Law In Malawi Research Articles

The nullification of the 2019 presidentail election in Malawi. A Judicial Coup d’État?

In February 2020, the High Court of Malawi nullified the May 2019 presidential election and ordered a fresh election. This judgment was later confirmed by the Malawi Supreme Court of Appeal. These two judgments are monumental and unprecedented because this was only the second time a presidential election had been judicially nullified in Africa. The fresh presidential election also scored a first in Africa when it was won by an opposition candidate. These judgments carved new terrain for electoral law in Malawi and divided legal and political opinion. This paper offers a critical analysis of the two judgments. It focuses on the court’s treatment of the burden and standard of proof in electoral disputes; the interpretation of ‘majority’ to mean 50% + 1; and the effect of the nullification of the 2019 presidential election and consequential transitional issues. Overall, the paper concludes that while the outcome of the litigation garnered plaudits, the reasoning in the two judgments is not wholly persuasive.

A perspective on utilizing legal frameworks to obligate service providers to protect human rights in Malawi: A Case of the Mandatory Provision on Pro Bono Services under the Legal Education and Legal Practitioners Act, 2018

Malawi's Constitution of 1994 changed the law in a pro-human rights direction. It provides for safe guarding measures aimed at protecting human rights. Malawi also has progressive pro-human rights legislations which emulate provisions of international and regional human rights instruments. However, enforcement of legal frameworks remains a challenge, partly due to poverty hence a large percentage of the population is unable to meet legal costs; lack of legal literacy and distance hinders access justice. A culture of silence continues to perpetuate human rights violations, so too uncoordinated efforts by service providers in protecting human rights. The majority of legal practitioners practice commercial law hence over burdening the Legal Aid Bureau with under privileged clients, whose cases mostly border on human rights violations. This paper will look at the opportunities government has in utilizing the legal frameworks to obligate duty bearers to provide services that aim to promote human rights including access to justice for under privileged Malawians. Legal practitioners are now, under the Legal Education and Legal Practitioners Act of 2018, obligated to provide pro bono legal services in order to have their licenses renewed. This has seen a rise in the number of under privileged people, particularly women, able to access justice at various levels. This can also be attributed to human rights awareness done by the Human Rights Commission, human rights lawyers and civil society organizations. This paper will therefore examine the positive impact such an initiative has had in protecting human rights and upholding the rule of law in Malawi.

Running to stand still: reflections on the cashgate scandal heist in Malawi

Purpose In September, 2013 following a police tip, a government accounts clerk was found with huge sums of cash amounting to US$300,000 in his car, and a week later, Malawi’s Budget Director (Treasury Official) was fatally shot outside his home. These two incidents unravelled what would later be famously known as the “Cashgate Scandal” that leading to revelations of fraud amounting to US$32 million, an amount representing almost 1 per cent of Malawi’s annual GDP in merely six months. As a result, donors withdrew their annual 40 per cent budgetary support. A lot of people (almost 70) in both public and private sector found with both cash in local or foreign currency were arrested. An independent audit report by Baker Tilly, a British accountancy firm, revealed that the fraud and theft was with such sophistication that cheques were issued to private companies for services that had not been rendered to government. Those cheques were cashed, and money was distributed among several people. Those arrested were charged with offences ranging from corruption, abuse of office, theft, theft by public servant, tax evasion and money laundering. This paper aims to analyse the cashgate scandal. It explores the first conviction of these cashgate case series which also happens to be the first ever conviction on money laundering offence in Malawi. It further explores the law likely to apply to the cashgate scandal case series, the opportunities that have been lost and likely stifling implications on the future of the fight against corruption and money laundering offences in Malawi. All law enforcement actors such as the prosecution, defence and the courts have that duty to clarify and implement the common interests of Malawians, namely, the prescriptive purposes of the law in accordance with the expectations of an approximate process that guarantees attainment of human good, i.e. justice. Design/methodology/approach This paper presents the desk research of various journal articles and reports on money laundering in general and Malawi. Further, an analysis of the first money laundering conviction is presented. Findings Malawi is still struggling with enforcement of money laundering offences. Research limitations/implications There was no quantitative research involved. Further, being the first case for litigation and conviction, not much has come up on Malawi’s money laundering practice. Actually, this is likely to be the first article on money laundering and analysis of the cashgate heist. Social implications The paper serves as a learning process for future prosecutions. Originality/value The paper offers a new and novel approach to the fight against money laundering offences and organized criminality in Malawi. Before the Treza Senzani Judgment, Money Laundering Law in Malawi had never been tested before the Courts. Through an exegesis of the Malawi law as regards these offences, the paper adds value to the research and fight against money laundering. It further offers insights into legal interpretation and policy formulation that would enable law enforcement agencies in Malawi to succeed in the fight against such criminality.

