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Sources of Law in Malawi 1. Constitution

The key sources of law in Malawi are: 1. The Constitution, which is the supreme law of the land. Any law inconsistent with the Constitution is invalid. 2. Legislation passed by Parliament, including statutes and subsidiary legislation. Statutes have primacy over other forms of law except the Constitution. 3. Public international law, including treaties that have been ratified by Parliament and customary international law not inconsistent with the Constitution. 4. Common law, case law, equity, and statutes of general application that were inherited from English legal traditions. 5. Customary law developed from long-standing practices of the people, including general customs applying nationwide and local customs.

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5K views3 pages

Sources of Law in Malawi 1. Constitution

The key sources of law in Malawi are: 1. The Constitution, which is the supreme law of the land. Any law inconsistent with the Constitution is invalid. 2. Legislation passed by Parliament, including statutes and subsidiary legislation. Statutes have primacy over other forms of law except the Constitution. 3. Public international law, including treaties that have been ratified by Parliament and customary international law not inconsistent with the Constitution. 4. Common law, case law, equity, and statutes of general application that were inherited from English legal traditions. 5. Customary law developed from long-standing practices of the people, including general customs applying nationwide and local customs.

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GIFT BALUTI
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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SOURCES OF LAW IN MALAWI

1. CONSTITUTION
i. Section 199 states that the Constitution shall be the supreme law of the land and there
shall be no legal or political authority except as provided by the Constitution.
ii. Section 5 states that any law or act of Government that is inconsistent with the
Constitution is invalid.

2. LEGISLATION
2.1 Legislation is defined as the law made by or under a power given by Parliament.
The Law that is made by Parliament is called Primary Legislation or statutes or
Acts of Parliament. For a statute to be enacted the first stage is presentation of a
bill in parliament. The bill may be a government bill (this is a bill that is presented
by the government) or a private member’s bill (a bill presented by a member of
parliament) After deliberating on the bill it is put to a vote and if it gets the requisite
majority vote it is taken to have been passed. After that the passed bill goes to the
President for his assent. Once the President assents to the bill it gets gazzetted. The
bill becomes law the moment it gets gazzetted. Examples of statutes include the
Penal Code, Prevention of Domestic Violence Act, Marriage, Divorce and Family
Relations Act and Malawi University of Business and Applied Sciences Act.
2.2 The law that is made under a power given by Parliament is called Secondary or
subsidiary or delegated legislation. A statute sometimes gives power to public
officers or Government Departments or public institutions to make laws. Examples
include regulations made by District or City Councils under the power given to
them by the Local Government Act and rules and regulations made by MUBAS
under a power given by the Malawi University of Business and Applied Sciences
Act.
2.3 Section 200 of the Constitution makes statutes a source of law in Malawi. It states
as follows;
1. Except in so far as they are inconsistent with this Constitution, all Acts of
Parliament, common law and customary law in force on the appointed day
shall continue to have force of law, as if they had been made in accordance
with and in pursuance of this Constitution.

ii. Section 48 (2) of the Constitution provides that Acts of Parliament shall have primary
over all other forms of law except the Constitution

3. PUBLIC INTERNATIONAL LAW.


i. This is the law that governs the relationship between states. It is a source of law
under section 211 of the Constitution. The Section provides as follows;
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.

ii. From the above it will be observed that Public International Law takes two forms
namely Treaties and Customary International Law. Treaties are agreements between
states. Examples include SADC treaty and COMESA treaty. For a treaty to be part
of our law it must first be ratified by Parliament. Customary International Law is the
law developed from long standing practices of states.

4. COMMON LAW AND CASE LAW


Section 200 of the Constitution makes common law a source of law. Common Law
refers to customs that apply to the whole of England. It is also referred to as case law
mainly because to find common law in England reliance has largely been placed on
judgments of the Courts in England. Case law is also a source of law by virtue of section
11 (2) (c) of the Constitution. The provision provides as follows;
“In interpreting the provisions of this constitution a court of law shall where
applicable have regard to current norms of public international law and comparable
foreign case law.”

As stated case law refers to law made by judges when they are deciding cases.

5. EQUITY
These are principles of fairness developed by the court of chancery. Decisions in the
court of chancery were based on conscience and fairness. Common law was in some
instances rigid and harsh. Equity was thus developed to reduce such rigidity. Equity is a
source of law by virtue of section 200 of the Constitution. Where equity and common
law are in conflict equity prevails.

6. STATUTES OF GENERAL APPLICATION


Statutes of general application are statutes that were applicable to the whole of England
as of 11th August, 1902. During colonialism the colonial government declared that all
laws that were applicable in England as of 11 th August, 1902 were part of the laws of
Nyasaland. Statutes of general application remain a source of law in Malawi by virtue of
section 200 of the Constitution. Under that section all laws that were part of the laws of
Malawi before the commencement of the Constitution continue to have the force of law
in our country. Statutes of general application, common law and equity are called
received law because they originate from England and not Malawi.

7. CUSTOMARY LAW
Customary law is the law developed from long standing practices of the people. Simply
put it refers to customs. Customary law is a source of law by virtue of section 200 of the
Constitution. Customary law has two categories namely
a. General customs which are customs that apply to the whole country and
b. Local customs which are customs that apply to a particular area.
Some of the areas where customary law is largely applied are issues relating to chieftaincy and
customary marriages.

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