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Malawi Law Journal

Publisher:
Sabinet African Journals
Publication date:
2021-07-19
ISBN:
1996-7675

Description:

The MLJ is a peer reviewed academic journal that publishes cutting edge, original and previously unpublished work. It accepts articles that explore the interface, tension and congruence between law, human rights, democracy, and development in Malawi and other African countries. Articles of a comparative nature, which are locally relevant, and those dealing with current legal issues of regional importance are also considered.

Issue Number

Latest documents

  • Editorial

    This volume comes out way behind schedule for which we profusely apologise. Over the past two years, we have faced a number of challenges, the most serious being the end of our funding relationship with the Open Society Initiative for Southern Africa (OSISA). We are very grateful for the support we received from OSISA between 2007 and 2012.

  • Courts, constitutions and interpretation in Africa : a focused inquiry into comparative constitutional interpretation in Ghana and Nigeria

    After military rule in Ghana and Nigeria, the decision was taken to return the countries to constitutional democracy. The constitutions that were promulgated in fulfilment of this objective, one may say, sought to embody or represent the 'spirit' of the people as reflected in their respective political and constitutional experiences. It would therefore be reasonable that the courts interpret these in a manner that best reflects the supreme interests of the people. But there are various theories of constitutional interpretation such as the positivist, purposive, ethical, originalist, non-originalist, literalist and mechanical brands of interpretation. Admittedly and as a matter of principle, there are good reasons for a panel of judges to follow one or more of these styles in interpreting a constitution. But the choice should not be made arbitrarily. The political as well as the constitutional experiences of the people should be the basic denominator for any preferred theory of constitutional interpretation for a country. This article attempts a discourse on the positivist and non-positivist tacks of interpreting a constitution, especially by the courts in Ghana and Nigeria. Primarily, it takes the position that judicial attempts in these two countries to conceive the constitution as 'law' are better appreciated if a non-positivist style of constitutional interpretation is adopted. Transiting from military dictatorship and its attendant violation of human rights, and the problem of exclusion in the constitution making process in these two countries, it is palpably dangerous to rely on the literal interpretation of the Constitution.

  • Questioning the adequacy of the regulatory regime for nanotechnology in Malawi

    Nanotechnology exploits unique physico-chemical properties that emerge at the nanoscale to improve the properties of materials and products. Despite the great promise they herald, there are concerns over risks posed by nanotechnology, mainly as regarding worker and consumer safety and the environment. The aim of this article is to examine the adequacy of the legislation, policies and regulations governing nanomaterials. The Consumer Protection Act places a duty on the government to protect consumers and requires traders of consumer goods to publish safety instructions and warnings. However, the Malawian chemical regulatory regime does not adequately address potential risks from nanotechnology although it has some provisions that can be used to manage nanotechnology. This article argues that Malawi should introduce a specific policy on nanotechnology. This may be achieved incrementally by implementing a similar approach as that of the European Union by adapting the existing laws so that they are capable of addressing the problems raised by nanomaterials. Crucial in adequately regulating these materials is the need for the Pharmacy and Poisons Board and the Pesticide Control Board to set up criteria that may be used to analyze nanoproducts. Labeling is already a requirement for prepacked foods, medicines and pesticides. There is a need to request that the word 'nano' should appear on the labels of nanomaterials and products such as nanomedicines. Furthermore, it is the duty of every employer to ensure the safety, health and welfare of all its employees, including conducting risk assessment and management of nanotechnology used at the workplace. As a precaution, the Ministries responsible for the environment and occupational health should consider nanomaterials as hazardous; while the Malawi Bureau of Standards should regulate nanomaterials in consumer products such as sunscreens.

  • The judicial system of Ethiopia : from 'empire' and 'military junta' to 'federal democratic republic'

    Ethiopia in her journey from imperial to federal democratic republic polity has witnessed different judicial systems, influenced by the prevalent strands of political philosophy and ideology at specific times. This article not only traces the impact of these developments on the judicial system of Ethiopia but also highlights the defects in the structural and functional facets that have persisted in that system.

  • Africa and the international community's use of military force as a means of protecting civilians : lessons from Libya

    The development and protection of human rights has gained momentum since the end of the Second World War. Continental, regional and sub-regional bodies have been formed all in the name of complementing the United Nations (UN) in preserving peace and protecting human rights. This article discusses the Libyan uprising and the lessons Africa should derive from the application of the principle of the responsibility to protect to solve similar crises. In conflict situations, there has to be a balance between maintaining peace and order and allowing citizens to express their dissatisfaction with governing authorities. With that in mind, the African Union must play an active role in protecting civilians and constitutionally elected governments and this can be achieved through strengthening the institutions that are tasked with maintaining international peace and protecting human rights.

  • The role of local council courts and traditional institutions in resolving land disputes in post-conflict northern Uganda

    As a result of factors related to over two decades of armed conflict in northern Uganda, land disputes in the region have sky-rocketed since 2010. Due to the questionable legitimacy and inaccessibility of state courts, many people often resort to lower level institutions - Local Council Courts (LCCs) and Traditional Institutions (TIs) - for land dispute resolution. Using interview data and examples from the field, this article highlights the human rights shortfalls in the operation of LCCs and TIs and draws attention to the imperfect environment in which they operate. Despite the important role they purport to play in facilitating access to justice, they receive insufficient support from the state and are not properly regulated. For initiatives that seek to enhance access to justice by using informal justice mechanisms to succeed, they need to be accompanied by efforts to improve the environment in which they operate.

  • Peeping at Malawi's tobacco industry with an anti-trust lens : are there thieves at the dinner table?

    This article critically analyses the structure and conduct of business in the tobacco industry in Malawi from a competition law point of view. The tobacco industry in Malawi is an old one dating back to colonial days, but until fairly recently, Malawi had no law regulating competition and fair trading. Hence the fight against anti-competitive practices in the industry did not have the full backing of the law. In light of the now operational Competition and Fair Trading Act as well as the international jurisprudence on the subject, this article focuses on one aspect of competition law called cartels and analyses whether traits of cartel behaviour are prevalent in the tobacco industry in Malawi. It is hoped that the points that are raised in this article will spur the Competition Commission into action to look into anti-competitive practices in the industry, more especially the cartels.

  • Social security and poverty alleviation in Malawi : towards the recognition of umunthu as a constitutional principle

    Poverty is deep, widespread and severe in Malawi. 65.3 percent of the population is poor, representing 6.3 million people with 28.2 percent living in dire poverty and women constituting 52 percent of the poor. In this context, the importance of social security cannot be overemphasised. For most poor people, their survival depends on a mixture of plural social security systems which provide varying degrees of access. Within this context, the recognition of social security as a right and the availability of legal mechanisms for claiming such a right have formed an essential part of poverty alleviation measures. However, much as human rights principles have proven critical and contributed to increased access to social security for the poor, this article argues that, in the context of Malawi, there is a need to go beyond the human rights approach to social security to embracing 'umunthu' as a foundational principle. An analysis of poor people's lived realities and articulations of survival mechanisms shows that 'umunthu' is an important local value which could contribute to and facilitate the empowerment of the poor in accessing social security and therefore alleviating poverty, and probably needs to be formally and explicitly recognised not only as a core value in poverty alleviation efforts but, more importantly, also as a constitutional principle.

  • The end of securocracy : the future of security sector governance in Malawi

    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.

  • Editorial

    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').

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