Less
The Constitution of Kenya recognises the right to a fair trial. This article examines the manner in which Kenyan courts have interpreted this right. Drawing on the jurisprudence of the international human rights monitoring bodies, in particular that of the UN Human Rights Committee, it demonstrates that courts in Kenya have faired quite well in protecting and entrenching fair trial rights. Through an in-depth discussion of the case law, an attempt is made to highlight the areas in which the jurisprudence is particularly strong and those where improvements could be made.
Legal pluralism in Malawi : Historical development 1858-1970 and emerging issues, Franz von Benda-Beckmann : book reviewAuthor Lea MwambeneSource: Malawi Law Journal 2, pp 161 –163 (2008)More Less
This book is a modified and updated version of a doctoral thesis written by the author and submitted to the University of Kiel, Germany. The book was first published in 1970 in German under the title Rechtspluralismus in Malawi : Geschichtliche entwicklung und heutige problematik. It provides an overview of the development of the Malawian legal system. In particular, it addresses the issues of 'law and legal pluralism, the debates on the creation of customary law, and the issue of law and development in the sense of legal engineering.'