14/06/2012

CHANCELLOR COLLEGE
Faculty of Law,

Law Dip 110 : LEGAL SYSTEMS AND METHODS

(Legal systems and research methods)

Law Dip 101 : INTRODUCTION TO LAW

CHANCELLOR COLLEGE
Faculty of Law,
Sunduzwayo Madise
Lecturer
(Room 7)
Mobile : +265999911231 / +265888328404
Email : [email protected] / [email protected]
January, 2012

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Law Dip 101

COURSE OVERVIEW
Duration : one year
Number of lectures per week : 3
Number of hours per week : 7
Faculty of Law Tutorials / practicals : inbuilt in CLE
Method of assessment :
Continuous assessment 20%/40%
Final examinations 80%/60%

Law Dip 101

AIMS OF STUDY
To introduce to students basic legal
structures, concepts and techniques
Faculty of Law in order to provide them with
background knowledge and skills
they need throughout their law
studies and afterwards

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Law Dip 101

OBJECTIVE OF THE STUDY
By the end of the course, students should
be able to:
• Articulately discuss the nature of law
and the major schools of legal
thought
Faculty of Law
• Describe the nature and structure of
the Malawi legal system, including its
sources of law and institutions
• Use the relevant lawyer’s techniques,
including legal research and
communication

Law Dip 101

TOPICS
1. Introduction to the course
• Aims, objectives, scope and
expectations
• Introduction to the study of the law
• The nature and function of law
Faculty of Law 2. The legal system
• Definition of the legal system
• The structure of the legal system
3. History of the Malawi legal System
• Pre-colonial
• Colonial
• Post colonial/Independence/post-
independence (One party / multi party)

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Law Dip 101

4. Sources of Law
TOPICS • The Constitution
• Statutory law
• Common law & Equity
• Customary law
• International law
Faculty of Law

5. Branches / classification of the Law

• Private law
• Public law
• Criminal law
• Civil law

Law Dip 101

6. Techniques of legal study – Case law

TOPICS
• Judicial precedent
o Judicial precedent in English law
o Judicial precedent in Malawi
• Constitution position
Faculty of Law o Section 11 of the Constitution
• How to read cases – learning the law
from decided cases
• Ratio decidendi
• Obiter dicta
• Courts as law makers (?)
• Theories of judicial decision making

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Law Dip 101

7. Statutes and statutory interpretation
• Nature and forms of legislation
TOPICS • Functions of legislation
• Types of legislation
• Operation of statutes
• Interpretation and construction of statutes –
generally
o The Literal Rule
Faculty of Law
o The Golden Rule
o The Mischief Rule
o Ejusdem Rule
o Penal provisions are construed narrowly
o Constitutional provisions are construed
purposefully
• General Interpretations Act
• Presumptions of construction
• Material aids to construction

Law Dip 101

8. The courts and other legal institutions
• History of courts in Malawi
TOPICS • Court structure
• Jurisdiction of courts Access to justice /
remedies
• Other institutions
o Ombudsman
Faculty of Law
o Human Rights Commission etc.

• Other tribunals
o The IRC
o Arbitration
o Mediation
o Traditional courts
o (Chiefs ?)

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Law Dip 101

9. Legal research
• Types / functions of legal research
TOPICS o Practice related
o Academic related

10. The legal profession

Faculty of Law
• Types of legal professions
• Role of lawyers
• Admission to practice in Malawi

11. Legal theories

• Introduction to legal thought and
schools of thought
• Law and social justice

Law Dip 101

MAIN TEXT BOOKS
• Waller FKH Durham, DP Cases and
Materials on the Legal process (1991) Law
Book Co.
• William G, Learning the Law (1998) Stevens
• Philips The first book of English Law (1987)
Faculty of Law
• Sweet & Maxwell Brodney, A et al How to
study Law, Sweet & Maxwell (1986)
• Machika MRE, The Malawi Legal System :
An introduction (1983) (unpublished)
• Von Benda-Beckmann F Legal pluralism in
Malawi : historical development 1858 –
1970 and emerging issues (2007)
• Kachere Monographs No. 24

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Law Dip 101

STATUTES
• The Constitution of Malawi, 1994
• The Courts Act, cap 3:02
• Legal Education and Legal Practitioners Act
Cap 3:04
• General Interpretations Act
Faculty of Law
• Any other relevant statutes

Law Dip 101

ADDITIONAL MATERIAL
To be recommended from time to time
Faculty of Law (including but not limited to cases!)

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Law Dip 101

ADDITIONAL MATERIAL
To be recommended from time to time
Faculty of Law (including but not limited to cases!)

Law Dip 101

Faculty of Law

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Law Dip 101

1. Introduction to the course

• Aims
• Objectives
• Scope
• expectations
Faculty of Law
• Introduction to the study of the
law
• The nature and function of law

Law Dip 101

Introduction Introduction to the study of the law

to the study
of law

What is law ?
Faculty of Law

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Law Dip 101

Introduction
to the study • Do most Malawians have
of law
understanding of the legal
system on which the principal of
rule of law is based?
Faculty of Law

• For most Malawians their

understanding of the law
emanates from newspaper
articles with screaming headlines

Law Dip 101

Introduction
to the study “Gay couple jailed for
of law
14 years!”

Faculty of Law
“Man with private parts
(that are not his)
sentenced for 10 years!”

“Murderer to hang!”

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Law Dip 101

Introduction Introduction to the study of the law

to the study
of law • Most of the cases that are reported
in the newspapers (and usually
make ‘interesting’ news) are
Faculty of Law usually of a criminal nature.
• It is not in the least surprising that
when law is mentioned, most
Malawians only think of the
criminal law and the courts that
deal with these cases

Law Dip 101

Introduction
to the study
of law

But what is law ?

Faculty of Law

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Law Dip 110

Introduction Law includes laws

to the study
of law • The term “law” includes laws
such that when one says this is
the law of Malawi, it may be
Faculty of Law
referring to a specific provision in
an Act of Parliament or the whole
Act or indeed the whole
collection of laws.

Law Dip 101

Introduction
to the study • One thing that one must never
of law
attempt to do is to give a one
sentence definition of the law!
• The law is understood differently by
Faculty of Law
different people depending on
different situations.
• What can be certain is the fact that
law affects our lives in many
aspects.

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Law Dip 101

Introduction Introduction to the study of the law

to the study
of law
Professor Ronald Dworkin
“we live in and by the law. It makes us
who we are”
Faculty of Law
Ronald Dworkin The Law’s Empire,
Harvard University Press, 1993, vii

Law Dip 101

Introduction
to the study
of law
With the hope of reaching some
understanding of what the law is, to
start on the (sometimes frustratingly)
Faculty of Law
long (and often unsatisfactory) times
journey of attempting to define law, let
us start by looking at types of law.

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Law Dip 101

Introduction
to the study
of law
TYPES OF LAW

Law is generally divided into two broad

Faculty of Law
categories :

• International and National Law

• Public and Private Law

(Within the National Law)

Law Dip 101

INTERNATIONAL LAW
Introduction
to the study • concerned with international disputes
of law
such as disputes between and amongst
nations.

Faculty of Law • also regulates international relations

• Most international law comes from

treaties, conventions, charters
agreed by nations

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Law Dip 101

INTERNATIONAL LAW
Introduction
to the study
Examples of International Law :
of law • The United Nations Charter,
• The Universal Declaration of Human
Rights (UDHR)
• The Constitutive Act of the African
Faculty of Law
Union
• The Treaty creating the SADC
• The Vienna Convention
• The Convention on the Rights of the
Child
• The Treaty creating the ICC
• etc.

