Courts and the poor in Malawi: Economic marginalization, vulnerability, and the law

International Journal of Constitutional Law

Volumn 5, Issue 2, 2007, Pages 258-293

  Gloppen, Siri ^a   Kanyongolo, Fidelis Edge ^b  

^a UNIVERSITY OF BERGEN   (Norway)

^b UNIVERSITY OF MALAWI   (Malawi)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34247209094     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/mom002     Document Type: Conference Paper

References (211)

1. On differences between constitutions that reflect the status quo and transformative constitutions, see Geoff Budlender, Transforming the Judiciary: The Politics of the Judiciary in a Democratic South Africa 122 SALJ. 715, 715-716 (2005)
2. Karl Klare, Legal Culture and Transformative Constitutionalism, 14 SAJHR146 (1998).
3. Republic of Malawi (Constitution) Act, No. 20 of 1994, hereinafter MALAWI CONST. or the Constitution.
4. Edge Kanyongolo, Courts, Elections and Democracy, in THE POWER OF THE VOTE: MALAWI'S 2004 PARLIAMENTARY AND PRESIDENTIAL ELECTIONS (Martin Ott et al. eds., Kachere Series 2005)
5. Siri Gloppen & Fidelis Edge Kanyongolo, The Role of the Judiciary in the 2004 General Elections in Malawi, 12 E. AFR. J. PEACE & HUM. RTS. 279 (2006).
6. On social transformation and transformative jurisprudence, see Siri Gloppen, Courts and Social Transformation: An Analytical Framework in COURTS AND SOCIAL TRANSFORMATION IN NEW DEMOCRACIES: AN INSTITUTIONAL VOICE FOR THE POOR? 35, 37-39 (Roberto Gargarella et al. eds., Ashgate 2006).
7. The Malawi Supreme Court of Appeal (MSCA) was established by MALAWI CONST. §§ 104 & 105.
8. The High Court of Malawi (MHC) was established by MALAWI CONST. §108.
9. Republic of Malawi Courts (Amendment) Act, No. 2 of 2004, §9(2).
10. MALAWI CONST. §108(2).
11. MALAWI CONST. §110.
12. Republic of Malawi, Integrated Household Survey 139 (2005), available at http://www.nso.malawi.net/data_on_line/economics/ihs/ IHS2/IHS2_Report.pdf.
13. Danwood Chirwa, A Full Loaf is Better Than Half: The Constitutional Protection of Economic, Social and Cultural Rights in Malawi, 49 J. AFR. L. 207, 214 (2005).
14. Amartya Sen, DEMOCRACY AS FREEDOM 87 (Oxford Univ. Press 1999)
15. United Nations Development Programme (UNDP), Human Development Report 73 (2000), available at http://hdr.undp.org/reports/global/2000/en.
16. Republic of Malawi, Malawi Poverty Reduction Strategy Paper (2002), available at http://www.imf.org/External/NP/prsp/2002/mwi/ 01/index.htm.
17. See also Stanley W. Khaila et al., Consultations with the Poor: Country Synthesis Report Malawi 29 (World Bank 1999), available at http://www1.worldbank.org/prem/poverty/voices/reports/national/ malawi.pdf.
18. Integrated Household Survey, supra note 10, at 73.
19. Id. at 139.
20. UNDP, Human Development Report (2006), available at http://hdr.undp.org/reports/global/2006/en.
21. See also UNDP, Human Development Indicators: Country Fact Sheet Malawi (2006), at http://hdr.undp.org/hdr2006/statistics/ countries/country_fact_sheets/cty_fs_MWI.html. The human development index provides a composite measure of life expectancy, adult literacy and school enrolment, and income (purchasing power parity, PPP, income). The Human Poverty Index for developing countries uses the same dimensions but focuses on the proportion of people below a threshold level.
