Malawi Law Journal - Volume 4, Issue 2, 2010
Volume 4, Issue 2, 2010
The unconstitutionality of the offence of possession of property reasonably suspected of being stolenAuthor Esther GumbohSource: Malawi Law Journal 4, pp 163 –182 (2010)More Less
This article is an exposition of section 329 of the Malawian Penal Code which renders a person liable to punishment if he or she fails to give a satisfactory explanation of his or her possession of property reasonably suspected of being stolen. It critiques the nature and elements of this offence and argues that the offence is unconstitutional, because it severely impinges upon the doctrine of the rule of law, especially the principle of legality, and the right to a fair trial, particularly the presumption of innocence and the right to remain silent. Since this offence is neither necessary nor reasonable in a free and democratic society, it is argued that it should be decriminalised.
Author Lynda ChilinkhwambeSource: Malawi Law Journal 4, pp 183 –198 (2010)More Less
This article reviews the capital adequacy regime for banks in Malawi. The Reserve Bank of Malawi is the single all-important regulator and supervisor of the banking sector in Malawi. Banks finance their business from customer deposits which they invest to get a return for their shareholders or indeed to further their lending business. Any investment portfolio comes with risks which, if not properly managed, may lead to great losses to the bank concerned, the public and the economy as a whole. The need to regulate and supervise banks therefore arises to safeguard the interests of depositors and to ensure the safety, soundness and stability of the financial system. The central feature of regulation is capital adequacy, because capital provides a cushion for losses and a buffer for deposit insurance, and controls excessive risk taking by banks. Currently, the capital adequacy framework for banks in Malawi covers credit risk only as provided in the Banking Act 1989 and the Directive on Banks Minimum Capital Ratios issued by the Reserve Bank of Malawi which is aligned to the 1988 Basel Capital Accord. The Reserve Bank of Malawi employs a risk-based approach to supervision covering both onsite and offsite surveillance. Although the focus of this article is on capital adequacy, it recognises that capital adequacy on itself is not enough to achieve a safe and sound financial system: capital adequacy must be supplemented with robust risk management and efficient corporate governance.
Tackling threats to the existence of the SADC Tribunal : a critique of perilously ambiguous provisions in the SADC Treaty and the protocol on the SADC TribunalSource: Malawi Law Journal 4, pp 199 –213 (2010)More Less
Following the controversy that accompanied Zimbabwe's declaration that it would not comply with the decision of the SADC Tribunal against it in the Campbell case and the refusal of the Zimbabwean municipal courts to implement the decisions of the SADC Tribunal, the Tribunal faces threats to its existence. While some of those threats are external, others are located within the founding instruments of the Tribunal. Specifically, certain ambiguities in some provisions have been raised to challenge the legality, competence and legitimacy of the SADC Tribunal. This article examines the concept of ambiguity in international legal drafting and analyses the relevant instruments of the SADC Tribunal. The article takes the view that most of the ambiguities currently found in the relevant instruments are not fatal.However, it stresses the need for Treaty amendments to address them in order to prevent future disruptive challenges to the Tribunal's existence.
Romancing the foe : the HIV epidemic and the case for a pragmatic stance on prostitution and illicit drug use in NigeriaSource: Malawi Law Journal 4, pp 215 –232 (2010)More Less
This article examines the interplay between prostitution, injection drug use and the spread of HIV/Aids in Nigeria. It also considers how Nigerian criminal law and the unfriendly social attitude to prostitution and illicit drug use vitiate the control of HIV/Aids. The article stresses the need for Nigerian criminal law to maintain a 'soft stance' on sex workers and drug users in order to accommodate their needs and vulnerabilities relating to HIV/Aids. It underscores the need to put the overall public health interest in effectively controlling the spread of HIV over and above the social aversion to prostitution and illicit drug use - an aversion which Nigerian criminal law reflects and reinforces.
Source: Malawi Law Journal 4, pp 235 –256 (2010)More Less
This article critically analyses sections 64(3) and 68(1)(g) of the Constitution of the Federal Republic of Nigeria. Section 64(3) empowers the President to call the first sitting of the National Assembly and to dissolve it every four years from the date of the first sitting. Section 68(1)(g) prohibits legislators from crossing the floor during the tenure of their office. We argue that section 64(3) intrinsically undermines, and has been used in practice by the executive to undermine, the independence of the National Assembly, while section 68(1)(g) has been used by the ruling party to weaken the opposition in the National Assembly, thereby stifling the horizontal accountability of the executive. The fact that the anti-defection clause does not apply to elected executive officials means that those officials can defect from the parties on whose platform they were voted into power to other political parties, without seeking a fresh mandate from the electorate. This loophole has the effect of the ruling party undermining the opposition parties. It is argued that Nigeria's brand of democracy is far from being stable. Consequently, this article makes a case for the review of these constitutional provisions in order to guarantee the independence of the National Assembly and ensure the electoral and horizontal accountability of the executive.
Source: Malawi Law Journal 4, pp 255 –270 (2010)More Less
Nigeria generates billions of dollars from oil exploration yearly. Yet the Niger-Delta communities, where oil prospecting activities take place, have continued to suffer from the effects of environmental degradation. The laws in place have been ineffective in protecting the rights to a suitable environment of the people in that region. As a consequence, human rights abuses in the Nigerian oil producing communities have continued to take place despite the transition from a military to a civilian regime in 1999. This article ponders over the question of the extent to which the 1999 Constitution of the Federal Republic of Nigeria and other laws of Nigeria protect the environment. The right to a healthy environment requires the government to ensure that natural resources are exploited and used sustainably without sacrificing the environment, and to regulate the activities of oil companies so that they do not cause damage to the environment. An appraisal of the existing laws and evolving mechanisms for the enforcement of environmental rights in Nigeria reveals a need for a more effective legal framework for environmental justice in Nigeria.