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Malawi Law Journal
Malawi Law Journal: Volume 7


ARTICLES

QUESTIONING THE ADEQUACY OF THE REGULATORY REGIME FOR NANOTECHNOLOGY IN MALAWI
   Wells Utembe & Mary Gulumian

Abstract >>
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.

PEEPING AT MALAWI'S TOBACCO INDUSTRY WITH AN ANTI-TRUST LENS: ARE THERE THIEVES AT THE DINNER TABLE?
   Mike Chinoko

Abstract >>
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.

COURTS, CONSTITUTIONS AND INTERPRETATION IN AFRICA: A FOCUSED INQUIRY INTO COMPARATIVE CONSTITUTIONAL INTERPRETATION IN GHANA AND NIGERIA
   Atupare P Atudiwe

Abstract >>
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.

THE JUDICIAL SYSTEM OF ETHIOPIA: FROM ‘EMPIRE’ AND ‘MILITARY JUNTA’ TO ‘FEDERAL DEMOCRATIC REPUBLIC
   KI Vibhute

Abstract >>
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.

THE ROLE OF LOCAL COUNCIL COURTS AND TRADITIONAL INSTITUTIONS IN RESOLVING LAND DISPUTES IN POST-CONFLICT NORTHERN UGANDA
   Rose Nakayi 

Abstract >>
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.

AFRICA AND THE INTERNATIONAL COMMUNITY’S USE OF MILITARY FORCE AS A MEANS OF PROTECTING CIVILIANS: LESSONS FROM LIBYA
   Swikani Ncube 

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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.
Volume 7
 
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