The Malawi Law Commission


Arwa House, Private Bag 373, Lilongwe 3, MALAWI	TEL: (265) 782 822 / 442 / 841: FAX: (265) 782 532

The following articles on Law Reform and Law Revision previously appeared as Annex 4 and Annex 5 of a Strategic Plan for the Malawi Law Commission, which was prepared by Mr. Ray C. M Harris, Law Commission Adviser, engaged under the auspices of the Commonwealth Secretariat. The articles, which were written by Mr. Harris, are reproduced here due to their direct relevance to the work of the Law Commission.

LAW REFORM

Law Reform involves material and major changes or innovations in the corpus of the law, whether statutory or otherwise. Law Reform usually becomes necessary when laws become out of date, or are no longer working because of changed circumstances or are being abused in the existing circumstances. Law Revision, which is usually confused with Law Reform, is more concerned with the consolidation of the statute laws of a country. This is usually done with minimal amendments, as distinct from Law Reform that involves comprehensive change and major amendments. In normal usage, the word "reform" implies broad change that alters form or character for the better.

Presently in Malawi, there is a Law Commission that is empowered, inter alia, to do law reform. This Commission was established under Chapter XII of the Constitution. However, the law that deals in detail with the functions, duties and powers of the Commission is the Law Commission Act 1998 and can be said to be the enactment that regulates law reform in Malawi. As pointed out in the Strategic Plan under the heading "Mandate and Objectives", the Law Commissioner, who is appointed by the President on the recommendation of the Judicial Service Commission, must be a legal practitioner or a person qualified to be a Judge. The Law Commissioner, in consultation with the Judicial Service Commission, may appoint, as the need arises, other Commissioners on account of their expert knowledge in law or other matters relating to legal issues under review. It is noteworthy that when these appointments are being made the Law Commissioner is not restricted to only barristers or solicitors, university law teachers or those who hold or have held high legal or judicial office. Also, as indicated in the Strategic Plan, the Commission may employ support staff, subordinate to the Law Commissioner, as is considered necessary for the performance and exercise of its functions, duties and powers.

Sections 4 and 5 of the Law Commission Act 1998 read as follows:

4. (1) There shall be employed in the service of the Commission, subordinate to the Law Commissioner, such other support staff as the Commission shall consider necessary for the performance and exercise of the functions, duties and powers of the Commission, and who shall be officers in the public service appointed by the Commission.

4. (2) Such professional or specialised staff of the Commission as the Commission shall specify shall be appointed on such terms and conditions of service as Parliament may approve.

5. Members of the Commission, other than the Law Commissioner, appointed under section 133(b) of the Constitution shall receive such remuneration as Parliament shall specially or generally approve on the recommendation of the Commission,but such members shall not, by reason only of their appointment as such, be deemed to be officers in the public service."

Section 4, on the face of it, seems to be a useful provision in that it augments the independence of the Commission by empowering it to employ its support staff. This could ensure that the Commission obtains the best staff available to efficiently function as an institution of change in the Malawian society. The words "on the face of it," were used in light of the words underlined in section 4(1). If the words "and who shall be officers in the public service appointed by the Commission" are interpreted to mean that the Commission is restricted to employing only "public officers" the effectiveness of the provision is severely curtailed. This would mean that the Law Commission’s legal staff, for example, would have to be taken from a Public Service (as it is the world over), that struggles to obtain and retain its legal staff. This would not augur well for the Public Service or the Law Commission. However, if the words quoted from section 4(1) are interpreted to mean that when support staff are employed by the Commission (be it from the public or private sector), they shall be deemed to be public officers, then the provision makes sense. Such an interpretation seems plausible by a reading of the underlined words in section 5 above. Although it could be argued that if the Legislative Counsel wanted to create a legal fiction in section 4(1) he or she would have done so by the use of the words "shall be deemed to be". It is therefore recommended that if the Law Commission Act is amended the words "who shall be deemed to be" should be substituted for the words "who shall be" in section 4(1). This would certainly clarify the matter.

The functions of the Law Commission are very extensive. Section 135 of the Constitution and section 6 of the Law Commission Act 1998 reflect this. This includes inter alia to review the Laws of Malawi with a view to the systematic development and reform of the Law, to make recommendations for the fusion or harmonisation of customary law with other laws of Malawi, to make recommendations for the codification of any branch of the law or of any customary law, and to promote awareness of the laws and the Constitution by the public and by departments of the government and other authorities or bodies. An onerous task indeed in a fledgling democracy, but one that the Commission can accomplish, if it develops its human and technological resources and it receives the necessary support of the Government, the people and international and regional funding agencies.

The duties and powers of the Commission are set out in sections 7 and 8 of the Law Commission Act. In pursuance of its powers and functions, the Law Commission is obliged to prepare programmes of its work and is empowered to consult in a very comprehensive manner. This should ensure that when laws are reformed they would be in harmony with the needs and aspirations of the Malawian people. Besides having the power to conduct public or national consultations, the Commission may invite the Attorney General, on behalf of Government, or any Minister to refer to the Commission any matter for inclusion in its reform programme. This is a noteworthy provision because it is of paramount importance that the Law Commission and the Government of Malawi work in tandem in reforming the laws in the interest of the people. This requirement is well illustrated in the following paragraph.

By dint of section 7 (1) (g) of the Law Commission Act 1998, the Law Commission is obliged, as part of its reports to the Minister, to draft legislation which it considers to be necessary or required to implement its recommendations. The need to attach draft legislation to reports is important because most Government Drafting Departments are usually hard-pressed trying to deal with the day to day drafting requests of Government. Those reports by dint of sections 9, 10 and 12 of the said Act must be published in the Gazette, laid before Parliament, and eventually "(a)ny draft of principal legislation recommended by the Commission in any of its reports shall be referred by the Minister to the Cabinet for consideration and where Cabinet approves the draft legislation, with or without modification, such legislation shall-

be published in the Gazette as a Government Bill; and
be introduced in Parliament as a Government Bill by the Minister responsible for the matter in question."

Although section 14 (1) of the aforementioned Act puts the onus on the Government to adequately fund the Commission to enable it to function efficiently and to ensure its independence and impartiality, subsection (2) of the said section empowers the Commission to receive donations of funds, materials and any other form of assistance for the purpose of its duties and functions. In addition, under section 8 of the said Act the Commission is empowered, amongst other things, to produce and distribute any publication connected to its work and to collect the proceeds and royalties relating to the sale of such publications. The Commission may also sponsor or organise conferences, seminars, workshops and meetings and fix, receive and retain any registration, attendance or other fees in connection with its conferences, seminars, workshops or meetings. Under the Law Commission Act 1998, the Minister is empowered to make Regulations on the advice of the Commission for the better carrying out of the provisions of the Act. The Law Commission of Malawi, it is posited, is blessed with a stronger legal framework than most Commissions.

Before moving on to briefly deal with the Law Reform programmes recently completed and presently being pursued by the Law Commission, the importance of having an autonomous institution to deal exclusively with law reform and in time law revision cannot be overstated. This stems from the fact alluded to above that, in practice, the Chief Parliamentary Draftsman’s office is preoccupied with current and urgent legislation and hence is unable to devote the time and effort required for effective law reform. This is in no way to detract from the yeoman’s service rendered by such an office to the Government and people of Malawi.

