This discussion paper is based on the main findings and recommendations of a comprehensive report on the justice sector and rule of law in Malawi commissioned by the Open Society Initiative for Southern Africa (OSISA) and the Open Society Foundation’s Africa Governance Monitoring and Advocacy Project (AfriMAP) in 2005. The paper is not a summary of the main report, although it draws from it the key challenges that face the promotion of the rule of law and justice in Malawi, based on the expert and public opinion that emerged in the course of the research for the main report. The paper is intended to be used as the principal tool in an advocacy initiative led by the Law Faculty of the University of Malawi, OSISA and AfriMAP, working with a wide range of stakeholders involved in the promotion of justice and the rule of law in Malawi.
The paper is also informed by certain basic characteristics of the justice sector in Malawi, including its purported philosophical connection to international values and principles; the limitations of the autonomy and accountability of institutions created by a state which historically has been highly centralised; the failure of the crime and punishment regime to modernise and cope with contemporary social and economic challenges; and the limited responsiveness of the formal justice system to the needs of the majority of the population, particularly those that are vulnerable and marginalised.
The paper makes recommendations for action which generally fall into three categories: legal and policy reforms; institutional restructuring; and changes in administrative and management practices. The recommendations vary in specificity and have not been prioritised. The latter ‘omission’ is deliberate in order to promote genuine discussion among practitioners who are better qualified to determine the order of priority of recommendations given their experience of what is practicable in the social, economic and political context. In any case, the list of recommendations in this paper cannot be regarded as exhaustive and remains open to informed debate and revision.