INTRODUCTION A Using the Courts to Protect Vulnerable People: Perspectives from the Judiciary and Legal Profession in Botswana, Malawi, and Zambia NATIONAL ASSOCIATION REPUBLIC SOUTHERN AFRICA OF WOMEN JUDGES AND OF MALAWI LITIGATION CENTRE MAGISTRATES (Botswana) JUDICIARY Using the Courts to Protect Vulnerable People: Perspectives from the Judiciary and Legal Profession in Botswana, Malawi, and Zambia January 2015 Using the Courts to Protect Vulnerable People: Perspectives from the Judiciary and Legal Profession in Botswana, Malawi, and Zambia © 2014 Southern Africa Litigation Centre, Judiciary of Malawi, National Association of Women Judges and Magistrates of Botswana (NAWABO) ISBN 978-0-620-62999-7 (print) ISBN 978-0-620-63000-9 (e-book) Cover photograph: Courtesy of Herman Potgieter’s estate. About the Southern Africa Litigation Centre The Southern Africa Litigation Centre (SALC), established in 2005, aims to provide support to human rights and public-interest litigation initiatives undertaken by domestic lawyers in southern Africa. SALC supports these lawyers in a variety of ways, as appropriate, including providing legal research and drafting, training and mentoring, and monetary support. SALC works in Angola, Botswana, Democratic Republic of Congo, Lesotho, Malawi, Mozambique, Namibia, Swaziland, Zambia, and Zimbabwe. Acknowledgements This collection of papers is a culmination of discussions at the Judicial Colloquia on the Rights of Vulnerable Groups, which were held in Botswana, Malawi, and Zambia in February and March 2014. As such, this publication is a joint initiative by the Judiciary of Malawi, the National Association of Women Judges and Magistrates of Botswana, and SALC. We would like to thank all those who contributed to the colloquia and this publication. We are grateful to the authors who offered their valuable time, on short notice, to contribute papers. This book was edited by Anneke Meerkotter, a project lawyer at SALC and Priti Patel, SALC’s Deputy Director and HIV Programme Manager, with assistance from Belinda Liu, an intern at SALC. The report was reviewed by Nicole Fritz, SALC’s Director. The papers from Botswana, Malawi and Zambia were respectively reviewed by Justice Annah Mathiba, a judge in the Industrial Court of Botswana, Justice Andrew Nyirenda SC, a judge in the Supreme Court of Appeal of Malawi, and Dr Phillip Tahmindjis, co-Director of the International Bar Association’s Human Rights Institute and a trustee of SALC. Copy-editing services were provided by Dr David Barraclough and Juliet Gillies. Fact-checking was done by Belinda Liu and Evan Alston, interns at SALC. The report was designed by Limeblue. Southern Africa Litigation Centre Second Floor, President Place, 1 Hood Avenue, Rosebank, Johannesburg, South Africa, 2196 e-mail: [email protected], tel: +27 (0) 10 596 8538 http://www.southernafricalitigationcentre.org, twitter: @follow_SALC For hard copies of the report, please contact the Southern Africa Litigation Centre. Electronic copies of this report can be found at http://www.southernafricalitigationcentre.org Table of contents Foreword i Sanji Mmasenono Monageng, First Vice-President, International Criminal Court Introduction iii The Role of the Judiciary in Protecting the Rights of Vulnerable Groups The Role of the Judiciary in Protecting the Rights of Vulnerable Groups in Malawi 1 Andrew K.C. Nyirenda SC JA Judicial Activism and the Protection of the Rights of Vulnerable Groups in Malawi 10 Lovemore P. Chikopa SC JA The Role of the Judiciary and the Legal Profession in Protecting the Rights of 18 Vulnerable Groups in Botswana Dr Oagile B.K. Dingake J Judicial Decision-Making and Freedom of Expression in Zambia: 25 The Case of People v Paul Kasonkomona Sunday B. Nkonde SC Overcrowding and its Effects on the Health of Prisoners in Malawi: 32 A Role for the Malawian Courts? Kenan T. Manda J Realising the Full Potential of Civil and Political Rights for Marginalised 39 Populations in African Countries Priti Patel Accused’s Rights and Access to Prosecution Information in Subordinate 47 Courts in Zambia Sunday B. Nkonde SC and William Ngwira Examining the Constitutionality of Rogue and Vagabond Offences in Malawi 57 Chikosa Banda and Anneke Meerkotter Invoking International Law in Domestic Courts to Protect the Rights of Vulnerable Groups The Relevance of International Law in Judicial Decision-Making in Malawi 74 Dr Redson E. Kapindu J The Role of International Labour Standards in Decision-Making on the 85 Rights of Vulnerable Groups in Botswana Harold Ruhukya J International Law, Women’s Rights, and the Courts: A Zambian Perspective 94 Lillian Mushota Protecting the Rights of Persons with Disabilities: A View from Zambia 102 Wamundila Waliuya Realising the Right to Equality