Law Dip 101

Introduction
INTERNATIONAL LAW
to the study Under Section 211(1) & (2) of the Constitution of
of law
Malawi, the Republic of Malawi is bound by any
international agreements that have been entered
into by the country unless otherwise provided by
Faculty of Law an Act of Parliament.
• However being bound is not the
same as being part of the law of
Malawi.
• In fact international law is generally
not law in Malawi unless
domesticated through an Act of
Parliament

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Law Dip 101

Introduction
INTERNATIONAL LAW
to the study
of law Chung Chi Cheung v R [1939] AC 160 (PC) 167-68,
where Lord Atkin in the Privy Council stated:

Faculty of Law
“It must always be remembered that, so far, at
any rate, as the courts of this country are
concerned, international law has no validity save
insofar as its principles are accepted and adopted
by our own domestic law. There is no external
power that imposes its rules upon our code of
substantive law or procedure.”

Law Dip 110

However the UDHR has been accepted as

Introduction part of the law in Malawi due to its
to the study
of law attendance of international customary law
See S.211 of the Constitution & Chihana v
The Republic (1992) 15 MLR 86 where the
Faculty of Law Supreme Court said :
“We accept that the Universal Declaration of
Human Rights is part of the law of Malawi
and that the freedoms which that
Declaration guarantees must be respected
and can be enforced in these Courts”

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Law Dip 101

• This is because S.211(3) of the Malawi

Introduction Constitutions states that customary
to the study
of law international law, unless inconsistent
with the Constitution or an Act of
Parliament shall form part of the law of
Faculty of Law Malawi.
• The Constitution [S.11(2)(c)] also
calls upon the Courts in Malawi
when interpreting the Constitution
to have regard, where applicable, to
current norms of public
international law

Law Dip 101

• Although international law is sometimes

Introduction subdivided into public and private
to the study
of law international law, international law as
used here refers to public international
law.
Faculty of Law
• The Constitution [S.11(2)(c)] also
calls upon the Courts in Malawi
when interpreting the Constitution
to have regard, where applicable, to
current norms of public
international law

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Law Dip 101

NATIONAL, DOMESTIC OR MUNICIPAL LAW

Introduction
to the study • the law which applied within a country.
of law

• Therefore the national law of Malawi has

certain territorial limitations and can only be
applied in the Malawian courts
Faculty of Law

• Each country traditionally has its own national

law (though most CW countries were once
part of the English legal system, and there are
usually wide differences between these
national laws.

Law Dip 101

Examples of national law

Introduction
to the study • The Constitution
of law • the Penal Code
• The Prevention of Domestic Violence Act
• The Divorce Act
• The University of Malawi Act
Faculty of Law
• etc.
 In terms of hierarchy, the Constitution has
placed the Constitution as Supreme - s.199
In terms of Constitutional theory, this means
that Acts of Parliament although coming below
the Constitution are above all other laws.

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Law Dip 101

Introduction
to the study PUBLIC LAW
of law
• Broadly speaking, public law involves the State
or Government in some way.

Faculty of Law • There are three main types of public law :

 Constitutional law
 Administrative law
 Criminal Law

Law Dip 101

Introduction
to the study
of law PRIVATE LAW
• concerned with disputes or issues between
private individuals or business entities.
Faculty of Law
• It is also sometimes called civil law (but must
not be confused with the Civil Law of
Francophone countries).

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Law Dip 101

PRIVATE LAW
Introduction • The main categories are those dealing with :
to the study
of law  Contract (formation & regulations of all forms of
contracts & their breaches etc.)
 Tort (civil wrongs ; negligence, nuisance, trespass,
defamation etc.)
Faculty of Law  Family Law (marriages, family disputes, custody
of children, succession & wills etc.)
 Company Law (formation, regulation and winding
up of companies)
 Employment Law (all aspects of employment
from engagement to redundancies & unfair
dismissals etc.)
 Other Law (relating to Land, Intellectual Property
& Copyright etc.)

Law Dip 101

Diagrammatic representation of the

Introduction braches of law
to the study CONSTITUTIONAL LAW
of law
PUBLIC LAW ADMINISTRATIVE LAW

CRIMINAL LAW

NATIONAL
LAW
Faculty of Law LAW
CONTRACT LAW

LAW OF TORTS

PRIVATE LAW FAMILY LAW

COMPANY LAW

INTERNATIONAL EMPLOYMENT LAW

LAW

OTHER LAWS

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Law Dip 101

Introduction
to the study
of law

But what is law ?

Faculty of Law

Law Dip 101

Introduction
to the study
DEFINITION OF LAW
of law
• Legal Philosophers have over the centuries
attempted to define the law

Faculty of Law
 To understand these attempts to define the law,
it is important, to look at, some of the leading
legal theories that have defined the law and the
well known proponents of these theories.

 A deep study of legal philosophy is outside the

scope of this book and an attempt is here made
to provide the introductory part of these
theories

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Law Dip 101

POSITIVISM
Introduction
to the study • Legal positivism is the view that the law is
of law defined by the social rules or practices that
identify certain norms as laws
• Historically, the most important legal positivist
Faculty of Law theory was developed by Jeremy Bentham,
whose views were popularized by his student,
John Austin

• Austin defined law as being a command issued

from a superior (the state) to an inferior (the
individual) and enforced by sanctions.

Law Dip 101

POSITIVISM
Introduction • Austin's version of legal positivism was based
to the study
of law on the notion that the law is the command of
the sovereign backed by the threat of
punishment
• Austin said that a proposition of law is true
Faculty of Law
within a particular political society if it correctly
reports the past command of some person or
group occupying the position of sovereign in
that society.
• He defined a sovereign as some person or
group whose commands are habitually obeyed
and who is not in the habit of obeying anyone
else.

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Law Dip 101

Introduction
to the study NATURAL LAW THEORY
of law
Classical positivism must be seen against
what is referred to as natural law .
Faculty of Law
• Natural law theory is based on the belief
that there is an embodiment of some
elementary principles of justice which
are inherent in nature and because they
are inherent, they are immutable.

Law Dip 101

Introduction NATURAL LAW THEORY

to the study
of law
• The essence of natural law is therefore
that just laws are immanent in nature
(that can be claimed as discovered but
Faculty of Law
not created by such things as a bill of
rights) and/or that they can emerge by
natural process of resolving conflicts (as
embodied by common law).

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Law Dip 101

Introduction NATURAL LAW THEORY

to the study
of law
• Natural Law theory says that law is
immanent in us as creatures created by
God.
Faculty of Law • Law is supremely ordained (by God) and
discerned by (us by) reason
• The earliest proponent of the theory
was St. Thomas Aquinas
• Lex injusta non est lex (an unjust law is
not a true law) in which 'unjust' is
defined as contrary to natural law

Law Dip 101

Introduction
NATURAL LAW THEORY
to the study
of law
The Thomist tradition was two-fold:
(1) that there are certain principles of true
morality or justice, discoverable by
human reason without the aid of
Faculty of Law
revelation even though they have a
divine origin;

(2) that man-made laws which conflict with

these principles are not valid law : lex
injusta non est lex

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Law Dip 101

Introduction
NATURAL LAW THEORY
to the study
of law
Natural law theory led to natural rights
theory, whose chief exponent was John
Locke. In Locke’s body politic, though the
Faculty of Law
people gave up some of rights, they still
retained the “natural rights to life, liberty”.
Shestack calls it the theory most closely
associated with human rights

Law Dip 101

POSITIVISM & NATURAL LAW THEORY

Introduction
to the study
of law
• Classical positivism vehemently denies
the notion of natural rights and natural
law.
Faculty of Law • To the positivist, law is simply and
strictly so called (Black letter law)

• It is what is posited on the statutes

(positive law). The issue of just law and
what the law ought to be is of no
consequences. The law is as it is.

