Malawi Law Journal - Volume 3, Issue 1, 2009
Volume 3, Issue 1, 2009
The SADC Finance and Investment Protocol and the reform of the Malawian financial services regulatory framework : reflections in retrospectAuthor Zolomphi NkowaniSource: Malawi Law Journal 3, pp 7 –25 (2009)More Less
This article looks at the Southern African Development Community (SADC) reforms in financial services regulation, in particular, the Finance and Investment Protocol (FIP) and how they have impacted on Malawi's financial services regulatory reforms. It concludes that, although Malawian reforms in some way incorporate some aspects of the FIP, they have largely been developed independently of the FIP as a harmonising framework. On the FIP, the article concludes that, although it is a laudable development, it suffers from institutional weaknesses that threaten its efficacy as a vehicle for the integration of financial services in the region. It sets out goals that are too ambitious to be achieved within its stated time frame. Whilst welcoming the proposed reforms in Malawi, the article concludes that for a large part, the reforms do not introduce major changes to overthrow the status quo and suggests a formula for strengthening the regulation of financial services that would enhance the safety and soundness of banks and financial institutions in the country.
Author Chikosa Mozesi SilungweSource: Malawi Law Journal 3, pp 26 –54 (2009)More Less
Since 1996 Malawi has embarked on a new cycle of land reform. The ongoing land reform takes place in the context of a 'new wave' in development discourse where 'development' is re-conceptualised through a supposedly decentred focus on economic growth. The 'new donor consensus' is that land reform must be 'more human-centred' and foster 'pro-poor economic growth.' It is in this context that Malawi adopted a new National Land Policy in 2002. This policy is meant to guide the country's land reform and contribute to sustained economic growth. However, the new policy and the envisaged land law reform will not resolve the land question in Malawi mainly because they both ignore the country's history and social context, mistake land reform for land law reform, and place too much premium on turning rural dwellers into entrepreneurs.
Author Emily MakutaSource: Malawi Law Journal 3, pp 55 –69 (2009)More Less
This article examines the importance of corporate governance for state-owned industries. It argues that directors' accountability is the basis for ensuring the success of any corporation. It singles out state-owned industries because of the challenges faced by these industries in separating ownership and control and in defining their objectives, the economic significance of state-owned industries in developing economies and the far-reaching effects of any failures of such industries on the general public. As a template for analysis, the article adopts the governance principles outlined in the Commonwealth Association for Corporate Governance (CACG) Guidelines. Of all principles of good corporate governance, this article employs the principle of accountability as its main analytical tool because it supports the very basis for which legal personalities in the form of companies or corporations were created. It is recommended that measures should be put in place to ensure the accountability of those entrusted with the control and management of state-owned enterprises. Such measures should include legislation and the reduction of shareholder involvement in the day-to-day functions of these enterprises.
Author Msaiwale ChigawaSource: Malawi Law Journal 3, pp 70 –86 (2009)More Less
The death penalty is relevant to human rights because it affects a person's right to life and the right not to be subjected to cruel punishment. Almost all the main instruments on human rights guarantee these rights. In view of the importance of these rights, some international instruments have expressly called upon states to abolish capital punishment, or at least impose stringent conditions on its use. The Malawian Constitution and criminal laws still recognise the death penalty, including mandatory death penalty. This penalty can be imposed for such offences as murder, rape, treason, and armed robbery. It is argued that these offences will normally not merit the imposition of this penalty. Fortunately, the Constitutional Court has recently held in the Kafantayeni case that this penalty cannot be imposed compulsorily by the courts. Courts have discretion in sentencing and can impose this sentence only where the aggravating circumstances are extreme. Although Malawians are still hesitant not to abolish this penalty once and for all, this judgment, and the fact that no executions have taken place since 1992, make it unnecessary to still keep this punishment on the statute books.
The admissibility of cases before the African Court on Human and People's Rights : who should do what?Author Solomon T. EbobrahSource: Malawi Law Journal 3, pp 87 –113 (2009)More Less
The inauguration of the African Court on Human and Peoples' Rights in 2006 heralded a new phase in trans-national judicial implementation of human rights in Africa, but it also brought new legal challenges with it. An important aspect of the Court's procedure that is likely to pose a primary challenge for stakeholders is the question of admissibility before the Court which appears to have been complicated by the uncertain relation between the Court and the African Commission. This article argues that there are gaps in the rules for the determination of admissibility before the Court. More crucially, the emerging admissibility regime undermines the relevance of the admissibility procedure of the African Commission. To ensure consistency between the two organs, more weight should be given to the uncontested admissibility decisions of the African Commission.
Author Nonthandazo NtlamaSource: Malawi Law Journal 3, pp 117 –132 (2009)More Less
Interpreting the common law in accordance with the principles and values of the Bill of Rights is fundamental to the achievement of gender equality in South Africa. In particular, the development of sound principles of non-discrimination is crucial for South Africa as it recovers from its history of inequalities and discrimination. This article critiques the majority opinion of the South African Constitutional Court in Masiya. It argues that by confining the common law definition of rape to women, the majority view compromised the right to gender equality and undermined the foundational values and principles of the Constitution. This article also highlights the limits of the differentiation / disadvantage paradigm, which has become the main analytical framework for the right to equality, as a strategy for the advancement of gender equality.
Execution by hanging not torture or cruel punishment? Attorney General v Susan Kigula & Others : notes and commentsAuthor Jamil Ddamulira MujuziSource: Malawi Law Journal 3, pp 133 –146 (2009)More Less
In a recent case of Attorney General v Susan Kigula & Others, the Supreme Court of Uganda upheld the decision of the Constitutional Court holding that, although the Constitution of Uganda expressly endorses the death penalty in certain criminal cases, the mandatory imposition of this penalty is unconstitutional. The Supreme Court also upheld the lower court's decision that keeping a prisoner on death row for more than three years after the final confirmation of the sentence of death amounts to cruel and inhuman treatment. This case is significant because it adds weight to a growing number of decisions on the continent outlawing mandatory capital punishment. However, in the same case, the Supreme Court (Egonda-Ntende Ag JSC dissenting) also held that hanging as a method of executing the death sentence does not amount to torture, cruel, inhuman or degrading punishment under article 24 of the Constitution of Uganda. This article takes issue with this aspect of the Supreme Court's decision.
Author Mwiza Jo NkhataSource: Malawi Law Journal 3, pp 149 –152 (2009)More Less
At first glance, the first part of the title of Englund's book may appear to be heresy. For how can freedom, with all its liberative attributes, also hold prisoners? It is the second part of the title which essentially identifies the focus of the book - human rights and the African poor. Although most of the field research for the book was conducted in Malawi, its conclusions are equally applicable to the poor across the length and breadth of Africa.