22. Malawi Poverty Reduction, supra note 13, at 5.
23. World Development Report 139 (World Bank 2001)
24. François Delor & Michel Hubert, Revisiting the Concept of 'Vulnerability', 50 SOC. SCI. & MED. 1557 (2000).
25. Stigmatization occurs when an individual or social group is negatively evaluated and perceived to possess a characteristic constituting a basis for avoiding or excluding them from certain types of social interaction. Such exclusion produces and reproduces marginalization, which in turn increases vulnerability. Robert Kurzban & Mark Leary, Evolutionary Origins of Stigmatization: The Functions of Social Exclusion, 127 PSYCHOL. BULL. 187 (2001).
26. Identity is an indicator of vulnerability in the legal political order and a basis for legal and political entitlement, which, in turn, determines marginalization and political weakness. See Harry Englund, Introduction: Recognising Identities, Imagining Alternatives in RIGHTS AND THE POLITICS OF RECOGNITION IN AFRICA (Harry Englund & Francis Nyamjoh eds., Zed Books 2004).
27. Integrated Household Survey, supra note 10, at 19.
28. Olivia Kumwenda, 2005: Year of Muluzi, Bingu Conflict, NATION MALAWI, Dec. 30 2005, available at http://www.nationmalawi.com/print.asp?articleID=1439
29. Hery Cilobwe, 2005: The Year of Tit for Tat, NATION MALAWI, Dec. 30, 2005, available at http://www.nationmalawi.com/print.asp?articleID=14394
30. George Ntonya, Malawi Needs Responsible Politicians - Envoy, NATION MALAWI, Jan. 3, 2006, available at http://www.nationmalawi.com/articles.asp?articleID=14433.
31. Eric Pelser et al., CRIMES OF NEED: RESULTS OF THE MALAWI NATIONAL CRIME VICTIMISATION SURVEY, 17-25 (Malawi National Statistical Office 2004).
32. Malawi: Govt Threatens to Evict Informal Settlers, INTEGRATED REGIONAL INFORMATION NETWORKS, Aug. 15, 2005, at http://www.irinnews.org/report.asp?ReportID=48549&SelectRegion= Southern_Africa.
33. Govt Puts Foot Down on Vendors, NATION MALAWI, Apr. 18, 2006, available at http://www.nationmalawi.com/ print.asp?articleID=16248.
34. MALAWI CONST. §12.
35. MALAWI CONST. §13.
36. SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA 16 (Sandra Liebenberg & Karisha Pillay eds., Community Law Centre, Univ. of Western Cape 2000).
37. §§ 25, 30 & 44, respectively.
38. Prisoners have the right "to be detained under conditions consistent with human dignity, which shall include at least the provision of reading and writing materials, adequate nutrition and medical treatment at the expense of the State." §42(1)(b).
39. The right reflects developing countries' aspirations of social justice as embodied in the African [Banjul] Charter on Human and Peoples' Rights, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982) (adopted June 27, 1981),
40. and the United Nations Declaration on the Right to Development, G.A. 41/128 (Dec. 4, 1986).
41. Belief in the right to development as a vehicle for social change has faded as repeated attempts to turn the vaguely worded declaration into a more binding treaty text failed due to political resistance from Western countries and the U.S. in particular. On the politics of the right to development, see Stephen Marks, The Human Right to Development: Between Rhetoric and Reality, 17 HARV. HUM. RTS. J. 137 (2004).
42. MALAWI CONST. §30.
43. African Charter, art. 22, supra note 30
44. cf. MALAWI CONST. §30, cited in full above.
45. See Chirwa, supra note 11, at 207.
46. MALAWI CONST. §13.
47. Similar arrangements are found in the constitutions of Namibia (1990: ch. XI, principles of state policy; & art. 20, right to education),
48. Ghana (1992: Ch. 6, directive principles of state policy; art. 24, labor rights; art. 25: Right to education; arts. 27-29, rights of women, children and disabled persons)
49. and Uganda (1995, pmbl: National Objectives and Directive Principles of State Policy; art. 30, right to education; arts. 32-35, affirmative action in favor of marginalized groups and special protection of women, children, & people with disabilities; art. 39, right to a clean and healthy environment; & art. 40, economic rights),
50. Sierra Leone (1991: Ch. II, Fundamental Principles of State Policy),
51. & Nigeria (1999: Ch, II: Fundamental Objectives and Directive Principles of State Policy) recognize social rights only as directive principles.