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Law Dip 101

Introduction
to the study
of law POSITIVISM & NATURAL LAW THEORY

• The classical statement that “Law is

Faculty of Law
divinely ordained but it is
discoverable by reason” from
Thomas Aquinas is met with
“nonsense on stilts “from Jeremy
Bentham

Law Dip 101

POSITIVISM & NATURAL LAW THEORY

Introduction • Because the positive law is central to the doctrine
to the study of legal positivism, the notion of sovereignty is
of law
supreme (as it is the sovereign that enacts the law
– whatever the actual process may be).
• On the other hand, human rights tend to limit
sovereignty.
Faculty of Law
• It needs to be noted that classical positivism
recognizes no such thing as international law.
These are mere rules of positive morality set or
imposed by opinion. Professor Hart says : The
problem with international law is that it lacks a
legislature, states cannot be brought before
international courts without their prior consent,
and there is no centrally organized effective system
of sanctions : Hart, Concept of Law

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Law Dip 101

Introduction to the study of the law

But what is law
“The Courts are the capitals of law’s empire,
and judges are its princes, but not its seers
Faculty of Law
and prophets. It falls to philosophers, if they
are willing, to work out law’s ambitions for
itself, the purer form of law within and
beyond the law we have.”
Dworkin R, Law’s Empire 407

Law Dip 101

Introduction to the study of the law

“Law is not exhausted by any catalogue of rules or
principles, each with its own dominion over some discrete
theatre of behavior. Nor by any roster of officials and their
powers each over part of our lives. Law’s empire is defined
by attitude mainly in appellate courts, where it is dressed
Faculty of Law
for inspection, but it must be persuasive in our ordinary
lives if it is to serve us well even in court. Law’s attitude is
constructive : it aims, in the interpretive spirit, to lay
principle over practice to show the best route to a better
future, keeping the right faith with the past. It is, finally, a
fraternal attitude, an expression of how we are united in
community though divided in project, interest, and
conviction. That is, anyway, what law is for us : for the
people we want to be and the community we aim to have.”
Dworkin R, Law’s Empire 413

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Law Dip 101

Introduction
to the study
of law

So what is law ?
Faculty of Law

Law Dip 110

Introduction
to the study
• Remember!
of law  Never attempt to do is to give a one
sentence definition of the law!
 The law is understood differently by
Faculty of Law
different people depending on
different situations.
 What can be certain is the fact that
law affects our lives in many
aspects.

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Law Dip 101

Introduction
to the study
of law

In fact it is easier to define law by

defining what it is not!
Faculty of Law

Law Dip 101

The nature and function of law

(1) Nature of Law

(a) normative: obligatory on human conduct

Faculty of Law (b) institutionalised

(c) coercive

(d) general application

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Law Dip 101

(2) Functions of Law

Nature &
function of (a) Law as preservation of order
law -public order law, criminal law
(b) Law as platform for human co-operation
-law of contract
Faculty of Law (c) Law as medium of dispute resolution
-law of tort
(d) Law as tool of domination
-counter-revolutionary offences
(e) Law as mechanism for social engineering
-land registration

Law Dip 101

(2) Functions of Law

Nature &
function of (f) Law as bulwark of morality
law -decriminalizing homosexual acts between
consenting adults
(g) Law as regulation of governmental powers
Faculty of Law -constitutional law, administrative law
(h) Law as protection of individual freedom
-bill of rights, anti-discrimination legislation
(i) Law as attainment of justice
-rules of natural justice, bill of rights, social
security law

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Law Dip 101

Nature & (3) Limits of Law

function of
law
(a) What law could not achieve
-e.g. love

Faculty of Law (b) What law should not interfere with

-private life

(c) Law may not be the best option

Law Dip 101

Groups tasks : into 6 groups

Nature &
function of
law
(4) Law and …

• What is the Hart-Devlin debate?

Faculty of Law (a) Using the Hart-Devlin debate critically discuss

whether the law should be used to regulate
conduct in:
i. The “Aunt Tiwo” case
ii. Roe v Wade
iii. “Action Girl”

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Law Dip 101

Nature &
function of b) Law and morality
law I. Is law = morality?
II. Does the law come from morality?
III. Should law be used to enforce morality ?
Faculty of Law
c) Law and religion
I. Is the law = religion?
II. Does the law come from religion?
III. Should law be used to enforce religious
values ?

Law Dip 101

d) Law and culture

Nature & I. Is the law = culture?
function of II. Does the law come from culture?
law
III. Should law be used to enforce culture ?

e) Law and custom

Faculty of Law I. Is the law = custom?
II. Does the law come from custom?
III. Should law be used to enforce custom
IV. Should custom be used to enforce the law?

f) Law and politics

I. Is the law ‘politics disguised’?
II. Does the law come from politics?
III. Should law be used to ‘define’ politics?

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Law Dip 101 g) Law and power

I. Is the law = power?
Nature & II. Does the law come from ‘power’?
function of III. Should law be used to enforce power?
law

h) Law and justice

I. Is the law = justice?
II. Does the law come from ‘justice’?
Faculty of Law
III. Should law be used to ‘define’ justice?
IV. Does justice define the law?

i) Law and society

I. Does law come from the society?
II. Should law be used to ‘define’ societal
behaviour?
III. Does the ‘type’ of society determine the ‘type’
of law?

Law Dip 101

Nature &
function of
law

Faculty of Law

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Law Dip 110

2. The legal system

A. Definition of the legal system

A legal system can be defined as the

Faculty of Law totality of all applicable laws and
institutions in a particular country or
jurisdiction.

Law Dip 101

The legal • A legal system is sometimes thought in

system terms of sovereignty. It should, however,
be pointed out that this is not a
guarantee.
• There can be more than one legal system
in one country or jurisdiction i.e. the UK,
Faculty of Law where there are both Scottish and
English legal systems or the US where
each State has its “own legal system”

• Question : Does Malawi have one

legal system? Explain your answer

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Law Dip 101

The legal
system
There are two aspects of legal system and
these are:

Faculty of Law
1. Applicable laws

2. Institutional/Legal Structures

Law Dip 101

The legal
system 1. Applicable laws

Such as :
• Common law
• Civil law
Faculty of Law • Romano-Dutch Law
• Customary law
• Mixed law (achieved through increased
interaction between states).
• These types of law have their own styles
of adjudication.