Recently, the Law Commission of Malawi completed a thorough technical review of the Constitution of Malawi. The report has been submitted according to law with two Draft Bills to implement the recommendations. The Commission for the Technical Review of the Constitution represented an impressive group of Malawians, who dedicated themselves to their task over a period of three months. If the Draft Amendment Bills, with or without modifications, are enacted Malawi will be well served. The Constitutional text can then be finalised and the education and democratisation process can begin in earnest. There are many minor errors, be it textual or otherwise, that have been rectified in the Draft Bills. If the Constitution is perfected it will form the foundation of successful law reform and in time law revision. Constitutional Sovereignty is the legal grundnorm of Malawi; the Constitution is the supreme law of the country, it is its legal root of title. It is the law above all others that the people must learn to respect, if not reverence and by extension all the institutions that it creates. As pointed out in the programmes and work plans in the Strategic Plan, the Commission must now popularise the Technical Review of the Constitution Report with the help of the media, by discussing it at workshops and other forums. Obviously, the Commission must encourage the enactment, be it with or without modifications, of the Draft Bills. Thereafter the updated and consolidated Constitution should be reprinted in English, Chichewa and any other Malawian language considered necessary.

Prior to the work done on the tidying up of the Constitution, the Law Commission had done some reform work on the Penal Code, the Wills and Inheritance Act, the Malawi Citizenship Act, the Marriage Act and the Affiliation Act. The Commission’s findings and recommendations as regards those laws, in conjunction with five short Amendment Bills, appeared in the Commission’s first report in November 1996. Presently the Law Commission is working on quite a few important areas of law that require reform. There is a Criminal Justice Reform Commission that has just completed a thorough reform of the Penal Code. The report on the Penal Code includes a Draft (Amendment) Bill that reflects the amendments recommended by the Commission. This Commission has also recently completed a report on Bail Guidelines. The Criminal Justice Reform Commission is also commissioned to reform seven other areas of law, namely, the Criminal Procedure and Evidence Code, the Probation of Offenders Act, the Courts Act, the Traditional Courts Act, the Children and Young Person’s Act, the Dangerous Drugs Act and the Road Traffic Act.

There is also a Commission for the reform of the Army Legislation. This is a tremendous task in that the Army Act (to be renamed the Defence Force Act) and Subsidiary Legislation cover more than three hundred pages. However, work on this is well advanced. The Commission has sat and considered the required changes that are to be made to the Act and Subsidiary Legislation and the report relating thereto is now being drafted and finalised. This reform exercise, that is to say, the consolidated report on both the Principal and Subsidiary Legislation as well as the requisite Draft Legislation, should be completed during the course of the year 2000.

Work is also being done on the Legal Education and Legal Practitioners Act. An initial report and Draft Amendment Bill to regularise the law relating to the admission of lawyers qualified outside Malawi, while in exile or otherwise to practise in Malawi, is presently being worked on. After this is completed the entire Legal Education and Legal Practitioners Act is to be considered with a view to further reform.

The Law Commission, with the assistance of the Ministry of Home Affairs, is also working on a Lay Visitors Scheme, which is to work in tandem with the Community Policing Forums. To this end, a report is being finalised and the requisite Amendment Bill to the Police Act is being prepared. After the Police (Amendment) Bill is completed and hopefully enacted, thorough Regulations to implement the Scheme will be prepared.

There are a few other areas of law that are being considered for reform, for example, legislation relating to the Prisons, Malawi Citizenship, Immigration, Censorship and Control of Entertainment, and Police. Two Reform Commissions have in fact been constituted to deal with Censorship and Control of Entertainment legislation and Police legislation. The Law Commission is also to set up a Gender Unit to consider legislation and other matters relating to gender issues and to propose the necessary reform.