52. Supra note 11, at 207.
53. MALAWI CONST. §14.
54. For a discussion, see Chirwa, supra note 11.
55. Supra note 30. Ratified by Malawi Nov. 17, v. 1989.
56. International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3. Ratified by Malawi Dec. 22, 1993.
57. Convention on the Elimination of All Forms of Discrimination against Women, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/ 34/46 (accession by Malawi Mar. 12, 1987).
58. MALAWI CONST. §211 provides that: "(1) Any international agreement ratified by an Act of Parliament shall form part of the law of the Republic if so provided for in the Act of Parliament ratifying the agreement. (2) International agreements entered into before the commencement of this Constitution and binding on the Republic shall form part of the law of the Republic, unless Parliament subsequently provides otherwise or the agreement otherwise lapses. (3) Customary international law, unless inconsistent with this Constitution or an Act of Parliament, shall have continued application."
59. On the relationship between international law and Malawi's domestic law, see Thomas Trier Hansen, Implementation of International Human Rights Standards through the National Courts in Malawi, 46 J. Afr. L. 31 (2002).
60. MALAWI CONST. §11 (2), stating: "In interpreting the provisions of this Constitution a court of law shall... (c) where applicable, have regard to current norms of public international law and comparable foreign case law."
61. Criminal Appeal No. 9 of 1992 (MSCA).
62. Michael Anderson, Access to Justice and Legal Process: Making Legal Institutions Responsive to Poor People in LDCs (Institute of Development Studies, Working Paper No. 178, 2003).
63. MALAWI CONST. §22.
64. Anderson, supra note 44.
65. Ministry of Lands, Malawi National Land Policy 6 (2002), available at http://www.malawi.gov.mw/publications/landpol.htm.
66. MALAWI CONST. §28.
67. Between 1967 and 1994 more than one million hectares of customary land was lost to private and public land. Supra note 47.
68. See, e.g., A.T.B. Mbalanje, Land Law and Land Policy in Malawi in LAND POLICY AND AGRICULTURE IN EASTERN AND SOUTHERN AFRICA (J.W. Arntzen et al. eds., United Nations Univ. 1986)
69. Jean-Philippe Platteau, The Evolutionary Theory of Land Rights as Applied to Sub-Saharan Africa: A Critical Assessment, in 27 DEV. & CHANGE 29 (1996)
70. KLAUS DEININGER, LAND POLICIES FOR GROWTH AND POVERTY REDUCTION (Oxford Univ. Press 2003).
71. MALAWI CONST. §29.
72. MALAWI CONST. §31.
73. MALAWI CONST. §27.
74. MALAWI CONST. §23.
75. MALAWI CONST. §41, 43 & 26, respectively.
76. Civil Cause 1665 of 1994 (HCM).
77. 175 CLR 1 (1992).
78. 187 CLR 1 (1997).
79. Brennan J. in Mabo, supra note 58.
80. On application of this principle to establish the rights of a dispossessed ethnic group in Botswana, see Clement Ng'ong'ola, Land Rights for Marginalized Ethnic Groups in Botswana, with Special Reference to the Basarwa, 41 J. AFR. L. 1 (1997).
81. Fidelis Edge Kanyongolo, The Rhetoric of Human Rights in Malawi: Individualization and Judicialization, in RIGHTS AND THE POLITICS OF RECOGNITION IN AFRICA, supra note 20 (2004).
