Justiciability of Socio-Economic Rights Under the Constitution of Malawi: Unbundling the Right to Development

Abstract

Most governments in sub-Saharan Africa have for long steered away from giving legal force to socio-economic rights, even though political and civil rights have had due recognition for some time. The main reason is that socio-economic rights are polycentric, meaning their justiciability has resource implications which most governments cannot fulfil in a short space of time. There has been a shift though, since South Africa enacted its Constitution after 1994, ushering in a new period where socio-economic rights not only became recognised but they were also given legal force, albeit with limitations. Malawi followed suit and enacted a new Constitution in 1994 which was unlike the earlier ones that did not recognise socio-economic rights. The only anomaly is that the Constitution does not put all socio-economic rights under the Bill of Rights, meaning that even though some of these rights now have legal force, others such as the right to health do not. These were drafted as principles of national policy, which are just guidelines referred to when the government is making policy. There is a redeeming factor though, which is the right to development. This article contends that all the socio-economic rights that are recognised as principles of national policy do have legal force under the right to development. Even though the right to development is not qualified, the social rights under it are justiciable and it is up to the courts to give them the correct interpretation.