The above reflects what has been done and what is being done as well as what is expected to be done as regards law reform in Malawi in the immediate future. It is however recommended that three months before the end of every year the Law Commission should formally solicit suggestions for law reform from the Judiciary, the legal profession, Members of the Law Faculty, the Ministry of Justice, other Government Ministries and agencies and the general public. The last month of the year should be utilised to prioritise and finalise the law reform programme of the coming year. Obviously, the amount of reform work that can be accomplished by the Law Commission will depend on the number and capability of the available staff, especially in the area of research and legislative drafting. Presently the Law Commission is severely restricted in its research facilities. However, it is hoped that the Commission’s library will be developed with EU assistance in the near future. The Commission has recently been connected to the Internet under an EU computerisation project, which should greatly assist the Commission’s legal research capacity. In the words of a former Chief Justice of Australia, Dixon C.J., in a paper delivered at the tenth Convention of the Law Council of Australia - " Before reform of the law can be done, it is essential that its doctrines should be understood and that may mean investigation of the foundations of that law to be reformed." It is posited that it may sometimes be necessary for the Law Commission, in suitable cases, to assign research assignments to a particular member on a Law Reform Commission, who may possess the specialised knowledge or expertise required or to an institution, such as the Law Faculty.

Generally, thus far, the process of law reform used by the Law Commission is to set up Law Reform Commissions to reform specific areas of law. This has worked well but tends to be fairly costly in terms of both funding and time. As long as funds are available this process will be feasible, but it is submitted that certain subject areas may have to be dealt with in a more cost-effective manner. For example, a Law Reform Officer may be assigned to reform a subject area. That officer could immediately do some initial research on the current law in Malawi, if there is law covering that subject area, as well as on the state of the law in other countries. This could be done by visiting certain legal research websites on the Internet. The officer could also invite and receive proposals and submissions from persons and institutions with a vested interest, knowledge or experience in that subject area. Based on the proposals and submissions coupled with his or her research, the Law Reform Officer could write an initial report and Draft Bill, which could be circulated to the said interested persons and institutions for their reactions. Based on the reactions received, a final report and Draft Bill could be prepared. If funds are available, the Law Reform Officer could hold a one or two day workshop with those interested persons and institutions to refine the report and Draft Bill.

The above is not submitted as a criticism of the present process, but as a mere alternative process that may be used, especially when the research capacity of the Commission is improved and the Law Reform Officers become more experienced. Finally, it is submitted that law reform is a very satisfying process, not only for those who receive the benefits of the improved laws that impact positively on their lives, but also for those who have been involved in any part of the process.

LAW REVISION

The best way to define "law revision" is to distinguish it from "law reform". Many people fail to make a clear distinction between the two terms. When a law or laws in pari materia that cover a certain subject area have become antiquated or unsuitable with the circumstances and needs of the society as to require major changes, there is a need for law reform. On the other hand, when the regime of laws of a country have become untidy and inaccessible, not only to the average citizen but to the lawyer, because of years of diverse amendments to legislation, dictated by the exigencies of administration, there is a need for law revision. The primary objective of doing a law revision is to facilitate the users of the law, that is to say, judges and magistrates, officers of the various courts and registries, law enforcement officers, lawyers and the public generally. Ultimately, a law revision is to facilitate the administration of justice, the enforcement of law and order and the management of the public and private sector. The people of a country can only be said to be ruled by the "rule of law" when the laws are not only available but the extant law on any given subject is easily ascertainable. When a principal law is amended on numerous occasions discerning what the law is in relation to that law becomes difficult even for experienced lawyers and judges.

In that this article is not a presentation on the step by step process of doing a law revision, suffice it to say that the process of law revision involves -

the collecting of all the written laws in force in the country up to a particular date (usually referred to as the "revision date"),
incorporating all amendments into their respective principal laws as in force on the revision date,
tidying up the laws by eradicating errors, be they drafting, printing or otherwise, and adapting them,
reconciling inconsistencies,
simplifying and modernising the phraseology of the laws and generally improving their arrangement and form,
pruning away spent and obsolete and tautologous laws and provisions, and
publishing the country’s regime of laws in a consolidated revised edition.

These revised laws, which will be presented as a new Revised Edition of the Laws of the country, should be conveniently classified and indexed according to subject area, chronologically, as well as alphabetically. This will greatly facilitate the users of the revised laws.