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Law Dip 101

The legal
system Common law
• In common law the main source of law is
the courts.
• This is why the common law system also
has its own style of adjudication, where
Faculty of Law
the role of the court is supposed to be
impartial and neutral.
• It leaves the parties to debate a matter
before the court leaving the court to be
an impartial arbiter of the legal issues.
• This approach is called “adversarial‟
system.
• Common in many Anglophone countries

Law Dip 101

The legal Civil law

system • In contrast to the common law system,
the main source of the law in the civil law
system is “codes”.
• In terms of style of adjudication the civil
law system also approaches judicial
Faculty of Law decision–making in a different fashion.
• Here the approach of the court is active
i.e. the judge/magistrate (judicial officer)
takes an active role in the proceedings.
• This means the civil law system is not
adversarial. It is called “inquisitorial”
• Common in many Francophone
countries and much of continental
Europe

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Law Dip 101

The legal Romano-Dutch Law

system
• It is much similar to the Common
law in its aspects but used
principles from Roman & Dutch law.
• It is also an adversarial system.
Faculty of Law
• Common in Dutch colonies and
those influenced by the Dutch and
in Africa by South Africa.
• The whole of Southern Africa
except Malawi & Zambia has
Romano-Dutch Law.

Law Dip 101

The legal Romano-Dutch Law

system
Caveat : South Africa has a legal system that
includes :
• South African Constitutional & statutory law
• Romano-Dutch law
• English law
Faculty of Law • Common law (of South Africa although its
origins may be traceable to the English
common law)
• Customary law (part of the law by the
Constitution)
• Question : Does South Africa have
one legal system or plurality of legal
systems? Explain your answer

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Law Dip 101

The legal Shariah (Islamic Law)

system
• Found predominantly in Islamic countries
• Only found in
o North Africa
o Middle East
o Euro-Asia
Faculty of Law • May sometimes be applied side by side with
common law, civil law or a mixture of these

Law Dip 101

The legal Customary law

system
• In customary law the main source of law
is the accepted practices of the society
which they regard as law.
• In this system the court is not
Faculty of Law
adversarial.
• The Court actively takes part in the
proceeding and often seeks
reconciliation between the parties.
• Found in almost every country of the
world and some of its may be
transnational

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Law Dip 101

The legal Map of the major legal systems (10 years ago)
system

Faculty of Law

Civil law
Common law
Bijuridical (civil and common law, also known as
mixed jurisdiction)
Customary law
Shariah

Law Dip 101

The legal Map of the major legal systems (present)

system

Faculty of Law

Civil law
Common law
Bijuridical (civil and common law, also known as
mixed jurisdiction)
Shariah

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Law Dip 101

The legal
system 2. Institutional/Legal Structures
A legal system cannot be a legal system
without the institutions or structures for its
operations.
Such institutions may include
Faculty of Law • Parliament (legislation)
• Courts (adjudication) – judicial officers,
officers of the court and support staff.
• People (litigants and “spectators”)
• law enforcement (& investigating)
institutions such as courts (i.e. Sherriff's
office), police, prisons, ombudsman,
human rights commission etc.

Law Dip 101

The legal
system B. Existence and maintenance of a Legal
System
• Legal systems regulate their own
existence.
• The criterion of existence of law is
Faculty of Law
internally regulated which helps to
tell that a rule is part of the legal
system and the law.
• There are two theories in respect
of existence and maintenance of
legal systems.

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Law Dip 101

The legal John Austin’s theory:

system
• According to his theory legal systems
exist because they have sovereignty.
• Legal systems also exist because of
the qualities of the sovereign.
Faculty of Law • Austin says the sovereign is a
supreme legislature since he is
habitually obeyed.
• He also says the legislature is above
all the subjects of law and while it is
obeyed, it does not obey anybody.

Law Dip 101

The legal Hans Kelsen’s theory

system
• Kelsen’s theory states that a legal
system exists not virtually because it
is independent but because it is
efficient (efficacious) and a system is
Faculty of Law efficacious (a) if the obedience of the
subjects is imposed by a norm (b) if
there is a sanction applied according
to the norm.
• Kelsen’s theory is also called the
“normative theory of law”

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Law Dip 101

The legal Hans Kelsen’s grund norm

system
• Kelsen normative theory states that
all norms “flow” from a grander norm
which he called the grund norm
• In a constitutional supremacy like
Faculty of Law Malawi, the grund norm is not the
Constitution itself; but the
proposition that the Constitution
ought to be obeyed

Law Dip 101

The legal C. The Structure of the Legal System

system • In Malawi, the structure of the legal system
is made up of a number of courts.
• The Malawi supreme court of appeal
(MSCA) is the highest court in the Malawi
Legal System -s.104 Constitution
Faculty of Law • Below this court is the High Court of
Malawi - s.108 Constitution
• Below the HC are a number of subordinate
courts (subordinate to the High Court) -
s.110 Constitution
• The subordinate courts include magistrate
courts (s.110(1), industrial relations court
(s.110(2) and traditional courts (s.110(3))

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Law Dip 101

The legal C. The Structure of the Legal System

system • Although the MSCA is the highest
court in Malawi, the structure of
the legal system is called the High
Court system (cf with the
traditional court system of the one
Faculty of Law
party era when Malawi had a dual
system and each system was
distinct and independent with the
political powers then favouring the
traditional court system)
• Question : Was the old traditional court
system a bad one? Explain your answer?

Law Dip 101

The legal C. The Structure of the Legal System

system
• For the Military, there is the Court
Martial which is at the rank of the
High Court.
• Appeal from the Court Martial lie
Faculty of Law to the MSCA.
• Question : The Constitution in s. 103(3) says
there shall be no court with concurrent
jurisdiction with the High Court. Does this
make the Court Martial unconstitutional ?
Or is it a specialised court like the IRC? But
where do appeals from the IRC lie?

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Law Dip 101

Diagrammatical representation of the courts
The legal in the Malawi legal system.
system
Malawi Supreme Court
of Appeal

Court Martial
High Court of Malawi
(Military)
Faculty of Law
Industrial
Relations Court

Magistrate Courts

National Compensation Tribunal

now defunct by effluxion of time (s. 145 of the
Constitution)

Law Dip 101

The legal D. Functions of the Legal System

system
• At the most general level, the
function of the legal system is to
distribute and maintain an
allocation of values that society
Faculty of Law feels to be right.
• This allocation, invested with a
sense of rightness, is what is
commonly referred to as justice.

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Law Dip 101

The legal D. Functions of the Legal System

system
Other functions of a legal system include:
• Settling disputes: A basic legal function
is to offer machinery and a place where
people can go to resolve their conflicts
and settle their disputes.
Faculty of Law • Social control: This is essentially the
enforcement of rules of right conduct.
• Creating the norms themselves, the raw
materials of social control. In so doing,
the legal system may act as an
instrument of orderly change, of social
engineering (Roscoe Pound)

Law Dip 101

The legal D. Functions of the Legal System

system
• Repository of information : Legal systems
also record and keep legal information. This
is so because legal institutions act as a
storehouse or memory for the
thousands/millions/billions/trillions
Faculty of Law
necessary or desirable in the modern world.

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Law Dip 101

The legal Student’s Activity

system
1. Compare and contrast John Austin and Hans
Kelsen’s theories on existence and
maintenance of a legal system. To what
extent are the two theories effective in
terms of facilitating the existence and
Faculty of Law
maintenance of a legal system?

2. It has been stated that one of the functions

of a legal system is to ensure justice in the
society. Discuss how well positioned legal
systems are to achieve that function?

