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Protectors or Pretenders? - Government Human Rights Commissions in Africa, HRW Report 2001




International Standards: The Paris Principles

Important Factors

Examining the Record in Africa

Innovative and Positive Contributions by Commissions

Regional Iniatives

The Role Of The International Community





Origin and Mandate

    Malawi held its first democratic multiparty elections since independence in 1994, following thirty years of authoritarian, one-party rule. President Bakili Muluzi and his United Democratic Front party came into power on a platform that promised to restore the rule of law and uphold human rights. Under the Muluzi government, the human rights situation in Malawi has improved significantly, although problems, such as police misconduct, remain.

    The Human Rights Commission was created as part of the transition to a pluralistic system. The Human Rights Commission was enshrined in chapter XI of the new constitution, enacted in 1994, which mandated its creation for "the protection and investigation of violations of the rights accorded by this Constitution." Section 131 of the constitution stipulates that the president will appoint the following seven persons to serve as commissioners: the two people holding the positions of the Law Commissioner and the Ombudsman, and five others to be nominated by the Law Commissioner and the Ombudsman, in consultation with civil society groups.

    The constitution also created two other institutions to deal with human rights issues: an Ombudsman and a National Compensation Tribunal (NCT). The Ombudsman is mandated to investigate and take legal action against government officials responsible for human rights violations and other abuses. The Ombudsman's powers were circumscribed somewhat by subsequent legislation that restricts the office's ability to access government records by requiring a warrant and a 3-day waiting period. In August 1999, the high court in Blantyre issued an injunction preventing the Ombudsman from investigating the June dismissal of four employees who alleged that they were dismissed because of their political views. In addition to the injunction, the High Court ruled that the Ombudsman's activities are subject to judicial review. The Ombudsman appealed this ruling. To address past abuses of human rights, the constitution created the NCT to adjudicate claims of criminal and civil liability against the former government and provide financial reparation. Very few of its claims have been settled due to lack of funds. As of February 1999, the NCT had registered over 8,700 claims, of which approximately 25 percent had been resolved. The NCT's lack of funds limits its ability to settle claims. At the same time, other large sums have been disbursed by the government to settle non-NCT lawsuits for similar human rights violations. However, the prominence of many of the recipients raised concerns of favoritism.145

    Notwithstanding the 1994 constitutional provision, the Human Rights Commission did not become fully functional until five years later in 1999. For two years after the passage of the constitution, there was no activity at all. In 1996, parliament finally included a small budget line for the Human Rights Commission. Once some funding was made available, Law Commissioner Justice Elton Singini and (then) Ombudsman Hon. James Chirwa were able to take up their responsibilities within the Human Rights Commission. They were, however, constrained by the lack of enabling parliamentary legislation setting out operating procedures as well as inadequate resources.

    Despite the circumscribed working conditions, the two serving commissioners set to work, and within six months had drafted enabling legislation for the functioning of the commission and submitted it to the attorney-general's office. For over a year, the pending legislation was passed from one drafting committee to another, with repeated promises of passage. Legislation on the membership, responsibilities and powers of the commission was finally passed by parliament in June 1998. This allowed for the appointment of the other commissioners and for the Human Rights Commission to become fully functional.146 In April 1999, the remaining five commissioners were finally sworn in. By August 1999, the commission staff were hired and the commission began its work on a full-time basis.

    Although the wait for the enabling legislation was unduly long, the Human Rights Commission Act is a well-drafted law that gives the commission broad powers to be effective and autonomous. Section 12 states that the "Commission shall be competent in every respect to protect and promote human rights in Malawi in the broadest sense possible and to investigate violations of human rights on its own motion or upon complaints received by any person, class of persons or body." Section 15 gives the Human Rights Commission broad powers to hear and obtain any necessary evidence, to conduct searches after obtaining a warrant issued by a magistrate, and to exercise "unhindered authority" to visit detention center "with or without notice." The law encourages the commissioners to "develop work relationships" with the NGO human rights sector and to foster cooperation with other government agencies on human rights issues. The commissioners can comment publicly on any human rights issue and make recommendations to the executive and legislative branch. Any person, including government employees, who interfere or obstruct the work of the commission can be subject to a fine and to imprisonment up to five years (Section 34).

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