Although a clear distinction was made above between law revision and law reform, it should be noted that a mere consolidation of the laws of Malawi, that is, the incorporation of all amendments into their respective principal laws as in force on the revision date, would not do justice to the present situation in Malawi. All revisions involve a certain amount of up-dating, overhauling and adapting of the laws that may approximate to minor, in some cases, major law reform. In doing a revision in Malawi, this would certainly be necessary especially in light of the new Constitution, which incorporates vast changes in the constitutional regime of the Republic. Multiparty democracy is now a reality in Malawi and human rights and other democratic principles such as the rule of law are deeply entrenched in the Constitution - a Constitution that is declared as the supreme law of the land. The provisions of this new Constitution will have a ripple effect on many laws of Malawi. This will therefore necessitate some law reform during the law revision process via a consolidated Law Revision (Miscellaneous Amendments) Bill or many small Bills, as the case may be. Obviously, where the amendments required are too substantial, in quantity or depth, they should be passed on to the law reform programme of the Law Commission. However, where amendments are manageable in quantity and not too complex, it is recommended that they be handled during the revision process.T

It should be noted that Law Revision Acts do not usually empower Law Revision Commissioners to make any substantive changes to the law. Generally, this must be done via a Miscellaneous Amendments Bill that must be enacted by the Parliament of the country. However, a substantial amount of amendment is usually necessary during a revision process in any developing country, especially if that country has undergone considerable constitutional change. Malawi is no exception. It should be noted however that the present Revision of the Laws Act of Malawi (Cap. 1:02) gives some leeway to the Law Revision Commissioner to vary the substance of the law. Section 12 reads: "Subject to section 11(2), nothing in this Act shall confer any power to make any alterations or amendments in the substance of any law." And section 11(2) indicates that in preparing law revision pages to be included in the Laws of Malawi "there shall be power to make such amendments, modifications, adaptations, qualifications and exceptions to the written laws as may be necessary or expedient for bringing them into conformity with the provisions of the Republic of Malawi (Constitution) Act, or the Constitution or any written laws replacing them or otherwise for enabling effect to be given to such provisions." If a complete revision of the Laws of Malawi were to be done, such a provision would be very useful.

Although the present Revision of the Laws Act of Malawi contains many useful provisions usually found in any Law Revision Act, it is in need of major amendment or replacement. This Act, which was enacted in 1968, only makes provision for one Law Revision Commissioner. Considering the magnitude of the job, the possibility of death during the revision process, the need for continuity and the need to have nationals as Commissioners even if outside expertise is required, it is always advisable to appoint a Law Revision Commission comprised of a Chairperson and two or more Revision Commissioners. Hence that the Commissioners be appointed under section 133(b) of the Constitution or under a newly enacted Law Revision Act this must be kept in mind.

Section 11 of the present Revision of the Laws Act of Malawi, which is the empowering provision in respect of preparing revision pages, is fairly thorough, but it is posited that other modern Law Revision Acts of the Commonwealth and the region should be studied to improve this provision.

Depreciation in money values is another matter to be considered. Over the past decade, depreciation in money values has been a reality not only in Malawi, but also throughout the world, especially in many developing countries. Under a Law Revision Act enacted by Parliament, the Law Revision Commissioners could be empowered to deal with this problem in accordance with a formula laid down in a Schedule to the Act. This formula could be worked out to deal with the diminution of court fees and fines brought about by the depreciation in money values. In certain countries such as Guyana and the Commonwealth of Dominica, the Law Revision Commission was empowered to increase court fees and fines in accordance with a specified formula. For example, where the law imposing the fine was made before the year 1962 the fine was multiplied by 10; where the law imposing the fine was made in or after the year 1962 but before 1966 the fine was multiplied by 8 etc. A suitable formula that suits the Malawian situation could be worked out and effectively implemented. To deal with the vagaries of devaluation the formula could be buttressed by empowering the relevant Minister, subject to affirmative resolution of Parliament, to further increase court fees and fines by Notice published in the Gazette. This could be extended to other monetary sums prescribed by law.

