Malawi Law Journal
Malawi Law Journal: Vol 6 Issue 2


Section 65 of the Malawian Constitution: The Role of the Speaker, 2005-2009
   Louis J Chimango

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This article reflects on the experience of the implementation of section 65 of the Malawian Constitution in the period between 2005 and 2009, focusing especially on the role of the office of the Speaker of the National Assembly. After briefly tracing the history of the office, it explores the justification for anti-floor-crossing law, and then proceeds to discuss the actual contestations concerning the application of this law during the period in question. The latter will entail an examination of who the disputants were and the political or constitutional interests they sought to advance and protect. Disputes around section 65, as this period amply demonstrated, provide a source of uncertainty, instability and political tension in the country, with a consequential negative impact not only on the functioning of the legislature but also on the economy. It is argued that as long as section 65 issues remain unresolved, history will repeat itself. For this law to be respected and implemented in an impartial and open manner, it is essential that the National Assembly is guaranteed its autonomy. This includes autonomy over its sessions, and hence removing or limiting the presidential prerogative to prologue Parliament, and the autonomy of the office of the Speaker. Where the government has an interest in a matter before the Speaker or the courts to which the Speaker is a party, it is not possible, as happened in this case, for the Attorney General to act for the Speaker effectively and in an impartial manner. Lastly, this article discusses the mediation effort that was attempted to resolve the impasse around section 65 and draws some lessons from it for the future.

Floor Crossing and the Role of the Courts in Malawi and South Africa
   Lia Nijzink

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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.

Social Security and Poverty Alleviation in Malawi: Towards the Recognition of Umunthu as a Constitutional Principle
   Ngeyi Ruth Kanyongolo

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Poverty is deep, widespread and severe in Malawi. 65.3 per cent of the population is poor, representing 6.3 million people with 28.2 per cent living in dire poverty and women constituting 52 per cent 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 Chinsinga-Gate Affair: A Not-So-Subtle Threat to Academic Freedom in Malawi
   Mwiza Jo Nkhata

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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.

Judicial Accountability in a Democratic Malawi: A Critical Assessment
   Janet Liabunya 

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The adoption of the Constitution of the Republic of Malawi (‘Constitution’) in 1994 heralded a fundamental change in the mode of governance from the one-party political system to the multiparty democratic system. The new order promised a system of governance that focuses on public participation, adherence to the rule of law, the protection of human rights, the separation of powers between the different arms of government, and the accountability and transparency of those in authority. In order to deliver on this promise, a judicial system that is both independent and accountable is required. While there is a mechanism in the Constitution for ensuring that judicial independence is preserved, the notion of judicial accountability has received lesser attention. The primary aim of this article is to trace the history of judicial independence and accountability in Malawi, discuss the link between these two concepts, and reflect on the extent to which judicial accountability is legally required and has been enforced in Malawi. It is argued that Malawi lacks a robust mechanism of enforcing judicial accountability, which has in turn adversely affected the ability of the judiciary to discharge its duties under the Constitution effectively. An appropriate balance must be struck between safeguarding the independence of the judiciary and ensuring that the judiciary is accountable for the manner in which it performs its constitutional functions. To this end, judicial performance evaluation is proposed as a means of ensuring that the judiciary is held publicly accountable for its functions.

The Constitution and the Regulation of Press Freedom in Malawi
   Innocent Mtukulo Mphote and Chisomo Nyemba 

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Section 46 of the Penal Code, which in essence gives the Minister the power to ban publications considered to be contrary to the public interest, was enacted during the colonial era. This provision was amended in 2010 during the Bingu wa Mutharika regime. Basically, this amendment required the Minister to exercise his or her discretion reasonably. As soon as Mrs Joyce Banda came to power in April 2012, the section was repealed. This article addresses the question whether the repeal of this law will correct the mischief for which the repeal was intended, namely, preventing the infringement of the right to press freedom by reducing the discretion of the Minister to control the press. Many other provisions in our statutes still remain which either expressly or impliedly restrict the right to press freedom. Not only that, most of those provisions give too much power to the Minister to regulate press freedom. This suggests that the repeal of section 46 of the Penal Code will not guarantee full respect for the right to press freedom. If the government is serious about the problem of properly regulating press freedom, it must take a holistic approach: it must review all the provisions discussed in this article and make appropriate amendments or repeal them where necessary.
Issue 6.2
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