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Title: Judicial (in)activism in Malawi? : a critical analysis of the impact of constitutional jurisprudence on constitutionalism and the rule of law
Author: Kachale, Chifundo Jairus
Awarding Body: SOAS, University of London
Current Institution: SOAS, University of London
Date of Award: 2012
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The vital role of the judiciary in enhancing constitutionalism cannot be overemphasised. This attains particular significance in Africa where the failures of constitutionalism are well documented. This thesis explores the impact of constitutional jurisprudence on constitutionalism and rule of law in Malawi. Any such study, of necessity, contends with the concept of judicial activism. By drawing upon scholarship and jurisprudence from other common law jurisdictions this thesis proposes a basis for concluding that judicial activism may sometimes undermine constitutionalism. Though there is an independent judiciary in Malawi, constitutionalism has not fully materialised. In this context, it is proposed that the reason for such deficiency is not the lack of judicial activism on the part of the Courts in Malawi; rather an insufficient conception of the judicial role suited to the Malawian context. The study seeks to demonstrate that such insufficiency has resulted in the courts adopting a liberal democratic approach to constitutional adjudication in a jurisdiction more suited to a social-trust-based approach. To the extent that the liberal democratic approach is at odds with the norms, traditions and values indigenous to Malawi it has served to undermine constitutionalism. In this context, the thesis highlights other relevant studies establishing that the social-trust based paradigm has a legal basis in the Malawi Constitution as well as other primary governance legislations such as the Corrupt Practices Act. This thesis identifies the importance of judicial training tailored to defining the judicial role within the peculiar socio-political context in a specific jurisdiction in order to preserve the democratic imperative of autochthony at the root of legitimate constitutionalism. It is argued that without such a deliberate approach the judicial role (even through innovations of judicial activism) could end up being another elitist tool employed to hijack the democratisation agenda embodied in the current Constitutional order by reason of the courts advocating values which are alien to the Malawian socio-political order. While conceding that training alone can never produce certainty, it is proposed that in this case it would enhance a more appropriate appreciation of the peculiar judicial responsibility espoused under the Malawian constitution.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral