analysisBy Hannah Gibson
In 1966, two years after gaining independence from Britain, Malawi was declared a republic. For the next 28 years Hastings Banda led the country, and the Malawi Congress Party (MCP) was the sole legally recognised party.
The authoritarian regime passed numerous laws designed to maintain its grip on power and stifle civil rights. Freedom of speech - both for individuals and the media - was curtailed. The Preservation of Public Security Act allowed for arrest without a warrant and detention without charge. A parallel system of traditional courts was exploited to prosecute political opponents.
In response to mounting local and international pressure, President Banda held a referendum on the introduction of multi-party politics in 1993. A clear majority of voters rejected one-party rule. The following year Banda and the MCP were defeated in elections. The National Consultative Council - a cross-party body charged with overseeing Malawi's transition to multi-party democracy - drafted a new constitution in less than a year.
This was an ambitious undertaking, but a new constitution was regarded as an important affirmation of the beginning of a new era in Malawian politics. Among other things, it guaranteed a full range of civil, political, social and economic rights - many of which had been denied for decades.
The Malawi Law Commission was established in 1998 as a permanent, independent institution with a constitutional mandate to review and propose amendments to the law, including the constitution. The first task of the commission was to identify and examine laws which might be contrary to the spirit of the 1994 constitution. The criminal justice system, for example, was in need of a complete overhaul.
In 2004, at President Bingu wa Mutharika's behest, the Ministry of Justice asked the Law Commission to undertake a comprehensive review of the constitution. The review lasted two years and involved extensive popular consultation, with opinions solicited from individuals and organisations throughout the country. Many emotive questions were raised. Should the constitution stipulate a national language? If so, what should this language be? Should there be a minimum level of education for MPs?
Should presidential candidates be required to declare their assets? Issues relating to citizenship and the conduct and funding of political parties were hotly debated. In 2007, the recommendations emanating from the review and two national constitutional conferences were submitted to the government, accompanied by draft legislation. A number of the key recommendations sought to strengthen oversight and accountability in the political system. Five years later, the proposed legislation remains with the cabinet.
Since 2000, many other countries in southern and eastern Africa have undertaken constitutional reviews. In 2010, a new constitution was adopted by referendum in Kenya after an extensive national consultation. Tanzania inaugurated its Constitutional Review Commission earlier this year. Zambia has recently embarked on its fifth attempt in two decades to draw up a new constitution. In Zimbabwe, the draft of a new constitution is the focus of intense and acrimonious political wrangling.
Continuous, systematic law reform is of vital importance to young legal systems and emerging democracies in sub-Saharan Africa. National constitutions are supposed to safeguard multi-party democracy, the separation of powers and the rights of citizens. They must also be adapted to changing needs and aspirations.
Independent law reform agencies can play a key role in promoting and sustaining law reform - and buttressing the credibility and effectiveness of the judiciary. In Malawi, the consultative approach of the Law Commission is one of its key strengths - and the level of popular participation in the 2004-6 constitutional review one of its greatest achievements to date. But the Law Commission cannot enact legislation. That is the preserve of the executive and legislature - which, in Malawi, have neither debated nor implemented the recommendations of the constitutional review. The authority and leverage of a constitution is dependent on the respect it commands from the governing as well as the governed.
Malawi's new president, Joyce Banda, is well-positioned to revisit the proposed constitutional reforms. Upon assuming office in April, she followed advice from the International Monetary Fund on devaluing the kwacha and resuscitating diplomatic relations with international donors. In a presentation at Chatham House in May, the president emphasised that "a strong commitment to constitutionalism continues to provide the basic framework for the growth of our democracy".
A number of controversial and so-called 'bad' laws were revoked during the first months of the presidency. At the beginning of November anti-homosexuality legislation was suspended pending full review. However, an espousal of initiatives which may be politically expedient is not the same as a commitment to systematic law reform. It merely emphasises the vulnerability of the law and state institutions in the face of very powerful presidencies in much of sub-Saharan Africa.
Throughout Africa, voters are becoming increasingly vocal in their demands for respect for constitutions and active participation in constitutional change. In Malawi, President Mutharika's death was preceded by a year of unrest and protests. The constitution was frequently invoked by protestors and civil society organisations.
It remains as central to Malawi's political future as it was during the tumultuous transition to multi-party democracy in 1993-4. The considerable cost in time, effort and money involved in the constitutional review will have been wasted if it remains "buried". More importantly, the views of all Malawians who participated in the nationwide consultation will have been ignored. The government needs to move things on and implement - or at least discuss - the principal recommendations of the review.
On 15th November 2012 Dr Janet Chikaya-Banda will give a presentation at Africa Research Institute in London to mark the official launch of her publication "Duty of Care: Constitutional and law reform, in Malawi". Dr Chikaya-Banda is chief law reform officer at the Malawi Law Commission. She oversaw the constitutional review programme in 2004-6 and compiled the report presented to the first national constitutional conference. Malcolm McMillan, chief executive of the Scottish Law Commission will deliver a response.
Hannah Gibson is policy researcher at Africa Research Institute.