Re Banda

410Relationship of international law and municipal law — Treaties — Convention on the Rights of the Child, 1989 — African Charter on the Rights and Welfare of the Child, 1990 — Malawi Adoption of Children Act 1949 — Interpretation — Inter-country adoption — Residency requirement in Section 3(5) of Act — Constitution of Malawi — Malawi’s obligations under Convention and Charter — Whether Court constitutionally obliged to uphold binding international law — Foreign case law — Best interest of child paramount — Whether Malawi law allowing for inter-country adoption — The law of Malawi

Custody Disputes Under African Customary Family Law in Malawi: Adaptability to Change?

Custody Disputes Under African Customary Family Law in Malawi: Adaptability to Change?

A strategic assessment of unsafe abortion in Malawi

As part of efforts to achieve Millennium Development Goal 5 – to reduce maternal mortality by 75% and achieve universal access to reproductive health by 2015 – the Malawi Ministry of Health conducted a strategic assessment of unsafe abortion in Malawi. This paper describes the findings of the assessment, including a human rights-based review of Malawi's laws, policies and international agreements relating to sexual and reproductive health and data from 485 in-depth interviews about sexual and reproductive health, maternal mortality and unsafe abortion, conducted with Malawians from all parts of the country and social strata. Consensus recommendations to address the issue of unsafe abortion were developed by a broad base of local and international stakeholders during a national dissemination meeting. Malawi's restrictive abortion law, inaccessibility of safe abortion services, particularly for poor and young women, and lack of adequate family planning, youth-friendly and post-abortion care services were the most important barriers. The consensus reached was that to make abortion safe in Malawi, there were four areas for urgent action – abortion law reform; sexuality education and family planning; adolescent sexual and reproductive health services; and post-abortion care services.

Malawi: Justice Sector and the Rule of Law. By Fedelis Kanyongolo. Johannesburg: Open Society Initiative for Southern Africa, 2006. Pp. 172. Available free of charge from the publisher.

Malawi: Justice Sector and Rule of Law. By Fedelis Kanyongolo. Johannesburg: Open Society Initiative for Southern Africa, 2006. Pp. 172. Available free of charge from publisher. As Malawi celebrates its thirteenth anniversary since adoption of a democratic constitution, a recent publication presents a comprehensive overview of challenges and progress in promotion of justice and rule of law in Malawi. Kanyongolo, who wrote book in cooperation with African Governance Monitoring and Advocacy Project (AfriMAP) of Open Society Initiative for Southern Africa, presents a compelling argument for law reform in some areas. For example, book recommends that Law Commission conduct a comprehensive review of penal statutes to determine whether criminal offenses are consistent with constitutional and international human rights standards. The book argues that among most important penal laws that require review are those creating offenses of criminal libel and insulting president. In introduction, Kanyongolo states aim of this book as being the principal tool in an advocacy initiative in promotion of justice and rule of law in Malawi (p. 3). The chapters review Malawi's commitment to constitutional and international standards and norms regarding human rights, rule of law, and democratic governance. Kanyongolo makes recommendations for action that generally fall into three categories: legal and policy reforms, institutional restructuring, and changes in administrative and management practices. The intention seems to be to give an exhaustive overview of all that is available and relevant. As a result, reader gets a very good institutional picture, but at expense of an in-depth analysis of similarities, common trends, and discussion of substantive provisions. The book's chapters are relatively short, not comprehensive, and often require significant background knowledge. The book is divided into two parts. The first part is a summary of gaps in legal tools for parliamentary domestication of international human rights treaties signed and ratified by Malawi. This part also discusses role of Law Commission and judiciary, and some of reasons law proposals for law reform submitted by Law Commission have not been implemented. It then argues that courts can play an important role in aligning national legislation to human rights standards that are guaranteed by international law and constitution through their power of judicial review. The second part of this book is a more in-depth analysis of domestication of international law and review of national legislation. …