82. Civil Cause No. 1839(a) of 1997 (MHC).
83. Chirwa, supra note 11, at 222.
84. It is difficult to determine the genesis of the provision since the record of the proceedings of the National Consultative Council, the multiparty grouping that produced the first draft of the Constitution in 1994, has never been made public. In addition, the national constitutional conference held in February 1995, which brought together a cross section of Malawian society to debate the Constitution, endorsed the provision without any substantive comment. Nevertheless, the origins of the provision can probably be traced to case law going back to the 1960s, in which courts laid down the principle that a long-term relationship between a man and a woman can create rights and duties akin to those of married people notwithstanding that the relationship has not been formalized. See, for example, the 1964 cases of Nelson v. Magombo 1964-1966 ALR (Malawi Series) 134
85. and Ali v. Mhango, Civil Appeal No. 15 (T.C.) of 1970, discussed in 16 J. AFR. L. 176 (1972).
86. Four percent of women and one percent of men over the age of fifteen live in such common-law marriages according to the National Statistical Office, 2004 Malawi Demographic and Health Survey (2005) 26, available at http://www.measuredhs.com/pubs/pdf/FR175/03Chapter03.pdf.
87. In Rashid Hussein James v. Republic, High Court Criminal Case No. 12 of 1999 (unreported), the High Court held that a woman's refusal to engage in sex should not always be taken at face value, while Supreme Court Justice Tambala, speaking at a Women and Law in Southern Africa (WILSA) conference, argued against criminalizing marital rape, stating that "there cannot be rape between spouses while their marriage subsists." Africanews, June 2001, at http://web.peacelink.it/afrinews/63_issue/p7.html.
88. Malawi Law Commission, Constitutional Review Consultation Paper 16, available at http://www.lawcom.mw/docs/consultationpaper.pdf.
89. In its public consultations during the process of constitutional review in 2005, the Malawi Law Commission found such opposition, particularly among traditional leaders and youth. (Malawi Law Commission, supra note 65, at 17). This view was repeated in presentations made at a national conference on the Constitution held in April 2006. Summary of the Proceedings of the First National Conference on the Review of the Constitution 7 (2006), at http://www.lawcom.mw/docs/ summproc.pdf.
90. See Malawi Law Commission, Report of the Law Commission on the Review of the Laws of Marriage and Divorce 23 (Dec. 30, 2005).
91. MHC Loses Case on Rents, 29 MALAWI NEWS ONLINE, May 7, 1997, available at http://www.africa. upenn.edu/Newsletters/ mno29.html.
92. Figures are from Siri Gloppen, Public Interest Litigation, Social Rights and Public Policy, World Bank Conference: New Frontiers of Social Policy (Dec. 12-15, 2005), available at http://siteresources.worldbank.org/INTRANETSOCIALDEVELOPMENT/Resources/ Gloppen.rev.3.pdf.
93. For An elaborated version of the framework, see Gloppen, Courts and Social Transformation, supra note 4.
94. SALLY FALK MOORE, LAW AS PROCESS: AN ANTHROPOLOGICAL APPROACH (Routledge & Kegan Paul, 1978).
95. For a schema of the stages in the voicing of claims, see Anderson, supra note 44, at 17
96. Willam Felstiner et al., The Emergence and Transformation of Disputes: Naming, Blaming, Claiming, 15 LAW & SOC'Y REV. 631 (1981).
97. Wilfried Scharf et al., Access to Justice for the Poor of Malawi?, 15 (Department for International Development 2002), available at http://www.grc-exchange.org/docs/SSAJ99.pdf.
98. Malawi Judiciary Programme 2003/11-2008/1, 10 (2003).
99. id.
100. List of fees posted at the Malawi Judiciary website, at http://www.judiciary.mw/Court_fees.htm, (last accessed Jan. 17, 2006).
101. Scharf, supra note 73, at 15.
102. Malawi Judiciary, List of Courts in Intergraded [sic] Judiciary, at http://www.judiciary.mw/Courts_list.htm, (last accessed Jan. 17, 2006).
