Malawi Law Journal - Volume 5, Issue 2, 2011
Volume 5, Issue 2, 2011
Author Chikosa M. SilungweSource: Malawi Law Journal 5, pp V –VI (2011)More Less
This issue of the MLJ represents a unique moment whereby intellectual thoughts from the bar, the judiciary and the academy have converged. While we have come to take the contributions from the bar and the academy as a matter of course, we are delighted that we have a contribution from a senior member of the judiciary. We hope that this will mark the beginning of an avalanche of contributions from the Malawi bench beyond the delivery of court judgements.
Source: Malawi Law Journal 5, pp 93 –113 (2011)More Less
Information and communication technologies (ICTs) continue to bring positive change to both developed and developing countries worldwide. Malawi, as is the case with many other countries in Africa, has recognised the need to incorporate ICTs in its strategies for economic and social development. Unfortunately, the positive benefits derived from ICTs are undermined by those who use ICTs for purposes of committing crime. The convergence between ICTs and crime, or what is commonly referred to as 'cybercrime', is today a global security nightmare, affecting both developed and developing countries. Efforts to deal with the problem are being made at international, regional and domestic levels, and calls are being made for individual countries to enact laws dealing with cybercrime. Within the Southern African Development Community, countries have already enacted such legislation while others are in the process of doing so. Malawi is one of the few countries in the region that is yet to initiate efforts to enact cybercrime legislation. This article makes out a case for Malawi to consider enacting such legislation, and to do so as a matter of urgency.
Human rights, gender and water : a case study of women, active citizenship, law reform and water governance in MalawiSource: Malawi Law Journal 5, pp 115 –130 (2011)More Less
Malawi faces 'water stress' despite the fact that water bodies cover 21 percent of the country. Water scarcity will severely limit access to water for the 'ultra-poor'. Decentralisation of water governance, increasing the participation of women in water governance structures, and fulfilling the right to water are crucial for guaranteeing access to water for all in the country. This article investigates the extent to which law reform reflects a rights-based approach to water governance and people's perceptions and needs in relation to access to water. It stresses the need for the active involvement of the people, especially women, in water governance. Using data collected through a grounded approach in two research sites (peri-urban and rural), this article reveals that water users, especially women, do not consider themselves to be holders of the right to water, which impedes their ability to demand greater access to water, to participate (effectively) in water governance structures and to hold water services providers accountable.
Author Rizine R. MzikamandaSource: Malawi Law Journal 5, pp 131 –138 (2011)More Less
This article laments the apparent rise and fall of constitutionalism in Southern Africa and wonders about the prospects for the future. It expresses the view that the judiciary is indispensable to constitutionalism. Yet the ruling elite appear to be narrowing the scope of the role of the judiciary. There appears to be deliberate attempts by the ruling elite to weaken and alienate the judiciary. Respect for court orders is not consistent and courts remain inadequately funded. The independence of the courts in this region needs to be bolstered in order for constitutionalism to take root.
Author Dan KuwaliSource: Malawi Law Journal 5, pp 139 –147 (2011)More Less
Although 'democratic constitutions' contain comprehensive catalogues of human rights and fundamental principles, the implementation of such constitutional principles and rights remains a challenge in many African countries, including Malawi. In most cases, the governors do not consider the interests and wishes of the governed; parliament does not focus on the merits or demerits of the proposed law but rather on the intentions of the ruling elite. Yet, the government in a constitutional democracy is premised on the sustained trust of the governed. This article argues that law reformers have an important role in ensuring responsive governance and participatory democracy by aligning law and policy to the Constitution and through strategic advocacy to canvass the wishes and interests of the people.
Author Mwiza Jo NkhataSource: Malawi Law Journal 5, pp 149 –160 (2011)More Less
This article explores the international law implications for Malawi of the visit to the country by the Sudanese President Hassan Omar Al Bashir to attend a summit of the Common Market for Eastern and Southern Africa held in Malawi in October 2011. At the time Al Bashir was a subject of two warrants of arrest issued by the International Criminal Court. The central question considered is whether Malawi had the obligation to arrest and surrender Al Bashir to the International Criminal Court. Answering this question will entail a critical analysis of the nature of the obligations that Malawi undertook by signing and ratifying the Rome Statute of the International Criminal Court and of the official justification that Malawi provided for failing to execute the warrants of arrest.
Author Ronald NaluwairoSource: Malawi Law Journal 5, pp 161 –177 (2011)More Less
The right to a competent tribunal is one of the most important guarantees in ensuring a fair trial in any democratic society. It is protected by both international and national human rights law. In Uganda, it is protected by the Constitution as one of the non-derogable rights. This article analyses Uganda's military courts in the light of the right to a competent tribunal as understood in international human rights law. Although there have been attempts to put in place safeguards in Uganda's military justice legal framework to guarantee the right to a competent tribunal, this article establishes that there are still many deficiencies that need to be addressed. There are no adequate safeguards to ensure that Uganda's military courts are sufficiently legally competent and that those appointed as judicial officers are persons of integrity. Furthermore, Uganda's military courts exercise jurisdiction over civil (non-military) offences and certain civilians.