Your World of Legal Intelligence
 South Africa | 1-800-335-6202

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The MLJ is a peer reviewed academic journal that publishes cutting edge, original and previously unpublished work.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

  • 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.

  • 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.

  • 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 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.

  • The search for identity and legitimacy : the evolution of Malawi's Constitution

    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.

  • The Chinsinga-gate affair : a not-so-subtle threat to academic freedom in Malawi

    In February 2011, the Inspector General of the Malawi Police Service 'summoned' and 'interrogated' Associate Professor Blessings Chinsinga of the Department of Political and Administrative Studies at Chancellor College, the University of Malawi, in relation to comments he had made in one of his lectures. News of Chinsinga's 'summoning' sparked a protracted dispute between lecturers, who viewed the 'summoning' as an infringement of academic freedom, on the one hand, and the University authorities and the government, on the other hand. This dispute eventually led to the closure of Chancellor College, the largest constituent college of the University of Malawi, for almost nine months, bringing into sharp focus the state of academic freedom in Malawi. This article conducts a critical appraisal of the state of academic freedom in Malawi, particularly in the post-1994 period taking into full account the events that surrounded the Chinsinga-gate affair. The aim of this exposition is to deduce some principles that underlie claims to academic freedom and to draw some lessons for the protection of academic freedom in Malawi and beyond.

  • Floor crossing and the role of the courts in Malawi and South Africa

    When Members of Parliament take up membership of a political party other than the party that got them elected, the lines of vertical and horizontal accountability that are the cornerstones of representative democracy are affected. Therefore, many countries in sub-Saharan Africa have explicitly prohibited or restricted floor crossing in their constitutions. This article looks at two countries in which the constitutional provisions regarding floor crossing and their implementation have been brought before the highest courts: Malawi and South Africa. Elsewhere, I have made this comparison with the aim of drawing conclusions about how floor crossing affects vertical accountability - the relationship between the electorate and elected representatives. In this article, I will focus on horizontal accountability and discuss the decisions of the courts on floor crossing in both countries. After comparing the legal framework of floor crossing in South Africa and Malawi, the role of the courts is discussed and a number of interesting similarities and differences between the two countries are identified. This discussion highlights the often difficult position of the courts in disputes of a political nature and draws our attention to the ineffectiveness of constitutional provisions on floor crossing.

Featured documents

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT