Malawi Law Journal - Volume 2, Issue 2, 2008
Volume 2, Issue 2, 2008
Source: Malawi Law Journal 2, pp IV –V (2008)More Less
On 17 July 2008, the Malawi Law Journal was formally launched at Mount Soche Hotel in Blantyre, Malawi. This issue celebrates the launch. The launch was preceded by a two-day conference hosted specially for the purpose of launching the journal. The theme of the conference was : 'Malawian law and jurisprudence in the new constitutional and global order : False starts, landmarks and sticking points'. The conference was an auspicious occasion where about 14 papers on a broad range of issues of practical and academic interest to Malawi were presented and discussed. All presentations were made expertly and the discussions they provoked were rich and intellectually rewarding. Earlier versions of the first three papers included in this issue were presented at this conference. More of these papers will be featured in the 2009 volume of the journal.
Author Kalekeni K. KaphaleSource: Malawi Law Journal 2, pp 167 –168 (2008)More Less
Today marks a special day in the life of the Malawi Law Society. At long last, dreams have turned into reality, and words into action. When I first became acquainted with the law, as a student far back in 1987, I learnt of the existence of a body called the Students Law Society. I was also made to understand that there also existed a body called the Malawi Law Society.
Author Dorothy NyasuluSource: Malawi Law Journal 2, pp 169 –171 (2008)More Less
It is a great privilege and a singular honour for me to be given a rare opportunity of saying a few opening remarks at this very auspicious occasion to mark the launch of the Malawi Law Journal. Had I been making these remarks a couple of days ago, I would have been speaking in my capacity as Chairperson of the Malawi Human Rights Commission. However, my term of office expired at the beginning of this week and so, as per the request of the organisers of this conference, I proceed to make my remarks in my capacity as a Malawian woman who has been at the helm of driving the country's agenda for the promotion and protection of human rights in Malawi, especially the rights of the vulnerable and marginalised in our society.
Author Boyce P. WandaSource: Malawi Law Journal 2, pp 175 –178 (2008)More Less
When Professor Chirwa contacted me and invited me to speak at the launching ceremony of the Malawi Law Journal, I could not believe what I was reading on my desktop. Here was a man who, apart from our common origin and our commitment to law teaching, was not only introducing himself to me as a compatriot, but wanted me to talk to the Malawi Law Journal at its launch, at home, in Blantyre.
Author Lovemore MunloSource: Malawi Law Journal 2, pp 179 –181 (2008)More Less
Its stated objectives are to address the shortage of academic and practice-oriented literature on legal developments and jurisprudence in Malawi and Africa in general. It publishes articles that explore the interface, tension and congruence between law, human rights, democracy, and development in Malawi and other developing countries, especially those from Africa. It also accepts submissions analysing recent judicial decisions, new legislation and current law reform proposals in the country and the African region. Articles of a comparative nature, which are locally relevant, and those dealing with current legal issues of regional importance are also considered. All articles are peer-reviewed.
Author Msaiwale ChigawaSource: Malawi Law Journal 2, pp 185 –208 (2008)More Less
This article examines the evolution of the concept of crossing the floor in Malawi from 1964 to date. The gist of this concept is that members of the National Assembly should retain the status they professed at the time of elections throughout their tenure in the National Assembly. They cannot change sides in the National Assembly without seeking a fresh mandate. The original terms of section 65(1) of the 1994 Constitution were in line with this generally accepted meaning of this concept. Crossing the floor was limited to movement by members within the National Assembly. However, the Constitutional Amendment of 2001 extended the concept to political activities by the members pursued outside the National Assembly. This is rather bizarre and arguably constricts the freedom of association and freedom of conscience of the members of the National Assembly. This amendment is unconstitutional and the Malawi Supreme Court of Appeal erred in refusing to declare it so in the Presidential Reference case.
Public interest litigation and locus standi in Malawian constitutional law : have the courts unduly fettered access to justice and legal remedies?Author Mwiza Jo NkhataSource: Malawi Law Journal 2, pp 209 –225 (2008)More Less
In spite of the proven benefits of public interest litigation in other jurisdictions, public interest litigation has yet to be accepted as part and parcel of the Malawian legal tradition. Central to the success of public interest litigation is the court's perception of the question of locus standi. The Malawi Supreme Court of Appeal has unduly restricted the scope of locus standi under the Malawian Constitution, thereby stifling the growth of public interest litigation in the country.