Law Dip 101

3. History of the Malawi legal System
Legal history basically looks at the source of
laws, institutions (courts) and mechanism
(precedent system). Below is the order in which
the Malawian Legal system developed
(A) Pre-Colonial Administration of Justice
Faculty of Law (B) Colonial Administration of Justice
(C) Post-Colonial Administration of Justice
• Post colonial
• Independence
• post-independence
o One party
o Multi party

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Law Dip 101

(A) Pre-Colonial Administration of Justice
History of • Customary law was the form of law that was widely
the used in the pre-colonial era.
Malawi • Customary law had proper checks to guard against
legal violation of unwritten law. For example, there were
System sanctions to every non-compliance with the law.
• Treachery, debauchery, treason, espionage, spying
Faculty of Law
and witchcraft were all punishable.
• Customary law also had succinct channels for
promoting and upholding morality. For example,
brilliance and courage in war could attract presents
as prestigious as a wife, cattle etc.
• The legal system by then did not provide for prisons.
This was so because, inherently, it is not a practice of
customary law to imprison.
• Customary law is not built around punishment built
restitution and community building

Law Dip 101

(B) Colonial Administration of Justice
History of
Below is the order in which colonial
the administration of justice occurred. The order
Malawi only depicts the notable constitutional
legal developments.
System (i) 1889
• In this year the “African-Order-in Council‟
Faculty of Law
was passed and it purported to administer
English law.
• In effect, it established a formal system of law
the over territory that comprised present day
Malawi.
• At this time Britain was consolidating its
power in the region as Nyasaland had not
yet become a British protectorate.

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Law Dip 101

(ii) 1891
• The “British Central Africa Order-in-Council of
History of
1891” marked the formal imposition of colonial
the
rule over Malawi, then British Central Africa
Malawi
legal territories.
System • Malawi was declared a British protectorate.
• The system of government was one of centralized
Faculty of Law monarchical and the monarch of England was the
head of state with the commissioner a
representative.
• The period 1891 to 1902 was one in which the
colonialists were trying to consolidate their power.
It was a time when the catch phrase was “the
establishing of law and order”. This largely
involved the suppressing of local resistance and
slave traders.

Law Dip 101

(ii) 1902
• When Nyasaland became a British protectorate
History of and had its first “Constitution” (Order-in
the Council) in 1902 called “British Central Africa-
Malawi
legal
Order-in-Council of 1902.‟ The order-in-council
System introduced the High Court of record.
• The 1902 recognised of law in African Malawi
Faculty of Law (Nyasaland/British central Africa), native or
customary law but the law specifically provided
that that this law would only be allowed to be
in practice if it was not repugnant to the English
law. The term repugnant in English means
disgusting, revolting, nauseating repellent,
distasteful or repulsive.

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Law Dip 101

The specific provision was Article 20 of the

History of British Central Africa Order-in-council, 1902
the read :
Malawi “In cases, civil and criminal to which natives are
legal
System
parties, every Court shall
(a) be guided by native law so far as it is
Faculty of Law applicable and is not repugnant to justice
and morality or any Regulation or Rule
made under any Order in Council or
Ordinance; and
(b) shall decide all such cases according to
substantive justice without undue
technicalities of procedure and without
undue delay”

Law Dip 101

(iii) 1903
• In this year the Subordinate Courts Ordinance was
History of enacted and it created native courts, which exercised
the jurisdiction over Africans, save in homicide cases,
Malawi which could only be heard by the High Court.
legal • The Subordinate Courts Ordinance practice and
System procedure involved both English and customary law.
Faculty of Law
(iv) 1907
• Important constitutional provisions were introduced
by the 1907 Nyasaland Order-in-Council of 1907.
• This order-in-council also set up the Legislative
Council (Legico).
• The Introduction of the Legislative Council retained
the position of the Governor as the initiator of
legislation.

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Law Dip 101

(v) 1924
• This year saw the enactment of the District
History of Administration (Native) ordinance, which was
the prescribed for village courts.
Malawi • These courts were to be supervised by Magistrates or
legal High Court judges.
System
(vi) 1933
Faculty of Law • The Native Courts Ordinance came into force.
• It continued to allow the application of the native
law and custom prevailing in the area of the
jurisdiction of the court as far as it was not
repugnant to justice or morality or inconsistent with
the provisions of any order of the king in council or
any other law in the protectorate.

Law Dip 101

(vii) 1935
History of
• An ordinance was passed which barred legal
the representation in native courts.
Malawi • It also empowered District Commissioners to
legal sit in Native Courts as advisors.
System • District Commissioners also had the power to
revise orders, convictions and sentences
Faculty of Law
given by the Native Courts.
• The weakness of colonial administration of
justice in respect of this ordinance was the
involvement of colonial administrators in the
judicial process.
• This militated against the established
doctrine of separation of powers.

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Law Dip 101

(viii) 1943
History of
• The Federation of Rhodesia and Nyasaland
the was created by an order-in-council in 1943.
Malawi • However the federation only came into
legal being 10 years later in 1953.
System • The monarch was still head and it created a
Federal Assembly, Federal Supreme Court
Faculty of Law
and the African Affairs Board (a standing
committee of the federal legislature
composed of 2 appointed Europeans
members of assembly and 3 elected African
members of the assembly from each of the 3
territories. The board was to scrutinize any
legislation passing through the assembly in
order so as to advice the governor.

Law Dip 101

(ix) 1961
History of • Nyasaland Constitution order-in council to
the facilitate general election
Malawi
legal (x) 1962
System
• The Local Courts Ordinance of 1962
Faculty of Law
removed judicial powers from administrators
especially Provincial Commissioners, District
Commissioners, Executive officers and chiefs
and replaced them with court chairmen.
• S.36 of the ordinance provided that
“substantial justice should be done without
undue regard to technicalities.‟

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Law Dip 101

(B) Independence
History of
the (i) 1964
Malawi • Enacted the Independence Constitution and
legal the name officially changed from Nyasaland
System
to Malawi
Faculty of Law
• Monarch was still head of state but provided
for a prime minister
• It had a bill of rights –is to protect rights of
people (or safeguarding the minorities ?)
• The bill of rights had only a 2 year life-span
as was removed when Malawi enacted a
new Constitution.

Law Dip 101

(C) Post independence
History of One party era
the (i) 1966
Malawi • Enacted the Republican Constitution.
legal • Monarch was no longer head of state and Malawi
System had an executive president (vice presidency was
rejected) - vice presidency and prime ministers were
Faculty of Law seen as contrary to African Tradition
• President was to hold Office as long as he enjoyed
the support of majority of people
• It had no bill of rights
• The Supreme Court was introduced as the highest
court.
• Malawi become constitutionally a one party state
and that party was the Malawi Congress Party (MCP)
• (influence of the 1964 “Cabinet crisis” on the 1966
Constitution)

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Law Dip 101

The Dual Judicial System in Malawi
History of • The dual judicial system in Malawi was
the
introduced by the passing of the Local
Malawi
legal Courts (Amendment) Act of 1969 and
System Traditional Courts Act 1970.
• The dual system was made up of the Malawi
Faculty of Law Supreme Court of Appeal, the High Court
and Magistrate’s Courts in one system and
the National Traditional Appeal Court,
Regional Traditional Courts, District
Traditional Appeal Courts and ‘Graded
Traditional Courts’ in the other system.

Law Dip 101

The Dual Judicial System in Malawi
History of National Traditional Malawi Supreme Court of
the Appeal Court Appeal
Malawi
legal
System Regional Traditional
Appeal Court High Court of
Malawi
Faculty of Law

District Magistrate Courts

Traditional
Appeal Courts

Graded Traditional
Courts

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Law Dip 101

The Dual Judicial System in Malawi
History of • Regional Traditional Courts had criminal
the
jurisdiction only and they determined
Malawi
legal important crimes such as treason, murder
System and sedition.
• Their jurisdiction, though at first instance,
Faculty of Law was greater than that of District Traditional
Appeal Courts.
• Decisions of High Court system were not
binding on the courts under the Traditional
court system nor did those of the Traditional
courts system bind courts under the High
Court system.

