Some Reflections on Administrative Justice in Malawi

• Jurisdiction: South Africa
• Published date: 15 August 2019
• Date: 15 August 2019
• Author: Christopher Forsyth
• Citation: 2006 Acta Juridica 389
• Pages: 389-404

Some Ref‌lections on Administrative Justice

in Malawi

CHRISTOPHER FORSYTH*

University of Cambridge

and

STEVE D MATENJE, S.C.**

Ministry of Justice, Malawi

I INTRODUCTION

A signif‌icant chapter in the development of administrative justice in

Malawi is recounted in this article. And one immediate question that will

be asked is ‘Why Malawi?’ What is it about Malawi that renders

administrative justice there of more interest than in any number of other

Commonwealth states? The answer to that question lies in the steps

which the Government of Malawi has taken to enhance the quality of

administrative justice in that country. The Government has found that

the practical task of administration, while at the same time respecting the

rule of law and human rights, necessitates a governmental concern with

the quality of administrative justice.

And for this reason the Government of Malawi has taken a lead in the

training of senior civil servants (Permanent Secretaries and other civil

servants at Director and Deputy Director levels) in the principles of

administrative law and in the production of a Manual of Administrative Law

in Malawi – A Guide for Ministers and Public Servants.

1

The impact of these

developments on the quality of decision-making in Malawi is believed on

reasonable grounds to have been benef‌icial.

2

As far as we know no other state in the region has attempted this or

trained its senior civil servants in the principles of administrative law in

the same way or in the same depth. So it is a tale that needs to be told.

Moreover, consideration of these developments may prove useful to

other similarly situated Commonwealth states wrestling with the

problems of good government. Hence this paper.

* Professor of Public Law and Private International Law, University of Cambridge;

Extraordinary Professor of Law, University of Stellenbosch.

** Solicitor General and Secretary for Justice, Ministry of Justice, Malawi.

1

Government Printer, Zomba, 2002. This book was written during 2002 by Christopher

Forsyth and Steve Matenje. It is believed to be the f‌irst substantial legal text to be produced in

Malawi for public servants. Extracts from the Manual are printed in the Appendix to give the

reader a taste of it.

2

The impact of the Manual is discussed below. The impact of such developments is, of

course, very diff‌icult to measure objectively.

389

2006 Acta Juridica 389

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II A BRIEF INTRODUCTION TO MALAWI AND ITS

ADMINISTRATION

It is appropriate to start with a – necessarily somewhat schematic –

description of Malawi.

3

Malawi is a Central African Republic with a

population of about 11 million people in 2003. It is a member of the

Commonwealth with a legal system based upon English law (although its

1994 Constitution is strongly inf‌luenced by South Africa’s Interim

Constitution). The suppression of the slave trade was prominent in the

establishment of the British Protectorate in the late nineteenth century

and David Livingstone is still revered. But the country has few mineral

resources and the major cash crops are still tobacco and tea. A massive

fresh water lake, Lake Malawi, which holds the promise of a f‌lourishing

tourist industry, dominates its geography. It is a secular State whose

population is largely Christian with a signif‌icant Muslim minority. The

country is very poor with a per capita income of only $160 per annum. In

addition the country is ravaged by AIDS and often threatened by food

shortages as well as instability elsewhere in the region. So the country

faces huge challenges.

Malawi achieved independence from Britain in 1964 and for three

decades afterwards was ruled by the president-for-life, Dr Hastings

Kamuzu Banda. Criticism of the President and his rule was not tolerated

and was dangerous. By May 1992, the persistent violation of the rule of

law and human rights led to a decision by Malawi’s international

development partners to suspend aid to Malawi and to support positive

action by the people to strengthen the rule of law, human rights and

democratic development. A combination of internal and international

pressure led to a peaceful multi-party election in May, 1994, which

brought to power the present Government.

Upon taking off‌ice, the Government committed itself, amongst many

other things, to the consolidation of the rule of law in public

administration in order to renew public conf‌idence in the Government.

This became inevitable because the new Malawi Constitution, enacted in

1994, entrenched democratic values and the rule of law as the basis for

the future government of the country. Since 1994 Parliamentary and

Presidential elections have been held regularly. The President elected in

1994, Dr Bakili Muluzi, was re-elected in 1999. Section 83(3) of the

Constitution provides that the President ‘may serve . . . a maximum of

two consecutive terms [of f‌ive years each]’. Thus at the end of his second

3

More facts about the country can be found at: http://news.bbc.co.uk/1/hi/world/africa/

country_prof‌iles/1068913.stm (site visited 28 September 2005).

390 COMPARING ADMINISTRATIVE JUSTICE ACROSS THE COMMONWEALTH

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