Malawi Law Journal - Volume 6, Issue 1, 2012
Volume 6, Issue 1, 2012
Author D.M. ChirwaSource: Malawi Law Journal 6, pp V –VII (2012)More Less
This is a special edition of the Malawi Law Journal ('MLJ'), featuring the revised versions (after peer-review) of some of the papers presented at a conference held to celebrate two landmarks: the coming of age of the Constitution of the Republic of Malawi ('Constitution') and five years of the MLJ. 2012 was a rather peculiar year for any form of celebration in Malawi. The second President of the Republic of Malawi in the democratic era, Dr Bingu wa Mutharika, died unexpectedly in April that year, after a period of deep political ruptures, rising insecurity and economic turmoil in the country precipitated by the increasingly dictatorial tendencies of the then ruling party, the People's Democratic Party ('DPP').
Author Fidelis Edge KanyongoloSource: Malawi Law Journal 6, pp 1 –18 (2012)More Less
Most of the debates on the 1994 Constitution of the Republic of Malawi attribute the failure of democracy and development in the country to shortcomings in its interpretation, application and enforcement, and not to the Constitution's own fundamental premises. This approach tends to privilege the formalities of the validity of legal norms over the political and moral legitimacy of those norms or their relationship to the social, economic or political context in which they operate. While useful to some extent, this approach may obscure the fundamental structural and ideological factors that constrain the Constitution from delivering on its promises on democracy and development. In practice, the interpretation, application and enforcement of constitutional norms are conditioned by the dynamics of substantive power relations that form its context. Malawi is far from attaining full democratisation partly because the Constitution has not yet significantly altered the structural imbalances in the power relationships and dynamics that make up the country's political, economic and social settings.
Author Trevor P. ChimimbaSource: Malawi Law Journal 6, pp 19 –62 (2012)More Less
This article traces the constitutional history of Malawi from the 1890s to date. It is an account of a deeply checkered constitutional history, starting from the period of colonial conquest and the era of dictatorial rule to the current period of democratisation. Contrary to what many commentators on Malawian constitutional law have increasingly claimed, the current Constitution is a product of a considerable period of constitution making. For constitutionalism to become embedded in Malawi, there is a need to move beyond the process of constitution making, despite any shortcomings that may be found in the Constitution, to embrace constitutionalism. The outcome of the constitution-making process that began in 1992 was a result of 'reflection and choice', rather than of 'force' or 'accident'. Instead of seeking to overhaul the Constitution at every opportunity, the focus must shift to respecting and implementing the framework it established, informed by its underlying values, in the full knowledge that its adoption was intended to turn a new chapter and not to perpetuate the entrenched habits and practices of the past. This article also tracks the role that international law has played in shaping the development of Malawian constitutional law right from the time of colonial expansion to the present day.
Author Modechai MsishaSource: Malawi Law Journal 6, pp 63 –73 (2012)More Less
The Malawian Constitution, like many other constitutions adopted by African states in the 1990s, creates a presidency that is subject to it. The President is supposed to be elected in free and fair elections held every five years and to uphold and defend the Constitution. Yet evidence abounds over the past 18 years of many and consistent unconstitutional practices and violations of the fundamental principles of democracy by the presidency. An analysis of various constitutional provisions reveals a disjuncture between the Constitution's fundamental principles and the structural relations of the institutions of the state it creates. While the Constitution is unmistakably democratic and committed to the protection of human rights, the power relations between the institutions of the state is skewed in favour of the presidency and the practice over the past 18 years has just proved as much. This calls for a re-evaluation of the assumptions that were made during the drafting of the Constitution about the presidency.
Author Dan KuwaliSource: Malawi Law Journal 6, pp 75 –96 (2012)More Less
Why was [and still is] there a perception that the President is the Commander-in-Chief of the Malawi Police Service when section 78 of the Constitution is clear that he or she is the Commander-in-Chief of the Malawi Defence Force only? Why was the President steered into the 'academic freedom' impasse sparked by the Inspector General of Police when section 153(4) of the Constitution plainly stipulates that the political responsibility for the Malawi Police Service is vested in the responsible Minister? Why is the police sometimes regarded as a threat to the population when, in actual fact it is constituted to provide public safety and to protect the rights of all Malawian in terms of section 153(1) of the Constitution? While commending the Malawi Defence Force for its apparent professionalism in discharging its constitutional roles, this article condemns the politicisation of the police in Malawi. It also interrogates the role of the Parliamentary Committee on Defence and Security in providing oversight of the security sector. Malawi needs to curb or prevent 'securocracy' by reconstructing a security apparatus that is professional, transparent, accountable and independent from politics.
Author Violet OdalaSource: Malawi Law Journal 6, pp 97 –120 (2012)More Less
The year 1994 marked the beginning of a new constitutional era for Malawians in general but, most importantly, for children as the future custodians of the Malawi nation. Those who were born in 1994 by international standards became adults in 2012 as the Constitution itself became of age. Thus, the year 2012 marked a significant year for children in Malawi as the age of 18 is internationally recognised as the end of childhood. However, despite the Constitution attaining the age of 18, it offers very limited protection to children as far as the definition of a child is concerned as the only section providing for children's rights applies to persons aged below 16. Much as this position falls far below international standards, it has regrettably been replicated in the reform of child-related laws in Malawi wherein a child is defined as a person below the age of 16. Thus, children aged between 16 and 17 cannot benefit from the special protections for children heralded by the new constitutional era. As a result, although we may talk of the Constitution becoming of age in 2012, by Malawian standards it became of age at 16, in the year 2010. This article underscores the significance of expanding the definition of a child to include those aged between 16 and 18 years. It highlights the need for the enhanced protection of children by establishing minimum ages of childhood that are compatible with international, regional acomparative domestic standards. In particular, Malawi should expand the general definition of a child to 18, as well as revise and increase the minimum ages of marriage and of criminal responsibility, both of which are significantly low relative to international, regional and emerging comparative domestic standards.