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Criminal Justice Malawi Justice Sector and the Rule of Law A review by AfriMAP and Open Society Initiative for Southern Africa Written and researched by Professor Fidelis Edge Kanyongolo 01&/40$*&5:'06/%"5*0/ Copyright © 2006 by the Open Society Initiative for Southern Africa. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form, or by any means, without the prior permission of the publisher. Published by: Open Society Initiative for Southern Africa ISBN: 1-920051-32-7 For more information, contact: AfriMAP Open Society Foundation 5th Floor, Cambridge House 100 Cambridge Grove London, W6 OLE, United Kingdom www.afrimap.org Open Society Initiative for Southern Africa 12th Floor, Braamfontein Centre 23 Jorissen Street South Africa www.osisa.org Layout and printing by: Compress, South Africa Cover Graphic by Kobwani Kamiyala, Malawi 9edj[dji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¹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¹OBODJBMNBOBHFNFOU # $PVSUBENJOJTUSBUJPO $ "WBJMBCJMJUZPGMFHJTMBUJPOBOEKVSJTQSVEFODF *OEFQFOEFODFPGKVEHFTBOEMBXZFST " +VEHFT # 1SPTFDVUJPOTFSWJDFT $ -BXZFST $SJNJOBMKVTUJDF " 1SPUFDUJPOGSPNDSJNF # 1PMJDJOH $ 'BJSUSJBM % "QQSPQSJBUFSFNFEJFTBOETFOUFODJOH & 1SJTPOT "DDFTTUPKVTUJDF " ,OPXMFEHFPGSJHIUT # 1IZTJDBMBDDFTT $ 'JOBODJBMBDDFTT % 3JHIUUPBQQFBSKVSJTEJDUJPOBMSFTUSJDUJPOT & 3FBTPOBCMFEFMBZ ' 3FTQFDUGPSDPVSUPSEFST (.FDIBOJTNTUPBTTFSUSJHIUTPVUTJEFUIFDPVSUTZTUFN )5SBEJUJPOBMBOEPUIFSOPOTUBUFKVTUJDFTZTUFNT %FWFMPQNFOUQBSUOFST " %FWFMPQNFOUBTTJTUBODFBOETUSBUFHZJOUIFKVTUJDFTFDUPS # %POPSQSPKFDUTBOEIVNBOSFTPVSDFT $ %FWFMPQNFOUBTTJTUBODFBOEQSPNPUJPOPGSFTQFDUGPSIVNBOSJHIUT % "DDFTTUPJOGPSNBUJPOBCPVUEFWFMPQNFOUBTTJTUBODFUPUIFKVTUJDFTFDUPS "OOFYFT "OOFY" *OUFSOBUJPOBMBHSFFNFOUT "OOFY# %POPSBTTJTUBODF "OOFY$ #JCMJPHSBQIZ "OOFY% -JTUPGQFSTPOTJOUFSWJFXFE B_ije\YWi[ijkZ_[i Judicial review of the constitutionality of legislation 50 Government disobedience of a court order 61 The challenges of accessing copies of High Court judgments 98 Non-governmental legal assistance 113 Access to justice 145 Donor assistance to the justice sector 160 WJ."-"8*+645*$&4&$503"/%5)&36-&0'-"8 B_ije\WYhedoci ACB Anti-Corruption Bureau ADF African Development Fund CARER Centre for Advice and Research and Education in Rights CIDA Canadian International Development Agency CILIC Civil Liberties Committee DFID Department for International Development (UK) DPP director of public prosecutions EU European Union GTZ Deutsche Gesellschaft für Technische Zusammenarbeit IBA International Bar Association IMF International Monetary Fund NCSJ National Council for Safety and Justice NORAD Norwegian Agency for Development MASSAJ Malawi Safety, Security and Access to Justice MEJN Malawi Economic Justice Network NGO non-governmental organisation SADC Southern African Development Community SAW Society for the Advancement of Women SWAp sector-wide approach UNDP United Nations Development Programme UNICEF United Nation’s Children’s Fund USAID United States Agency for International Development WLSA Women and Law in Southern Africa Research and Education Trust ."-"8*+645*$&4&$503"/%5)&36-&0'-"8WJJ 7Yademb[Z][c[dji Numerous individuals and research organisations made valuable contributions to the prepara- tion and finalisation of this report. Foremost among these is Professor Fidelis Edge Kanyongolo, the author of this report, without whom this work would not have been possible. Flossie Gomile-Chidyaonga, the Afrimap coordinator for Malawi, provided constant guid- ance and logistical support through the research process. Chrispine Sibande provided valuable research assistance to the author. Necton Mhura, Dean of the Faculty of Law at the University of Malawi, and other faculty members provided the research team with kind use of computer facilities and office space. Tawanda Mutasah, OSISA Executive Director, and OSISA staff provided