analysisBy Richard Lee
There is no doubt that Malawi is a very different country with Joyce Banda in State House - a country that is returning to the path of democracy, constitutional government and respect for human rights. It is a reality acknowledged in a new report by the International Bar Association Human Rights Institute (IBAHRI), entitled The Rule of Law in Malawi: Road to Recovery.
Funded by the Open Society Initiative for Southern Africa (OSISA), the report highlights the progress that has been made since the end of the increasingly autocratic rule of former President Bingu wa Mutharika. However, the 56-page report stresses that there is still a lot of work to be done to entrench the rule of law, ensure judicial independence and protect human rights in Malawi.
Launched with a high-level panel discussion in Lilongwe, the report contains 27 recommendations - for the government, civil society, media and international donors - that would help Malawi to stay on the road to recovery.
"Now is the time to make these changes to entrench the rule of law in Malawi," said Tinoziva Bere, President of the Law Society of Zimbabwe and a member of the IBAHRI mission to Malawi. "Malawi must strengthen its structures and systems during these good times so that they are strong enough to act as effective checks and balances should bad times return."
In particular, the 56-page report calls for measures to be taken to:
Ensure that process for judicial selection is transparent and that there are institutionalised checks and balances on executive control over the process;
Strengthen those institutions supporting the rule of law and good governance, particularly the Malawi Human Rights Commission, the Malawi Law Commission, the Malawi Electoral Commission and the Office of the Ombudsman;
Ensure the independence of the Director of Public Prosecutions, including ending consultation with the Attorney General;
Boost the capacity of the criminal justice sector, notably to reduce the length of pre-trial detention;
Comply with Malawi's reporting obligations under international human rights treaties since a large number of critical reports are long overdue;
Ensure that police officers involved in killing innocent protestors during the July 2011 demonstrations are brought to trial and punished if found guilty; and
Ensure that legal provisions dealing with media and freedom of the press respect constitutional provisions and international obligations.
The IBAHRI delegation comprised Justice Leona Theron (Judge of the Supreme Court of Appeal of South Africa), Professor Christine Chinkin (Professor of international law, LSE), Tinoziva Bere (President of the Law Society of Zimbabwe) and Ottilia Anna Maunganidze (Researcher for the Transnational Threats and International Crime Division at the Institute for Security Studies). The team visited Malawi from 8-14 January, 2012 to assess the rule of law in Malawi - with particular emphasis the independence of the judiciary and the legal profession - and the state of human rights, particularly following the deadly demonstrations in July 2011.
Consultations were held in Lilongwe, Blantyre and Zomba with government representatives, judges, lawyers, representatives of international organisations, and non-governmental organisations.
At the time, the IBAHRI delegation found that fundamental principles entrenched in the country's Constitution were often disregarded by the executive, particularly the separation of powers and the observance of basic human rights.
However, since wa Mutharika's death, a number of actions have been taken to ensure better respect for the rule of law in the country. The launch of a Commission of Inquiry into student Robert Chasowas's death, Malawi's refusal to welcome Sudanese President Omar al-Bashir on its territory as he is under a warrant of arrest from the ICC, and the repeal of section 46 of the Penal Code, were all positive steps and the IBAHRI welcomed these positive developments. This change of direction has also had an impact on donor funding, which is progressively being restored.
But even though Malawi's current situation is in many aspects very different from the one observed by the IBAHRI delegation in January 2012, some key issues still need to be remedied in order for Malawi to fully restore the rule of law - issues that involve not only the government but also legal practitioners, civil society and the media.
The previous government spent years undermining the rule of law and the separation of powers by passing terrible laws, disregarding court orders, publicly attacking the judiciary, and encouraging abuses and a sense of impunity within the police force. President Banda's government has helped Malawi to turn the corner, but the road to recovery will be long and winding and bumpy.
However, if the recommendations in the IBAHRI report are adopted, the end result will be a country with a much stronger judicial branch and greater respect for human rights and the rule of law.