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The Rights of Detained and Accused Persons in Post-Banda Malawi
Published online by Cambridge University Press: 28 July 2009
Extract
The new Constitution of Malawi came into force provisionally on 18 May, 1994. It replaced the Republican Constitution of 1966 which had been amended in 1993 in order to allow for the re-introduction of a multi-party democracy, the reincorporation, as an interim measure, of the Bill of Rights as contained in the Independence Constitution of 1964, and the abolition of the life presidency created under section 10(3) of the 1966 Constitution as amended in 1970 so as to provide that Dr Banda was to be president of the Republic for his lifetime.
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- Information
- Journal of African Law , Volume 40 , Issue 2: SPECIAL FORTIETH ANNIVERSARY NUMBER LIBER AMICORUM FOR PROFESSOR JAMES S. READ , Autumn 1996 , pp. 221 - 233
- Copyright
- Copyright © School of Oriental and African Studies 1996
References
1 The “provisional” Constitution was brought definitively into force, as amended, on 17 May, 1995. See Mutharika, above, p. 205.
2 In many respects, the Malawian Bill of Rights, styled “Human Rights”, follows closely the current chapter 3 on Fundamental Rights of the South African Interim Constitution, Act No. 200 of 1993.
3 He was first appointed Minister of Natural Resources and Local Government on 21 September, 1961 (see Colonial Annual Report Myasaland, 1962, 163). He then became the first Prime Minister an independent Malawi in July 1964, President of the Republic of Malawi in 1966 and later Life President in 1970 by the Constitution (Amendment) (No. 3) Act No. 35 of 1970. See also Wanda, B. P., “Colonialism, nationalism and tradition: the evolution and development of the legal system of Malawi”, unpub. Ph.D. thesis, University of London, 1979, vol. 1, 294.Google Scholar
4 See Constitution of the Republic of Malawi, 1966, s. 14.
5 The Malawi Congress Party had been formed by Orton Chirwa while Dr Banda was in detention, but ironically, is the same Malawi Congress Party Government which later hounded Chirwa from Zambia, tried him in its traditional courts and sentenced him to death. Chirwa’s death sentence was commuted to life imprisonment and he died in one of Banda’s prisons in 1992.
6 MrBlackwood’s, M. United Federal Party, which stood for white interests, was virtually impotent ot oppose or block any policy of the Government.Google Scholar
7 Laws of Malawi, Cap. 14:02, Government Printer Zomba, 1968.
8 Preservation of Public Security Act, cap. 14:02, s. 3(2).
9 Ibid. s. 4.
10 Public Security Regulations, G.N. 70/1964.
11 Ibid. Regulation 3(1).
12 Ibid. Regulation 3(2).
13 Ibid. Regulation 3(3) and 3(4).
14 Ibid. Regulation 3(6).
15 Ibid. Regulation 3(7).
16 For a more detailed discussion of the use of the power under this Act and the challenge in the Courts, see Wanda, B. P., “Malawi, ”, in Harding, A. J. and Hatchard, J. (eds.), Preventive Detention Security Law: A Comparative Survey, London, 1993, 123.Google Scholar
17 Public Security Regulation, 4(1).
18 Ibid. Regulation 4(2).
19 Ibid. Regulation 3(9).
20 No. 1 of 1966, Laws of Malawi, Cap. 14:06.
21 Forfeiture Act, 1966, s. 2.
22 No. 8 of 1962, cap. 75 of the Laws of Nyasaland, now cap. 3:03 of the Laws of Malawi.
23 Those who could not read or write signified their concurrence with the judgment of the court by a cross mark (+). The judgment was invariably written in English by the lay magistrate member of the bench.
24 Some of the famous persons who appeared before these courts were Gwanda Chakwamba, a minister of the Southern Region at the time of his trial (found guilty of sedition and sentenced to 21 years imprisonment), Albert Muwalo Nqumalo, a minister of State at the time of his trial (treason, found guilty and hanged), Orton Chong'oli and Vera Chirwa (treason), E. Masiku, Chairman of the Agricultural Development and Marketing Corporation (theft), and many others.
25 For a more detailed discussion of traditional courts see Wanda, B. P., “The role of traditional courts in Malawi”, in Takirambudde, P. N. (ed.), The Individual Under African Law, University of Swaziland, 1982, 76.Google Scholar
26 Criminal Procedure and Evidence Code, cap. 8:01, Law of Malawi, s. 176(1).
27 Ibid. ss. 256(1) and 314.
28 Ibid. s. 194.
29 Constitution of the Republic of Malawi, s.42(l)(a).
30 Ibid. s.42(l)(b).
31 Amnesty International stated that under Life President Banda, Malawi was a source of numerous reports of ill-treatment and torture of political detainees and religious dissidents. The motive for the use of torture was intimidation of political prisoners and the terrorizing of religious dissenters rather than extraction of information. The agency for such torture were the Malawi Young Pioneers, and prisons such as Dzeleka were used for severe beating of political detainees; some of the prisoners died in the process: Amnesty International Report On Torture, London, 1975, 124.Google Scholar
32 Constitution of the Republic of Malawi, s. 42(l)(c) and (d).
33 Ibid. s.42(l)(e).
34 This is the reasoning which was followed by the Zimbabwean High Court in Bull, v.Minister of Stale (Security) and Others 1987 (1) SA 422 (ZHC);Google Scholarsee also the paper by MrDumbushena, Justice E., Developing Human Rights Jurisprudence. Vol. 2, London, 1989, 21.Google Scholar
35 E.g. Bandawe v. Republic (Supreme Court of Appeal, 1987, unreported); Munthali v. Republic (High Court, 1984, unreported); Republic v. Ngondo (High Court, 1987, unreported).
36 Act No. 200 of 1993. The same mistake, it is submitted, has been perpetuated in s. 35(l)(a) and (b) of the draft new Constitution which, although retaining the right to remain silent, does not spell out what consequences might follow if the accused elects to make a statement: Constitution ofthe Republic of South Africa Bill, 6 May, 1996.
37 The words quoted are taken from Rule II of the Judges’ Rules as reproduced in Archbold’s Pleading, Evidence and Practice in Criminal Cases (40th ed.), London, 1979, 891, para. 389.Google Scholar
38 Constitution of the Republic of Malawi, s. 42(2)(6).
39 Laws of Malawi, Cap. 8:01.
40 Beddard, R., Human Rights and Europe, Cambridge, 1993, 172.Google Scholar
41 Constitution of the Republic of Malawi, s. 42(2)(a).
42 Ibid. s. 42(2)(e).
43 Ibid. s. 42(2)(f).
44 Laws of Malawi, cap. 8:01.
45 Beddard, op. cit., 173.
46 For example the South African Interim Constitution, s. 25(1)(2) and (3).
47 See art. 6 of the Convention.
48 See art. 7 of the Charter.
49 See, for example, arts. 8–11 of the Universal Declaration of Human Rights, 1948; arts. 9, 10 and 14 of the International Covenant on Civil and Political Rights, 1966; and art. 5 of the International Convention on the Elimination of All Forms of Racial Discrimination, 1965.