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A FULL LOAF IS BETTER THAN HALF: THE CONSTITUTIONAL PROTECTION OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN MALAWI

Published online by Cambridge University Press:  18 April 2006

Danwood Mzikenge Chirwa
Danwood Mzikenge Chirwa
Affiliation:
LL.B. (Hons) (Malawi), LL.M. (Pretoria). Lecturer in Law, University of Cape Town. I would like to thank Karin Lehmann who made useful comments on an earlier version of this article. This article is dedicated to Prof. Sandra Liebenberg of Stellenbosch University, who stimulated my interest in economic, social and cultural rights and mentored me into the academic field.
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Abstract

CHIRWA, DANWOOD MZIKENGE, A full loaf is better than half: the constitutional protection of economic, social and cultural rights in Malawi, Journal of African Law, 49, 2 (2005): 207–241

The last two decades have seen a new wave of constitution-making in Africa as many countries changed from autocracy to democracy. Malawi followed the trend by adopting a new Constitution in 1994 to mark the end of a 30-year, dictatorial one-party regime. This Constitution breaks with traditional constitutions by recognizing economic, social and cultural rights. However, few of these rights are entrenched in the Bill of Rights as justiciable rights. The rest are enshrined as unenforceable principles of national policy. These provisions and the jurisprudence they have generated thus far are discussed critically. It is argued that while the Malawian Constitution deserves acclaim for recognizing these rights, the model adopted for protecting them fails to give full effect to the notion of the indivisibility of all rights and is not good enough for a poor country, which is also in transition to democracy. Not only was Malawi's choice of this model not preceded by a careful and reasoned examination of the existing models and the local circumstances, it was also made without wide public consultations. The ways, based on the existing constitutional provisions, in which the protection of these rights can be improved are explored.

Type
Research Article
Information
Journal of African Law , Volume 49 , Issue 2 , October 2005 , pp. 207 - 241
Copyright
© 2005 School of Oriental and African Studies.

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