Another consideration, if the Revision of the Laws Act is to be revamped or redone, is the need to make provision for the proposed computerisation of the revised Laws of Malawi and by extension for employing a computer database in updating those Laws and making them available via modem to the general public. This must be provided for by law and the Revision of the Laws Act would be the best place to do it.

Having dealt with the question of having the revised Laws of Malawi on an electronic database, two things should be briefly dealt with. One is the fact that the Law Commission under section 7(1) (j) of the Law Commission Act 1998 is to be the repository of public information on the state of the extant Laws of Malawi as well as of International Instruments to which Malawi is a party. This therefore clearly reflects the need for the Law Commissioner and by extension the Law Commission to be directly involved in the doing of a revision of the Laws of Malawi as well as being involved in doing annual or biannual updates of those laws, both on its computer database and on hard copy. This will necessitate some minor amendment to the Law Commission Act to adequately provide for this, and require the training of at least two officers of the Law Commission to do the professional law revision work.

Another matter that must be dealt with is the question of International Instruments to which Malawi is a party. It is posited that those Instruments that bind the State could be considered for inclusion in a law revision. Treaties relating to Extradition, for example, could possibly form part of the chapter relating to Extradition. However, the logistics of doing this would have to be considered especially in light of the length of some of those Instruments.

In that a complete revision of the Laws of a country is a fairly lengthy and costly process and international assistance and funding may have to be accessed, it is important that some money is generated to ensure that revision supplements and updates can be done on an ongoing basis. The whole idea of developing an electronic database of the revised laws and publishing via the loose-leaf system is to ensure continuity and to minimise the cost of doing updates in the future. Usually a set of Revised Laws of between eight (8) to twelve (12) volumes is sold for about one thousand dollars (US$1,000.00). There is a market for Revised Laws in Universities, libraries and law firms throughout the World. Once you sell an initial set of your Revised Laws to any University, Law Library or firm you will automatically have a subscriber that will buy your annual supplements. Once a law revision is also stored on an electronic database the revised edition of the Laws of the country or certain key subject areas of it that may be of particular interest to certain users (for example a country’s commercial laws) may be released on CD. Many law users who use CDs would pay a fairly high price commensurate with the value of the replaced hard copies. CDs can be cut quite cheaply once you have the data on an electronic database. Update CDs can be obtained quite cheaply. Incidentally, it should be noted that the Law Commission is to receive a CD Writer (CD-R) that can cut CDs. The selling of the Revised Laws of Malawi or parts of it on a CD is also an option to be considered. Finally, as regards generating funds from the law revision process the idea of putting the Revised Laws of Malawi on the Internet is a viable option and one that should be considered. The Government of Malawi could have free access but others such as banks, lawyers and firms from within and outside Malawi could pay on some agreed basis as is the case on a number of websites. The data on the electronic database could be converted into HTML language that the Internet uses.

In closing it should be observed that while a complete revision of the Laws of Malawi is being done, the Law Revision Commissioners will be able to identify those laws or subject areas of law that require extensive reform that should be dealt with under the law reform programme. Hence, the interrelated nature of law revision and law reform is undeniable, in that the doing of a law revision will assist in identifying laws that require law reform. In addition, as indicated above, during the law revision process, minor but necessary reform will be done via Law Revision (Miscellaneous Amendments) Bills or a consolidated Law Revision (Miscellaneous Amendments) Bill. Also, in that there is a shortage of experienced Law Revisionists, outside expertise may be required to assist in doing a law revision in Malawi therefore a fresh insight may be brought to bear on the legal system and laws of Malawi. This is always useful for any country. Finally it is posited that the possibility of doing a complete revision of the Laws of Malawi is a real one, but if this is to be realised, a great deal of planning and work has to be done by the Law Commission and the Ministry of Justice.

E-mail: lawcom@sdnp.org.mw