Malawi should implement recommendations of constitutional review – Chikaya-Banda

The Joyce Banda administration has been persuaded to “move things on” by implementing – or at least debating openly – the recommendations of the constitutional review.

Former  chief law reform officer at the Malawi Law Commission, Dr Janet Chikaya-Banda, who  oversaw a two-year constitutional review programme in 2004-6., has made the appeal in her latest publication,’Duty of Care: Constitutional and law reform, in Malawi.

She launched her her publication at Africa Research Institute in London on Wednesday.

In her timely account, she explains the importance of continuous, systematic law reform in young democracies and the role that it can play in upholding the credibility and effectiveness of the judiciary.

She highlights impediments to the pursuit of democratic ideals articulated in the Malawi Constitution, the consequences of weak institutional commitment to law reform, and the vulnerability of the law in the face of a very powerful presidency.

Chikaya-Banda calls on Malawi’s new government to implement the recommendations of the constitutional review “in order to establish an unambiguous commitment to constitutional and law reform.”

In Duty of Care, she describes the work of the commission and explains the importance of continuous law reform – especially to “young” democracies with legal systems of recent devising, and rapidly changing requirements.

“Law reform can play a crucial role in upholding the credibility and effectiveness of the judiciary. But the implementation of recommendations from Malawi’s dedicated law reform agency – the Law Commission – requires a sustained commitment at the highest levels of government, and in parliament,” she writes.

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.

Chikaya-Banda calls on MPs to be more engaged with committee work and the legislative process.

“They should not be in parliament simply to rubber stamp the wishes of the president and cabinet. Adequate funding for parliamentary training and processes is urgently required to improve the capacity of parliament to perform the role envisaged in the constitution. “

She also calls for the invoking anti-defection law.

“The political merry-go-round of ‘crossing the floor’  should be stopped, by the strict enforcement of Section 65 of the constitution.”

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 resuscitated diplomatic relations with international donors.

In a presentation at London’s 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 Justice Minister Ralph Kasambara announced that government had suspended the anti-homosexuality legislation pending full review.

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