guidance, leader- ship and support for the consultative process that accompanied the research and report writing. Ozias Tungwarara, Pascal Kambale, and Bronwen Manby of AfriMAP led the editing process and made valuable contributions on substance and style. Smita Choraria of AfriMAP, Jonas Pohlmann and Louise Griffin assisted with supplemen- tary research and meticulous copy editing. Ari Korpivaara and his team at the Open Society Institute also made a valuable contribution to the copy editing and proofing process. Numerous key personnel in various institutions in the justice sector gave up their time to be interviewed, often at very short notice. Sincere appreciation is extended to all involved. WJJJ."-"8*+645*$&4&$503"/%5)&36-&0'-"8 Fh[\WY[ The Africa Governance Monitoring and Advocacy Project (AfriMAP) of the Open Society Foundation was established in 2004 to monitor observance of standards relating to human rights, the rule of law and accountable government, by both African states and their development partners. African states have undertaken increasing commitments to good governance since the African Union replaced the Organisation of African Unity in 2002. Among these commitments are the provisions of the Constitutive Act of the African Union, in which member states agree to promote human rights, democratic principles and institutions, popular participation and good governance. Other newly adopted documents include the New Partnership for Africa’s Development (NEPAD) and the African Peer Review Mechanism (APRM), as well as the Convention on Preventing and Combating Corruption. AfriMAP’s research is intended to facili- tate and promote respect for these commitments by highlighting key issues and by providing a platform for national civil society organisations to engage in their own monitoring efforts. AfriMAP’s methodology is based on standardised reporting frameworks that link respect for good governance and human rights to development that benefits poor people. Through a process of expert consultation, AfriMAP has developed reporting frameworks in three thematic areas: the justice sector and the rule of law, political participation, and the delivery of public services. The questionnaires that result, among them the questionnaire on the justice sector and the rule of law that guided this report, are available at the AfriMAP website: www.afrimap.org. The reports are elaborated by experts from the countries concerned, in close collaboration with the Open Society Institute’s network of foundations in Africa and AfriMAP’s own staff. Drafts of this report were reviewed by a range of experts, and their comments and criticisms are reflected in the final content. These reports are intended to form a resource both for activists in the country concerned and for others working across Africa to improve respect for human rights and democratic values. ."-"8*+645*$&4&$503"/%5)&36-&0'-"8JY <eh[mehZ The 1994 democratic Constitution that represented Malawi’s decisive break with Banda’s dicta- torial regime ushered in a new set of human rights and democratic standards, aspirations and values. This included a commitment to ensure that Malawi complied with African and interna- tional norms and standards on human rights, the rule of law and democratic governance. To what extent has Malawi lived up to this commitment, and what could be done by Malawian state institutions, civil society entities, and development partners to ensure that these intentions are realised? This report, Malawi: Justice Sector and the Rule of Law, seeks to aid and focus the efforts of various players committed to Malawi’s success in the area of justice delivery and rule of law observance. It is also a resource for African institutions seeking to enable Malawi to meet its commitments under the Constitutive Act of the African Union, the New Partnership
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