Law Dip 101

The Dual Judicial System in Malawi
History of • In respect of the traditional court system it was
the doubtful as to whether the doctrine of judicial
Malawi precedent applied.
legal • However, Machika cites the Traditional court
System systems constant use of the words “according to
custom”, “at custom”, “traditionally” and “in our
Faculty of Law
tradition” etc. as indicating the use of some form of
judicial precedent - Machika M, The Malawi Legal
System: An Introduction
• The traditional court system applied cases from the
high court system and English law -see Talina
Nyauhango v Rep. Criminal App No. 8 of 1982 NTAC
(unreported)
• The traditional court system also applied principles
of equity - Mbona v Mwakhwana Civil Appeal case
no. 57 of 1978 NTAC (unreported)

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Law Dip 101

(C) Post independence
History of Multi party era
the 1993
Malawi • 1966 Constitution amended to provide for a
legal referendum.
System • After referendum result was over
overwhelmingly for multiparty democracy,
Faculty of Law
Constitutional conference set up to draw up a
multi party constitution.
• The desire was to avoid the mistakes of 1964 and
usher in a new Constitution with a Bill of rights
• This was probably the most consensus based
constitutional conference yet and brought about
a cross-section of people not only from Malawi
but also from abroad.

Law Dip 101

1994
• Among other things the current constitution provides
History of for a Bill of Rights (chapter 4).
the • It has also created new institutions e.g. office of the
Malawi Ombudsman and Human Rights Commission.
legal • The existence and operations of the Traditional Courts
System ceased in 1994, largely as a result of the Constitution
which prohibits the existence of courts superior or
Faculty of Law concurrent jurisdiction to the High Court or the
Supreme Court (s. 103(3)).
• Note, however, that the Constitution envisages the
creation of Traditional or Local Courts as courts
subordinate to the High Court (s. 110(3))
• The Constitutional had a “trial run” for one year and
the provisions that survived became sacrosanct in
1995. The Senate was one of the bodies that did not
survive thereby creating a unicameral parliament.

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Law Dip 101

Student’s Activity
History of 1. Evaluate the merits and demerits of the dual
the judicial system that existed in Malawi
Malawi between 1969 to 1994.
legal
System 2. Considering the fact that traditional court
system is no longer operational in Malawi, to
Faculty of Law what extent is customary law applicable in
the present Malawi judicial system?
3. Since most of those who attended the
Constitutional Conference were not elected
officials/representatives, how representative
were their views. Would it have mattered if
the end-product was never put before the
electorate in a referendum?

Law Dip 101

4. Sources of Law
(A) Definition of “sources”
• By “sources of law” we mean the places where
the law originates from and where it can be
found.
• Where the law originates is a question of who
Faculty of Law makes the law, sometimes referred to as the
institutional source. This refers to institution or
body where the law is made. This may be
parliament, the courts or in the case of
customary law, the society itself.
• Where the law can be found relates to where the
student, the legal practitioner, the judge or the
citizens finds the law to use it. This is often
referred to the as the material source of the law.

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Law Dip 101

• To a large extent the two notions of the
Sources of
source law overlap.
Law
• The places where the law originates from
are generally also the places where it can be
found.
There are five sources of law in Malawi. These are:
Faculty of Law
I. Acts of Parliament (legislation)
II. Common law & Equity
III. International law
IV. Customary law
V. Foreign case law

Law Dip 101

I. Statutes/ Legislation
Sources of
Law • Legislation is the law that is laid down by an organ
or body given special powers to make law.
• These laws are in writing and they are variously
known as “Acts”, “Statutes” or “legislation”.
• In Malawi Parliament is the highest body that can
Faculty of Law
make legislation at the national level.
• The Constitution gives Parliament this power.
• According to section 200 of the Constitution, Acts
of Parliament are a source of law in Malawi.
• Acts of Parliament come in three different forms:
o The Constitution
o Principal legislation
o Subsidiary legislation.

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Law Dip 101

The Constitution
Sources of
Law • The Constitution is the highest or supreme law
of the land.
• This is provided in sections 5, 199, 10, 11 and
200 of the Malawi Constitution
• The sections mentioned above provides as
Faculty of Law follows:

Section 5:
“Any act of government or any law that is
inconsistent with the provisions of this
Constitution shall to the extent of such
inconsistency be invalid.”

Law Dip 101

Section 199: “The Constitution shall have the
Sources of
status as supreme law and there shall be no
Law
legal or political authority save as is provided
by or under this Constitution.”

Section 200: “Except in so far as they are

inconsistent with this Constitution, all Acts of
Faculty of Law
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; Provided that any laws currently in
force may be amended or repealed by an Act of
Parliament or be declared unconstitutional by a
competent court.”

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Law Dip 101

According to s.211 (1) any international
Sources of agreement entered into after the commencement
Law
of this Constitution shall form part of the law of
the republic if so provided by or under an Act of
Parliament.
Section 48(2): “An Act of Parliament shall have
Faculty of Law
primacy over other forms of law but shall be
subject to the Constitution.”
The Constitution (ss 200, 211 and 58) recognizes
other sources of law applicable in Malawi such as:
• Acts of Parliament
• Common law
• Customary international law
• International agreements
• Subsidiary legislation

Law Dip 101

Principal Legislation (Acts of Parliament)
Sources of • In Malawi the law stipulates that an Act of
Law
Parliament shall have supremacy over other
forms of law.
• It shall, however, be subject to the
Constitution - See s.48 (2) Constitution

Faculty of Law • According to s.200 of the Constitution all

Acts of Parliament in force on the appointed
day shall continue to have force of law in so
far as they are not inconsistent with the
Constitution.

• Question : Which/what is the appointed

day?

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Law Dip 101

Subsidiary Legislation
Sources of • Since it might not be possible for the Acts of
Law
parliament to encompass everything, the
Constitution gives Parliament the power to
delegate to the Executive or to the judiciary
the power to make subsidiary legislation
with respect to any particular Act of
Faculty of Law
Parliament. This power of delegation is,
however, limited- see s.58(1) and (ii)
• S.58 (2) in limiting the power of parliament
to delegate states as follows:
“Notwithstanding subsection (i), parliament shall
not have the power to delegate any legislative
powers which would substantially and significantly
affect the fundamental rights and freedoms
recognized by this Constitution.”

Law Dip 101

Importance of legislation
Sources of Legislation is important for the following
Law
reasons:
a) Statutes are made to apply in specific
situations
b) They provide the legal framework to
regulate particular behaviour of individuals
Faculty of Law
c) They create new law and may repeal
existing law, if the existing law is deemed, by
the legislators, to be unreasonable or unfair.
d) They codify existing law on a particular
matter or topic
e) They also consolidate enactments
f) In general legislation is said to be a more
efficient form of social engineering.

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Law Dip 101

II. Common law and equity
Sources of
Law Common law
• Common law has also been recognized as a
source of law in Malawi - s.200 Constitution.
• Common law generally refers to the ancient
unwritten law of England.
Faculty of Law • It can further be defined as the law of England
that is not the result of legislation, that is, the
law created by the custom of the people and
decisions of the judges.
• Common law was held together by the doctrine
of stare decisis, or standing by previous
decisions.