Knowledge of sexual abuse amongst female students in Malawi

Sexual abuse is an increasing problem in Malawi amongst female students, and is associated with physical and mental health problems. This study aimed to determine existing knowledge of sexual abuse amongst female students in tertiary education institutions in Malawi. A descriptive, comparative, quantitative and contextual research design was used. Participants (n=219) were selected through systematic random sampling from a population of female students aged 18 to 21, at fifteen (n= 15) tertiary education institutions in Malawi. Sexually abusive behaviours demonstrated by a lover and friend were interpreted as not being abusive. There were no significant differences in knowledge of sexual abuse between the abused and non-abused respondent groups (p > 0.05). The overall prevalence rate of sexual abuse was 41%. Common forms of sexual abuse experienced were touching of breasts (54.4%) and attempted sexual intercourse (47.8%). Completed sexual intercourse was experienced by 18.9% of the respondents. The majority reported that they were sexually abused by men (98.9%). Twenty one percent experienced more than one sexually abusive incident and some respondents were abused by friends (30%). The abusers mostly used physical threats. Only 55.6% reported their sexual victimisation to others. Female students aged 18 to 21 in tertiary education institutions in Malawi had some knowledge of sexual abuse, but there were deficits in the interpretation of sexually abusive behaviours. The majority of abusers were male adolescents and young adults. Respondents should know what the Malawi law stipulates and what can be done to control and prevent sexual abuse. The information obtained from the study was used to develop guidelines for sexual abuse prevention programmes.

Access to Justice and Human Rights in Malawi: The Role of the Malawi Law Society

Access to Justice and Human Rights in Malawi: The Role of the Malawi Law Society

Language and the Law in Malawi: A Case for the Use of Indigenous Languages in the Legal System

In Malawi's legal system English is used as the language of legal proceedings and records. In cases where the plaintiffs/defendants do not speak English interpreters are provided. However, there are two factors which militate against this state of affairs. First, Malawi is a highly non-literate country with an estimated non-literacy rate of 48%. Second, English is not the vehicle of communication for the majority of the Malawian population. In the light of these facts, the paper argues that the legal system should make use of indigenous languages; not only will this facilitate communication but also eliminate the need for court interpreters. It will also give the feuding parties the confidence that they are not being misrepresented. Since communication is only successful when the receiver can interpret the information the source has put in the message, there is need, therefore, to render the law into the languages(s) that is/are familiar to the receiver. This will save citizens from being poorly defended, misjudged and unjustly condemned.

The new company, asset financing security and the law in Malawi

(1993). The new company, asset financing security and the law in Malawi. Commonwealth Law Bulletin: Vol. 19, No. 2, pp. 787-795.

Customary Family Law in Malawi

(1988). Customary Family Law in Malawi. The Journal of Legal Pluralism and Unofficial Law: Vol. 20, No. 27, pp. 117-134.

The Controversy on the Statutes of General Application in Malawi

In the Department of Law, University of Malawi, if not also in the chambers of law officers and legal practitioners, the controversy is whether statutes of general application still form part of the sources of law in Malawi. This article will argue (in support of Mr. Haynes and Dr. Wanda) that these statutes are no longer applicable in Malawi; it will argue further that some of these statutes have been adopted nominatim by some independent legislation. Finally, it will suggest that the legislature should intervene in the controversy by making declaratory provisions.

Nec-Traditionalism and the Customary Law in Malawi

Nec-Traditionalism and the Customary Law in Malawi

The Malawi Law of Succession: Another Attempt at Reform

The Wills and Inheritance Act,1 passed by the Malawi Parliament in November, 1967, is an attempt to provide a comprehensive scheme of interlocking succession provisions applicable to members of all racial groups. This is an ambitious objective and there is little need to stress here the numerous difficulties which stand in the way of its attainment. The greatest of these difficulties is to formulate a set of rules for those persons hitherto subject to diverse systems of customary law. Here the need is not only for a scheme which strikesan acceptable balance between the contemporary demands of the customary heirs and those of the immediate family, but also for one which is sufficiently flexible to accommodate the further changes which are bound to take place. Preferably the new rules will also be effective to guide future developments along lines which are deemed to be socially desirable. A further difficulty is to combine with this scheme the rules applicable to those persons who were not previously subject to customary law. Lastly, the system as a whole must be simple enough, in the case of small estates at least, to be administered in the Local Courts. It is against these requirements that the new Act will be measured in this note.

New Land Law in Malawi

Public Administration and DevelopmentVolume 6, Issue 4 p. 221-228 Article New Land Law in Malawi Rowton Simpson, Rowton SimpsonSearch for more papers by this author Rowton Simpson, Rowton SimpsonSearch for more papers by this author First published: 01 October 1967 https://doi.org/10.1002/j.1099-162X.1967.tb00306.xRead the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat Volume6, Issue4October 1967Pages 221-228 RelatedInformation