103. MALAWI CONST. §108 (2).
104. Statute Law (Miscellaneous Provisions) Act, §16
105. Order 53 of the Rules of the Supreme Court.
106. Courts (Amendment) Act, supra note 7, §9(2).
107. MALAWI CONST. §30(1).
108. MALAWI CONST. §31(2).
109. MALAWI CONST. §13.
110. On experiences of simplified access to the Indian Supreme Court, see Upendra Baxi, Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India, 1985 THIRD WORLD LEGAL STUD. 107.
111. For Costa Rica's experience with court-aided investigation of cases, see Bruce M Wilson, Claiming Individual Rights through a Constitutional Court: The Example of Gays in Costa Rica, 5 INT'L J. CONST. L. (I·CON) 242 (2007) (in this issue).
112. In NDA v. Electoral Commission, MBC and TVM, Constitutional Case No. 3 of 2004 (MHC), publicized media monitoring data from the Electoral Commission, submitted as evidence of bias in election coverage, was thrown out as hearsay for not being appropriately presented. The advocate was one of Malawi's most experienced, who months later became the Attorney General.
113. See Klaus Decker et al., Law or Justice: Building Equitable Legal Institutions, World Development Report 2006 (World Bank, Working Paper 2005).
114. For the poverty-lawlessness dynamic, see Anderson, supra note 44.
115. On elite capture, see Decker et al., supra note 86.
116. For the relative importance of traditional legal institutions, see Leila Chirayath et al., Customary Law and Policy Reform: Engaging with the Plurality of Justice Systems, World Development Report 2006 (World Bank, Working Paper 2005).
117. Pelser et al. supra note 23, at 72
118. HEIKO MEINHARDT & NANDINI PATEL, MALAWI'S PROCESS OF DEMOCRATIC TRANSITION 43 (Konrad Adenauer Stiftung 2003).
119. See, e.g., GRACE TIKAMBENJI MALERA, THE SOCIO-LEGAL STATUS OF MALAWIAN WOMEN IN POLITICS: OPPORTUNITIES AND CHALLENGES (Danish Institute for Human Rights 2005)
120. and the report of the European Union Election Observation Mission to Malawi (2004), at http://ec.europa.eu/comm/external_relations/ human_rights/eu_election_ass_observ/malawi/prelim_stat_04.pdf.
121. For a sample assessment of recent trends since 2000, see Amnesty International, Report 2003: Malawi (2003), at http://web.amnesty.org/report2003/mwi-summary-eng
122. Centre for Human Rights and Rehabilitation, Malawi Human Rights Report 2003-2004 (2005), at http://www.chrr.org.mw/downloads/ malawi_human_rights_report_2003_04.doc
123. and United States Department of State, Country Report on Human Rights Practices (2005)
124. Malawi (2005), at http://www.state.gov/g/drl/rls/hrrpt/2005/61579.htm.
125. 128 Trade Union Members v. NSCM Milling Division, No. 8 of 1999 (IRC), concerns union leaders who were dismissed after organizing a strike.
126. Mhango v. Attorney General, Civil Case No. 980 of 1998 (MHC), concerns a union leader who mediated in a trade dispute and was attacked by police.
127. Media Institute of Southern Africa, So, This is Democracy?: Report on the State of Media Freedom and Freedom of Expression in Southern Africa 62 (MISA Windhoek 2005), available at http://www.misa.org/sothisisdemocracy.html.
128. MALAWI CONST. §126.
129. The ombudsman found that a plaintiff had been unlawfully terminated. Two years later, the employer had not complied with the orders. The plaintiff applied to the High Court to have it enforce the ombudsman's determination, but the court held that "once a person has opted to bring the matter to the office of the Ombudsman, the case can only come to the High Court for purposes of judicial review [and not direct enforcement]." Munthali v. Malawi Institute of Education, Civil Case No. 84 of 2003 (MHC).
130. MALAWI CONST. §129
131. Human Rights Commission Act, No. 27 of 1998.
132. Malawi Human Rights Commission, Annual Report 2004, 9-11 (2005), available at http://www.malawihumanrightscommission.org/docs/ 2004_MHRC_AnnualReport_.pdf.