Law Dip 101

Common law
Sources of
Law • Thus, when a judge decided a new problem in a
case brought before him, this became a new
rule of law and followed by subsequent judges.
In later times this practice crystallized into he
form which is known as the binding force of
Faculty of Law judicial precedent, and the judges felt bound to
follow previous decisions instead of merely
looking to them for guidance.

• According to s.200 of the constitution, common

law shall be applicable in Malawi as long as it is
not inconsistent with the Constitution of
Malawi.

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Law Dip 101

Development of the Common law
Sources of
Law • Before the Norman Inquest, different ‘laws’
applied
• 1066 : William the Conqueror established a
central government and began to standardise
(uniformise) the law
Faculty of Law • King’s representatives (‘itinerant’ justices) were
sent out to adjudicate in local disputes
according to local law
• On their return to Westminster (from the
assizes) they discussed the various customs of
different parts.
• The justices by process, rejected unreasonable
customs and accepted the rational ones

Law Dip 101

Development of the Common law
Sources of
Law • Over time, there developed a consistent
body of rules which was of common
application across all England.

• During this period, the principle of stare

Faculty of Law
decisis (‘let the decision stand’) ‘grew’ up.

• Therefore whenever a new problem of

law came to be decided, the decision
formed a rule to be followed in all similar
cases, making the law more predictable

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Law Dip 101

Development of the Common law
Sources of
Law • The common law was therefore thus
born.
• By 1250, a ‘common law’ had been
produced that :
 ruled the whole country
Faculty of Law
 Was applied consistently
 Could be used to predict what the
courts might decide in a particular case
• Contained many of what are now basic
points of English law – the fact that
murder is a crime for example

Law Dip 101

Development of the Common law
Sources of
Law • The principles behind this ‘common law’ are still
used today in creating case law (which is in fact
often known as common law)
• From the principle of stare decisis a hierarchy of
precedent grew up (in line with the hierarchy of the
modern court system, so that in general , a judge
Faculty of Law
must follow decisions made by courts which are
higher up the hierarchy than his or her own.
• The process was made easier by the establishment
of a regular system of publication of reports of
cases in the higher courts
• The body of decisions made by the higher courts,
which the lower courts must respect, is known as
case law.
• (a detailed discussion of precedent follows later)

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Law Dip 101

Equity
Sources of
Law • Equity means principles of justice outside
common law, or statute law, used to correct
laws when these would apply unfairly in special
circumstances.
• In Malawi equity has not been expressly stated
Faculty of Law
to be a recognized source of law. However, by
allowing for continued application of common
law in s.200 of the Constitution it implies that
equity, which is now fused in common law, is
also recognized by the Constitution as a source
of law.
• Judges in Malawi have also applied principles of
equity in their judgments - See Chupa v Malawi
Hotels Ltd 12 MLR 226

Law Dip 101

How Equity began
Sources of
Law • Under the common law, civil actions had to
be begun by a writ (which set out the cause
of action or the grounds for the claim made)
• Over time there grew up different types of
writs
Faculty of Law • Early on, new writs were created to suit new
circumstances
• In the 19th century, this practice was stopped
and litigants had to fit their circumstances to
one of the available types of writ – if the
case did not fall within one of those types,
there was no way of brining the case to the
common law court

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Law Dip 101

How Equity began
Sources of
Law • At the same time, the common law was itself
becoming increasingly rigid, and offered only
one remedy, damages, which was not always an
adequate solution to every problem

Faculty of Law
• For example :
if a litigant had been promised the chance to buy a
particular piece of land and the seller then went
back to the agreement, damages might not be an
adequate remedy since the buyer really wanted
the land, and may have made arrangements on the
basis that it would be acquired

Law Dip 101

How Equity began
Sources of
Law • Therefore many people were unable to seek
redress for wrongs through the common law
courts
• Many of these dissatisfied parties petitioned
the king, who was thought to be the
Faculty of Law ‘fountain of justice’
• As the king did not want to spend time on
them, these petitions were commonly
passed to the Chancellor, the king’s chief
minister
• The Chancellor was usually a member of the
clergy and was thought of as ‘keeper of the
king’s conscience’

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Law Dip 101

• Soon litigants began to petition the Chancellor
Sources of himself directly
Law • By 1474, the Chancellor had begun to make
decisions on the cases on his own authority
rather than as a substitute for the king
• This was the beginning of the Court of Chancery
• Litigants appeared before the Chancellor who
Faculty of Law would question them, and then deliver a verdict
based on his own moral view of the question.
• Court could insist that :
 relevant documents be disclosed
 Questioning of parties in person
• This was unlike the common law courts
which did not admit oral evidence until the
16th century and had no way of extracting
the truth from litigants

Law Dip 101

• Because the Court of Chancery followed no
Sources of
binding rules, relying entirely on the
Law
Chancellor’s view of right and wrong, it could
enforce rights not recognised by the common
law, which, restricted by precedent, was
failing to adapt to new circumstances
Faculty of Law • The Court of Chancery could provide
whatever remedy best suited the case for
example the decree of specific performance,
which would have meant the seller of land
referred to above could be forced to honour
the promise.

• This type of justice came to be known as

equity

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Law Dip 101

Sources of • As each Chancellor decided a

Law
matter based on his own morals
view of the question, therefore
there developed a saying that
“equity varied with the length
Faculty of Law
Chancellor’s foot”
• This also meant a lack of
consistency and predictability in
the Chancery Courts

Law Dip 101

Common law and Equity
Sources of
Law • Unsurprisingly, the Court of Chancery became
very popular
• This caused some resentment among
common law lawyers
• They criticised that the quality of decisions
Faculty of Law varied with the length of the Chancellor’s foot
– in other words it depended on the qualities
of the individual Chancellor
• Because precedents were not followed, and
each cases was considered purely on its own
merits, justice could appear arbitrary, and
nobody could predict what a decision might
be

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Law Dip 101

Common law and Equity
Sources of
Law • On the other hand, this very flexibility
was seen as a great advantage of equity
i.e. where any rules are laid down and
rigidly followed, there will always be
situations in which those rules produce
Faculty of Law
injustice - the more general the rule, the
more likely this is
• Equity dealt with this by applying notion
of good sense and fairness
• However in so doing, equity laid itself
open to the charge that fairness is a
subjective quality

Law Dip 101

• The common law layers particularly resented
Sources of
the way in which equity could be used to
Law
restrict their own jurisdiction
• Where the common law gave a litigant a right
which, in the circumstances, it would be unjust
to exercise, the Court of Chancery could issue a
Faculty of Law common injunction, preventing the exercise of
the common law right
• For Example :
If a litigant had made a mistake in drawing up a document.
Under common law, the other party had a legal right to
enforce the document anyway, even if they were aware of
the mistake. This was considered inequitable, and a
common injunction would prevent the document being
enforced

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Honeymoon over
Sources of
Law • Matters came to a head in 1615 in the Earl of
Oxford’s Case
• Conflicting judgements of the common law
courts and of the Court of Chancery were
referred to the king for a decision
Faculty of Law
• The king advised that where there was conflict,
equity should prevail
• This did not end the rivalry which continued for
some time (still does ?) but did abate as equity
too began to be ruled by precedent and
standard principles ( a development related to
the fact it was becoming established practice to
appoint lawyers rather than clergy to the office
of Lord Chancellor)

Law Dip 101

Aftermath
Sources of
Law • By the 19th century, equity had developed case law and
recognisable principles, and was no less rigid that the
common law
• Once equity became a body of law, rather than an
arbitrary exercise of conscience, there was no reason
why it needed its own courts
Faculty of Law • The Judicature Acts 1873-75 were therefore passed to
unify the two systems and created the English court
structure that still exists today.
• It provided that equity and common law could both be
administered by all courts, and there would be no
longer different procedures for seeking equitable and
common law remedies
• The Chancery Court became a division of the High
Court, but like all other courts could now apply both
common law and equity.