A comparative analysis of the constitutional frameworks of democracy building institutions in Malawi and South AfricaAuthor Redson E. KapinduSource: Malawi Law Journal 2, pp 226 –240 (2008)More Less
This article makes a comparative analysis of the constitutional frameworks of the institutions that strengthen constitutional democracy in Malawi and South Africa. It spells out the background to the establishment of these institutions and stresses their significance in a constitutional democracy. It addresses the recent proposal to amalgamate these institutions in South Africa and concludes that such amalgamation may be appropriate in respect of just a few of these institutions such as the Human Rights Commission and the Commission on Gender Equality. A similar recommendation is made with regard to Malawi in respect of the office of the Ombudsman and the Human Rights Commission. An analysis of the constitutional provisions concerning the mandate, independence and accountability of these institutions reveals that the South African Constitution is more precise and specific than the Malawian one.
Author Kenneth K. MwendaSource: Malawi Law Journal 2, pp 241 –252 (2008)More Less
Section 31 of the Banking Act 1989 of Malawi deals with situations where a bank or financial institution conducts business in an unlawful or unsound manner. In jurisdictions such as the United States of America, the judiciary has often deferred to the expertise of bank regulatory agencies when defining what constitutes an 'unsafe and unsound practice,' by limiting its powers of review to a determination of whether the regulatory agency's action was arbitrary, capricious or otherwise unsupported by substantial evidence on the record. This experience, according to the author, is missing in Malawi. This article posits that, while it is not the primary responsibility of the judiciary or the Reserve Bank of Malawi to legislate a definition of 'conducting business in an unsound manner,' the Reserve Bank of Malawi is not prohibited by any law from providing policy guidelines on the meaning of this concept. The uncertainty that comes with the absence of a statutory definition, a regulatory norm, or some policy guidelines interpreting 'conducting business in an unsound manner' presents two unpalatable choices. The first is that the Reserve Bank of Malawi may exercise discretionary powers, relying on the doctrine of 'constructive ambiguity' inherent in section 31 of Malawi's Banking Act 1989, to capture incidents that were not contemplated by the legislative draftsman or the bank regulator. The second is that some banks, financial institutions and investors may become risk-averse and avoid pursuing product innovation in the banking sector, fearing that if they did so they might be caught by section 31 of the Banking Act 1989.
Implications of the TRIPs agreement for the protection of the right of access to medicines in UgandaAuthor Ben Kiromba TwinomugishaSource: Malawi Law Journal 2, pp 253 –278 (2008)More Less
Uganda is one of the African countries where malaria, HIV / AIDS and tuberculosis are prevalent. Medicines that can effectively treat these diseases exist. However, they are beyond the reach of a majority of Uganda's population. Against this background, this article reflects on the implications of the TRIPS Agreement for protection of the right of access to medicines in Uganda. While recognising that patents can and do adversely affect the right of access by the poor to essential medicines, it argues that Uganda can and should individually and through regional cooperation take advantage of the flexibilities in the TRIPS Agreement to protect the right to health and enhance access by the poor to medicines. It also analyses existing and proposed legislative measures aimed at regulating the pharmaceutical industry and facilitating access to medicines in the country.
Author Laurence JumaSource: Malawi Law Journal 2, pp 279 –305 (2008)More Less
Human rights principles, norms and institutions are critical in post-conflict reconstruction and peace-building, but their contribution often depends on how the principal actors and all other major players in the conflict arena receive and interact with them throughout the conflict continuum. This article attempts to map out those major points of interaction, and to isolate human rights principles that influence the choices the parties make towards the resolution of the conflict and the crafting of post-conflict political structures. It argues that since the idea of human rights has become so pervasive that even warring factions in internal conflicts are now forced to reckon with its principles, and most often show willingness to incorporate its norms in peace agreements, the human rights agenda in a post-conflict society definitely extends beyond providing an opportunity for the punishment of past violations to laying a firm foundation for building political institutions sensitive to justice, peace and reconciliation.