133. See Malawi Law Commission, Report on the Workshop on the Review of the Traditional Courts Act Chapter 3:03 of the Laws of Malawi (2004).
134. See CHARLES EPP, THE RIGHTS REVOLUTION: LAWYERS, ACTIVISTS, AND SUPREME COURTS IN COMPARATIVE PERSPECTIVE (Univ. Chicago Press 1998)
135. COURTS AND SOCIAL TRANSFORMATION IN NEW DEMOCRACIES, supra note 4.
136. EPP, supra note 100
137. Mark Haywood, Shaping, Making and Breaking the Law in the Campaign for a National HIV/AIDS Treatment Plan, in DEMOCRATISING DEVELOPMENT: THE POLITICS OF SOCIO-ECONOMIC RIGHTS IN AFRICA (Peris Jones & Kristian Stokke eds., Brill Academic 2005).
138. CAUSE LAWYERING AND THE STATE IN A GLOBAL ERA (Austin Sarat & Stuart Scheingold eds., Oxford Univ. Press 2001).
139. Litigating Economic, Social and Cultural Rights: Achievements, Challenges and Strategies (Centre on Housing Rights and Evictions 2003)
140. Haywood, supra note 101
141. CAUSE LAWYERING, supra note 102.
142. Typically, Malawi Health Equity Network's campaign to improve the quality of health care focused on health rights though essay competitions; public lectures; media campaigns; training; research - but not litigation. Adamson Muulan Will Health Rights Solve Malawi's Health Problems, 46 CROAT MED. J. 46, 853, 853 (2005).
143. Legal Aid Act, ch. 4:01 (1964) mandates the government to provide legal representation to civil litigants and criminal defendants. In September 2005, the department had ten lawyers, and insufficient funds to pay lawyers in private practice. Telephone interview with Reyneck Matemba, chief legal aid advocate, Ministry of Justice and Constitutional Affairs (Jan. 31, 2006). With few experienced lawyers, services regularly violate basic requirements for the right to legal representation - to have a lawyer with "experience and competence commensurate with the nature of the offence." Basic Principles on the Role of Lawyers, art. 6, 8th United Nations Congress on the Prevention of Crime and the Treatment of Offenders, U.N. Doc. A/CONF.144/28/Rev.1 at 118 (Aug. 27-Sep. 7, 1990), available at http://www.unhchr.ch/html/menu3/b/h_comp44.htm.
144. In HRC v. Attorney General, 200 Miscellaneous Cause 1119 (MHC), the Human Rights Commission represented civil servants complaining of being discriminated against in a governmental housing scheme.
145. Gloppen & Kanyongolo, supra note 3.
146. Fidelis Edge Kanyongolo, Land Occupations in Malawi: Challenging the Neo-Liberal Legal Order, in RECLAIMING THE LAND: THE RESURGENCE OF RURAL MOVEMENTS IN AFRICA, ASIA AND LATIN AMERICA 133 (Sam Moyo & Paris Yeros eds., Zed Books 2005).
147. John Minnis, Prospects and Problems of Civil Society in Malawi, in DEMOCRATISATION IN MALAWI: A STOCKTAKING 12 (Kings Phiri & Kenneth Ross eds., Kachere 1998).
148. MALAWI CONST. §103 (2) reads: "The judiciary shall have jurisdiction over all issues of judicial nature and shall have exclusive authority to decide whether an issue is within its competence."
149. MALAWI CONST. §13.
150. PAC v. Attorney General, Civil Cause No. 1861 of 2003 (MHC). The case concerned review of a parliamentary decision to pass a constitutional amendment violating human rights.
151. An amicus, or "friend of the court," is not party to the case but is allowed to bring relevant perspectives to the court's attention.