for Vulnerable Groups An Analysis of Malawi’s Constitution and Case Law on the Right to Equality 112 Kenyatta Nyirenda J The Ambit of Prohibited Grounds of Discrimination: Comparative Jurisprudence 123 on HIV Status and Sexual Orientation Mandala D. Mambulasa Resolving the Tension between Gender Equality and Culture: Comparative 132 Jurisprudence from South Africa and Botswana Chipo Mushota Nkhata and Felicity Kayumba Kalunga Lingering Inequality in Inheritance Law: The Child Born Out of Wedlock in Botswana 140 Elizabeth Macharia Mokobi Developing a Conceptual Framework against Discrimination on the 149 Basis of Gender Identity Dr Chiwoza Bandawe and Anneke Meerkotter i Foreword We live in a world where rights, enshrined in international human rights conventions and national constitutions, find little translation in reality – entombed in legal documents, they often never see the light of day. As judicial officers and lawyers, it is incumbent on us to understand and recognise the inequalities prevailing in our society and to promote remedies that protect and promote the rights and freedoms enshrined in our constitutions. In many cases, we are the custodians of citizens’ rights and the last bastion of hope for many. Various international human rights instruments and national constitutions recognise that certain groups, often defined as vulnerable, require protection. Such groups include women; children; persons with disabilities; older persons; refugees; internally displaced persons; persons belonging to national, ethnic, religious and linguistic minorities; migrant workers; persons living with HIV; and lesbian, gay, bisexual, and transgender persons. This list is not exhaustive and over time new groups are identified that require special attention if they are to realise their rights and receive equal treatment. This publication – a selection of papers presented at judicial colloquia held in Botswana, Zambia, and Malawi in February and March 2014 – has two main objectives. Firstly, it is intended to serve as a resource for judicial officers in southern Africa, when they are confronted with cases that concern human rights and, in particular, the rights of vulnerable groups. Secondly, it is intended to enrich discussion on the need for the development, in the region, of a constitutional jurisprudence which recognises the universality of human rights and the importance of courts in protecting the rights of the most vulnerable and marginalised within our societies. Highlighting this need, Lesetedi J stated in the recent Botswana Court of Appeal case of Ramantele v Mmusi and Others: It is well established that in interpreting provisions of the Constitution more particularly with regard to the fundamental rights the Court must adopt a generous and purposive approach in order to breathe life into the Constitution having regard to its liberal democratic values and (where necessary) with the aid of international instruments and conventions on human rights to which Botswana has subscribed.1 This publication examines that statement, exploring options and modalities, with different judges and lawyers providing valuable insight into what exactly it means to breathe life into a Constitution. Each of us plays a unique and important role in upholding the constitutions of our respective 1 CACGB-104-12, at para. 69. ii • USING THE COURTS TO PROTECT VULNERABLE PEOPLE countries and in securing well-functioning justice systems that protect the human rights of all. This publication prompts us to examine our existing jurisprudence and to develop our understanding of what different rights mean and how we might realise them in practice. Judge Sanji Mmasenono Monageng First Vice-President, International Criminal Court iii Introduction Vulnerable groups are generally understood to be people who are easily susceptible to discrimination, marginalisation, or criticism. These groups experience socio-economic and attitudinal barriers which hamper their ability to exercise their rights. In such cases, there is a need for protection by the state, including the courts, in order to avoid exploitation or harm. Various international human rights instruments and treaty bodies include in the definition of vulnerable groups women, children, persons with disabilities, the elderly, refugees, internally displaced persons, national minorities, migrant workers, persons living with HIV, and sexual minority groups. However, the extent to which courts have adopted the role of protecting the rights of vulnerable groups varies between different levels of courts and between countries. With this in mind, the Southern Africa Litigation Centre initiated judicial colloquia on the rights of vulnerable groups in Botswana, Malawi and Zambia in February and March 2014.