Cabinet and ministries are sitting on pro-human rights and good governance Bills drafted after the Malawi Law Commission invested millions in research that dates back to 15 years ago, Nation on Sunday has established.

The proposed legislation includes the Impeachment of the President, Review of the Adoption of Children Act, Sentencing Guidelines, Review of the Chiefs Act, Spent Convictions Bill.

The delays have drawn criticism from legal and governance experts, saying it slows down the push for improved justice delivery and promotion of human rights.

Masanjala: Line ministries are responsible
for pushing for approva

The Malawi Law Commission, we have established, spends on average K120 million to review an Act of Parliament.

In an interview on Wednesday University of Malawi law professor Garton Kamchedzera said: “It is disturbing that the Law Commission spends significant resources and time to propose the law reforms only for the Bills not to be processed.

“These delays might result in the Bills being outdated before they are passed into law as they may no longer respond to present times.”

The Law Commission finalised the review of the President Impeachment Bill in 2007 but 15 years later it is still stuck at Cabinet.

Kamchedzera observed that the Bills’ stagnation is a result of governments favouring Bills that only promote their agenda.

“The challenge we have is that each government comes with its one agenda so it decides which Bills and ignores the rest. You would see that some of the Law Commission recommendations are stuck at the Ministry of Justice or at Cabinet level,” he said.

Kamchedzera further observed that some Bills are hastily approved at ministry and Cabinet levels because they are attached to some donors who pump in resources and lobby to fast-track their enactment.

“Those Bills that do not have backing, especially from donors, are not considered. Sadly, some of these Bills are more beneficial to the citizenry.

“What we need is that leaders should respect the will of the people and ensure that the Law Commission’s recommendations are part and parcel of our laws because they are a result of a thoroughly researched work,” he said.

Kamchedzera said the Impeachment of the President Bill is a significant one as it lays down procedures to be followed when Parliament wants to remove the President.

Hyping the importance of the Bill, he noted that despite the Constitution in Section 86 providing for the removal of the President, it is difficult to implement the impeachment without procedure.

“This explains why the presidents have been shunning the Bill. The fear is that they might end up hanging themselves. In all fairness, these are important bills that ensure transparency in the impeachment process,” he said.

The Constitution spells out that the procedure for impeachment “shall be as laid down by the Standing Orders of Parliament, provided that they are in full accord with the principles of natural justice.”

This was the centre of controversy when Parliament pushed for the impeachment of Bingu wa Mutharika only for the court to rule that the procedure was unconstitutional.

Centre for Human Rights and Rehabilitation executive director Michael Kaiyatsa said delays to pass Bills were affecting delivery of justice.

He cited the Review of the Prison Act as one of the critical proposed Bills that should have been reformed as it has shades of grey areas.

“Section 19(4) of the Constitution clearly states that no person shall be subjected to corporal punishment in connection with any judicial proceedings or in any proceedings before any organ of the State.

“The Constitution further states that any law that is

inconsistent with the provisions of the Constitution is invalid. It is therefore unacceptable to continue using the 1956 prison laws,” Kaiyatsa said.

Meanwhile, Ministry of Justice (MoJ) spokesperson Pilirani Masanjala in a written response signalled that line ministries are responsible for pushing for the approval of a majority of the Bills under question.

“When we get these reports from the Law Commission, we present them to Parliament as reports then when adopted by the House it’s up to the line [ministry] to process them as Bills by first presenting the same report to Cabinet and the attendant Bill process starts.

“From the time of presenting the report in Parliament it’s out of our hands unless it’s a reform under governance of which the Ministry of Justice is the line ministry,” he said.

Masanjala said the Review of the Adoption of Children Act was under the Ministry of Gender while the Review of Chiefs Act under the Ministry of Local Government.

The Ministry of Homeland Security was responsible for Review of the Prisons Act and Development of Legislation on Spent Convictions, which seeks to make some convictions not to form part of a person’s criminal record.

Masanjala further explained that the other stuck Bills are Development of Legislation on Sentencing Guidelines which falls under Judiciary and so was the Review of the Sheriffs Act (a) Sheriffs Bill.

“If you consider the process I’ve highlighted, the first question to ask the Law Commission is whether they indeed presented the report to MoJ, their parent ministry,” he added.

Ministry of Gender spokesperson Fred Simwaka said they finalised the paperwork on the Review of the Adoption of Children Act in October 2018 and submitted the Bill to the Cabinet.

“When it reaches that level that means the ministry is done with the process as from Cabinet it is supposed to go to the Ministry of Justice. But since it has taken time, we are trying to make a follow up with the Ministry of Justice and they are saying they had a lot on their plate.

“We are very desperate because it is a very good Bill because when it becomes an Act it will make a big difference. It is different from the previous Act where if somebody is adopted, you forget about that child as if he is dead,”he explained.

The Law Commission had not responded to our questionnaire as we went for press yesterday. However, in its 2019 report, the latest annual account of its operations, it documented that 30 bills were at the Cabinet.

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