152. Kanyongolo, Courts, Elections, supra note 3.
153. Miscellaneous Civil Application No. 11 of 1993, 16 (MLR) 1, 256, 261.
154. Civil Appeal No. 12 of 1999 (MSCA).
155. Attorney General v. MCP and Others, Civil Appeal No. 22 of 1996 (MSCA) 39.
156. President & Another v. Kachere & Others, Civil Appeal No. 20 of 1995 (MSCA) 10.
157. Civil Cause No. 55 of 1998 (MHC).
158. Miscellaneous Application No. 89 of 1994 (MHC).
159. Interviews with eight judges of the High Court and the Supreme Court, in Blantyre and Lilongwe (Feb. and July 2004).
160. See COURTS AND SOCIAL TRANSFORMATION IN NEW DEMOCRACIES, supra note 4.
161. Jackie Dugard, "The Court of Last Instance?": Analyzing Direct Access to South Africa's Constitutional Court by the Poor, paper presented to the Universidad Diego Portales Workshop on "Courts and the Marginalized" (Dec. 1-2, 2005)
162. Siri Gloppen, Social Rights Litigation as Transformation: South African Perspectives, in DEMOCRATISING DEVELOPMENT, supra note 101.
163. See COURTS AND SOCIAL TRANSFORMATION IN NEW DEMOCRACIES, supra note 4.
164. The literature on judicial decision making focuses mainly on when judges challenge political authorities, rather than their responsiveness to marginalized groups. Most attention is on U.S. courts, but efforts are also made to investigate judicial behavior in developing and transitional countries. On Malawi, see Peter von Doepp, The Problem of Judicial Control in Africa's Neopatrimonial Democracies: Malawi and Zambia, 120 POL. Sci. Q. 275 (2005).
165. Marc Galanter, Why the "Haves" Come Out Ahead: Speculations on the Limits of Legal Change, 9 LAW & SOC'Y REV. 95 (1974)
166. IN LITIGATION: DO THE "HAVES" STILL COME OUT AHEAD, (Herbert Kritzer & Susan Silbey eds., Stanford Univ. Press 2003).
167. Miscellaneous Cause No. 1119 of 2000 (MHC).
168. See also Malawi Law Society v. Banda 12 MLR 29 (year)
169. R v. Kunyambo 1 ALR (Malawi Series) 74 (year).
170. Interviews with judges of the High Court and Supreme Court of Appeal, supra note 121.
171. No. 2074 of 1995 (MSCA).
172. Other examples are Gondwe v. Attorney General, Civil Cause No. 261 of 1993 (MHC)
173. Waka v. Attorney General, Civil Cause No. 1855 of 1993 (MHC)
174. and Ella Banda v. Attorney General, Civil Cause No. 1727 of 1993 (MHC).
175. 16(2) MLR 541, 543 (year).
176. In Jere v. Malawi National Examinations Board, Civil Appeal No. 137 of 1997 (MSCA), senior officers from the northern region complained of unfair dismissal. Both the High Court and the Supreme Court found the dismissals unjustified, but neither mentioned the underlying politics of regionalism, analyzing the issues on purely legal-technical grounds.
177. Mhango v. University Council of Malawi, Miscellaneous Civil Cause No. 93 of 1993 (MHC), challenged a university affirmative action programme that, in effect, disadvantaged students from the northern region. Neither the plaintiffs' lawyers nor the High Court analyzed the issues in terms of the right to education or the politics of regional polarization in education, focusing exclusively on technical arguments;
178. similarly in Nasawa v. Attorney General, Miscellaneous Application No. 153 of 1993 (MHC).
179. In Valimahomed v. Designated Schools Board Civil Cause No. 211 of 1994 (MHC),
180. and Koreia v. Designated Schools Board, Civil Cause No. 1908 of 1995 (MHC), the court disregarded the racial element of the disputes, resolving them in terms of principles of contract and civil procedure.
181. See Wiseman Chirwa, Democracy, Ethnicity and Regionalism: The Malawian Experience, 1992-1996, in DEMOCRATISATION IN MALAWI, supra note 109, at 52, 61
182. Msaiwale Chigawa, Ethnic Discrimination in Education in Malawi: Study in Social Justice (1996) (unpublished D. Phil thesis, Oxford University).
