Malawi Law Journal - Volume 5, Issue 1, 2011
Volume 5, Issue 1, 2011
Source: Malawi Law Journal 5, pp 1 –31 (2011)More Less
Section 39(2) of the South African Constitution is one of the primary tools through which the Constitution is intended to do its revolutionary work, by requiring that all legislation, common law and customary law be interpreted and developed in accordance with the spirit, purport and objects of the Bill of Rights. As a result of the Constitutional Court's interpretation of that section, the Constitution has had and will continue to have a rightly extensive and transformative impact on the law governing relations between private persons.Despite that impact, or perhaps because of that impact, certain commentators have called that interpretation into question. In this article, we explain that the South African Constitution ought to be interpreted holistically and teleologically. Once the nature of constitutional interpretation is properly understood, and once section 39(2) is then viewed through the appropriate interpretive lens, it will be seen that courts are indeed mandated to develop the common law, of their own accord if need be, in each case that comes before them. Furthermore, it will be seen that that development must promote the values of the Constitution as a whole (and not just of the Bill of Rights).
Author Kalekeni KaphaleSource: Malawi Law Journal 5, pp 35 –53 (2011)More Less
This article critically analyses the newly enacted Insurance Act whose principal object is to make provision for the enhancement of the safety, soundness and prudent management of insurers and other persons involved in the insurance industry in Malawi. The Act introduces many changes to the old insurance law in Malawi. In particular, it has substantially replicated the emerging trend and practice in this field in Eastern and Southern Africa. However, the Act contains some important oversights and raises a number of legal concerns. For example, the Registrar of Financial Institutions (Registrar) has been given wide discretion to make decisions concerning the insurance business. It is argued that there are no good reasons why the Governor of the Reserve Bank of Malawi should be the Registrar. Crucially, the Act is dedicated to the regulation of the insurance business without paying specific attention to the rights of the insured. However, some of the provisions of the old Act that have been left out were crucial to the protection of the interests of assured persons. It is hoped that the issues raised in this article will help all stakeholders in improving the Act, so that the insurance sector can be enabled to play a more meaningful role in the Malawian economy.
Source: Malawi Law Journal 5, pp 55 –74 (2011)More Less
A Malawian couple, Steven Monjeza Soko and Tiwonge Chimbalanga Kachepa, decided to celebrate their engagement publicly. Within two days of the celebration, the couple was charged with 'unnatural acts' and 'gross indecency', and later subjected to humiliating investigatory tactics, denied bail, convicted and sentenced to 15 years of imprisonment. Malawi's public humiliation of the gay couple, the criminal trial and its conduct constitute a violation of its Constitution and international law. In particular, the Penal Code of Malawi, which purports to criminalise sodomy, violates the right to privacy of gay people, contrary to the Malawian Constitution itself and the International Covenant on Civil and Political Rights, which Malawi has signed and ratified.
Sub-regional and constitutional protection of socio-economic rights : SADC, Botswana, Lesotho, Malawi, Namibia and ZimbabweAuthor Admark MoyoSource: Malawi Law Journal 5, pp 75 –90 (2011)More Less
A survey of five domestic constitutions in Southern Africa shows that only the Malawian and Namibian Constitutions recognise some socio-economic rights as justiciable rights. The Constitution of Lesotho recognises socio-economic rights as principles of state policy. Zimbabwe and Botswana provide classic examples of countries in which socio-economic rights have been relegated to the margins of legal protection. Save for the right to own property, no other socio-economic rights are protected in these countries' Constitutions. However, in all these countries, the courts have demonstrated some resolve and innovativeness in interpreting some civil and political rights in order to protect certain socio-economic interests, such as by holding that the right not be subjected to torture or inhuman or degrading punishment or treatment includes a duty on the state to provide access to basic amenities of life. Such decisions offer some hope for the judicial enforcement of socio-economic rights, and for these states to fulfil the promises they have made at the sub-regional level.