The end of dictatorial rule in Malawi and the adoption of a new, democratic constitution in 1994 transformed the institutional and legal framework of the country. To what extent has Malawi met its commitment made then to comply with African and international norms and standards on human rights, the rule of law and democratic governance? This Open Society Initiative for Southern Africa (OSISA) report argues that while considerable and laudable progress has been made, much still remains to be done.
Breaking with the one-party system established in Malawi in 1966, the 1994 Constitution included a comprehensive bill of rights and created an environment conducive to ratification and domestication of the most important international human rights treaties. The Constitution provided for a comprehensive process of review of domestic laws. Yet early reviews undertaken by Parliament immediately after the adoption of the Constitution have not been followed through and no consistent effort on domestication of international obligations has been pursued. Furthermore, attempts in 2006 to impeach the president and remove him from office have focused attention upon the issue of respect for the law.
Overall, however, there has been considerable and laudable progress in the justice sector since 1994:
- The legislative process in Parliament has generally respected international and constitutional standards. While government action has respected the Constitution and legislation in the area of economic management, political expediency has often resulted in violations of the law in other areas.
- Management of the justice sector has dramatically improved over the last ten years. For example, measures have been taken to strengthen autonomous administration of the courts, although executive control of the judiciary’s budget means that this is still limited.
- Significant progress has been made in reforming the criminal justice system. Police officers, for example, have undergone extensive training in human rights and public order management.
- Despite notable efforts in better policing, crime has been steadily increasing since 2001, driven principally by the country’s high level of poverty.
- The majority of the population have no access to formal justice; this is limited to the wealthy elite.
- Over the past years, donors have improved their coordination efforts, as has government. However, the impact of these efforts is limited by the absence of an effective, sectoral, strategic plan.
- to ensure that all statutory and customary laws of Malawi are aligned to the Constitution and to international law;
- to match the respect shown for internationally agreed economic management strictures with an equal respect for the law in all other matters, including political;
- to strengthen the prosecution service in the light of steadily rising crime levels;
- for various further reforms in the criminal justice system, including regard to legal guarantees of fair trial, and in terms of prison conditions;
- to improve access to justice for ordinary citizens, including the urgent call for a legal framework to govern customary forums through which the vast majority of Malawians access justice; and
- for a sector-wide approach for the coordination of development assistance in the justice sector.