183. See Budlender, supra note 1
184. COURTS AND SOCIAL TRANSFORMATION IN NEW DEMOCRACIES, supra note 4
185. Litigating Economic, Social and Cultural Rights, supra note 103.
186. MALAWI CONST. §111.
187. MALAWI CONST. §117.
188. Hansard Debates of Parliament, 566-1582, (Mar. 22, 1995).
189. S. AFR. CONST. 1996, §174(2). The same concern is also reflected in the sensitivity training of judges in equality matters undertaken in South Africa.
190. Budlender, supra note 1.
191. Interviews with judges of the High Court and Supreme Court of Appeal, supra note 121.
192. Statistics concerning judges origins are not available, but an assessment was done based on their names and personal knowledge about their origins.
193. Almost all judges of the High Court and Supreme Court of Malawi and all professional magistrates obtained their first degrees in law from the University of Malawi. See Malawi Justice Sector and the Rule of Law 85 (Open Society Initiative for Southern Africa 2005), at http://www.soros.org/resources/articles_publications/publications/ malawi_20060912/malawi_200609 12.pdf.
194. For a concise overview of the challenges, see Strategic Plan for Malawi 2003-2005 4-5 (Commonwealth Education Fund 2003), at http://www.commonwealtheducationfund.org/downloads/ Latest%20strategic%20plans/sp_malawi.doc.
195. See Wilson, supra note 84, on Costa Rica
196. and COURTS AND SOCIAL TRANSFORMATION IN NEW DEMOCRACIES, supra note 4, on India.
197. Ch. 5:01 (1967).
198. Civil Procedure Act, ch. 6:01, §10(1) (1946).
199. Mhango v. Attorney General, Civil Cause No. 338 of 1998 (MHC)
200. Alufandika v. Mgwadira, Civil Cause No. 154 of 1995 (MHC).
201. Administrator, Estate of Dr Banda, supra note 61
202. Peter von Knipps v. Attorney General. Civil Cause No. 11 of 1998 (MHC).
203. [J]udges do not have access to comprehensive Malawian jurisprudence, and as such the development of Malawi's own constitutional and common law principles is compromised" International Bar Association, Report of Visit to Malawi, 83 (2002) at http://www.ibanet.org/images/ downloads/HRIMalawiReport.pdf.
204. Malawi Judiciary, Development Programne, supra note 73, at 11.
205. In India, the middle class has effectively used public interest litigation to improve the environment in the cities, in many cases leaving the poor worse off, and thereby breeding skepticism toward public interest litigation. Marc Galanter & Jayanth Krishnan, "Bread for the Poor": Access to Justice and the Rights of the Needy in India 55 HASTINGS L.J. 789 (2004).
206. Malawi Housing Corporation Ups Rents by 90 Percent, 31 MALAWI NEWS ONLINE, June 23, 1997, at http://www.africa.upenn.edu/ Newsletters/mno31.html.
207. International Bar Association, supra note 147.
208. It is easier to affirm social rights and devise remedies where it is a matter of including new groups into existing schemes, allowing courts to rely on uncontroversial legal arguments. See Theunis Roux, Legitimating Transformation: Political Resource Allocation in the South African Constitutional Court, in DEMOCRATIZATION AND THE JUDICIARY: THE ACCOUNTABILITY FUNCTION OF COURTS IN NEW DEMOCRACIES (Siri Gloppen et al. eds., Frank Cass 2004).
209. Government of RSA & Others v. Grootboom & Others 2000 (11) BCLR 1169 (CC) at 72.
210. See Arthur Chaskalson, From Wickedness to Equality: The Moral Transformation of South African Law, 1 INT'L J. CONST. L. (I·CON) 590 (2003)
211. Frank Michelman, The Constitution, Social Rights, and Liberal Political Justification, 1 INT'L J. CONST. L. (I·CON) 13 (2003).