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Equity today
Sources of
Law • However, the Judicature Acts did not fuse
common law and equity
• It only fused their administration!

• There is therefore still a body of rules of equity

Faculty of Law
which is distinct from common law rules, and
acts as an addition to it.

• Although they are applied by the same courts,

the two branches of law are separate. Where
there is conflict, equity still prevails
• The Judicature Acts still retained the ruling in
the Earl of Oxford’s case.

Law Dip 101

Equitable maxims
Sources of
Law • Although both the common law and
equity lay down rules developed from
precedents, equity also created maxims
which had to be satisfied before equitable
rules could be applied.
Faculty of Law
• These maxims were designed to ensure
that decisions were morally fair.
• Most of the maxims were in Latin
(language of the court)

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Some Common Equitable maxims
Sources of
Law 1. ‘He who comes to equity must come with
clean hands’
 D & C Builders v Rees [1966] 2 QB 617
2. ‘He who seeks equity must do equity’
 Chappel v Times Newspapers Ltd [1975] 1
Faculty of Law WLR 482
3. ‘Delay defeats equities’
 Leaf v International Galleries [1950] 2 KB 86
4. Equity will not suffer a wrong without a
remedy
5. Equity follows the law.

Law Dip 101

Some Common Equitable maxims
Sources of
Law 6. Where there is equal equity, the law shall
prevail.
7. Where the equities are equal, the first in time
shall prevail.
8. Equality is equity (Equity delights in equality)
Faculty of Law
9. Equity looks to the intent rather than the form.
10. Equity looks on that as done which ought to be
done.
11. Equity imputes an intention to fulfil an
obligation.
12. Equity acts in personam.

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Some Common Equitable maxims
Sources of
Law 13. Equity does not require an idle gesture
14. Equity delights to do justice and not by halves
15. Equity will take jurisdiction to avoid a multiplicity of
suits
16. Equity will not aid a volunteer
17. The law (Equity) aids the vigilant, not those who
Faculty of Law slumber on their rights
18. Equity abhors a forfeiture
19. Equity will not complete an imperfect gift
20. Equity will not allow a statute to be used as a cloak for
fraud
21. Equity will not allow a trust to fail for want of a trustee

Law Dip 101

Equitable remedies
Sources of
Law • Injunction : This orders the defendant to
do or not do something

• Specific performance : This compels a

party to fulfil a previous agreement
Faculty of Law

• Rectification : This order alters the words

of a document which does not express
the true intentions of the parties to it.

• Rescission : This restores parties to a

contract to the position they were in
before the contract was signed

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Law Dip 101

Equitable remedies
Sources of
Law • Equitable remedies are discretionary. A
plaintiff, applicant or claimant who wins a
case is awarded the common law remedy
of damages as of right, but the courts
may choose whether or not to award
Faculty of Law
equitable remedies.
• They are very much an addition to
common law remedies
• Usually only available if common law
remedies are plainly inadequate

Law Dip 101

New Equity
Sources of
Law • Two new equitable remedies have
recently been created:
 Mareva injunction – where the court makes an
order restraining the defendants from removing or
disposing out of the jurisdiction property where
there are grounds for that fearing that the
Faculty of Law
defendant may defeat justice by transferring assets
abroad or by concealing them in the country :
Mareva Compania Naviera SA v International Bulk
Carriers SA “The Mareva” [1980] 1 All ER 213
 Anton Piller Order – where the court orders for the
detention or preservation of the subject-matter of a
cause and of documents relating thereto Anton
Piller KG v Manufacturing Processes Ltd [1976] Ch.
55; [1976] 1 All ER 779; CA

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Law Dip 101

Sources of
Law For a discussion on the law on injunctions
read :
• Masumbu JM Civil Procedure in Malawi
: The Recent Talking Points (First
Edition) 2006 Montfort Press : Limbe
Faculty of Law
(pp1-29)

• Order 29, Rules of the Supreme Court,

1999 Sweet & Maxwell (White Book)

Law Dip 101

Equity’s contribution
Sources of
Law • Apart from the equitable remedies, two
other important contributions of equity
have come in the form of property law :
 The development of the law of trusts
 basis of the rules governing mortgages
Faculty of Law

• The creation of alternative remedies is

also regarded as an important
contribution of equity to the law

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Law Dip 101

Custom (not the same as customary law)
Sources of
Law • As we have see, custom was the basis of the
common law
• The itinerant justices sent out by William the
Conqueror examined the different local
Faculty of Law
practices of dealing with disputes and crime and
filtered out the less practical and reasonable
ones, and ended up with a set of laws that were
to be applied uniformly throughout the country
• However this does not mean that custom itself
was ever law – the law was created by the
decision of judges in recognising some customs
and not others

Law Dip 101

Custom (not the same as customary law)
Sources of
Law
• Custom was defined as ‘such usage as has
obtained the force of law’ Tanistry case
(1608)
• Its proponents when challenged assert
that ‘the custom’ has existed for so long
Faculty of Law
that it should be given the force of law,
even though it may conflict with the
general common law
• Question : Does custom still play a part in
modern law?

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Custom as a source of law
Sources of
Law
• To be regarded as conferring legally
enforceable rights, a custom must fulfil
several criteria :
 ‘Time immemorial’
 Reasonableness
Faculty of Law
 Certainty and clarity
 Locality
 Continuity
 Exercised as of right
 Consistency
 Obligatory
 Conformity with statute

Law Dip 101

Custom as a source of law
Sources of  ‘Time immemorial’
Law  - Was fixed by a statute in 1277 as meaning ‘since at
least 1189’
 In practice as far back as living memory can go
(often by calling the oldest local inhabitants as a
witness)

Faculty of Law  Reasonableness

 A legally enforceable custom cannot conflict with
fundamental principles of right and wrong, so a
customary right to commit a crime, for example,
could never be accepted
 Certainty and clarity
 It must be certain and clear The locality in which the
custom operates must be defined. Along with the
people to whom rights are granted and the extent of
those rights.

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Law Dip 101

Custom as a source of law
Sources of  Locality
Law  It must be specific to a particular geographic area.
Where a custom is recognised as granting a right, it
grants that right only to those specified. Custom is
only ever a source of local law

 Continuity
Faculty of Law
 It must have existed continuously. The rights granted
by custom do not have to have been exercised
continuously since 1189, but it must be possible to
exercise them at all times since then

 Exercised as of right
 It must have ben exercised peaceably, openly and as
of right. Customs cannot create legal rights if they
are exercised only by permission of someone else

Law Dip 101

Custom as a source of law
Sources of  Consistency
Law  It must be consistent with other local customs. For
example if a custom is alleged to give inhabitants of
one farm to cultivate, it cannot also give the
inhabitants of another the right to graze the same
land.
Faculty of Law
 Obligatory
 Where a custom imposes a specific duty, that duty
must be obligatory

 Conformity with statute

 A custom which is in conflict with a statute will not
be held to give rise to law

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Law Dip 101

III. Customary law
Sources of
• Customary law is law that evolves out of
Law
longstanding practices of the people.
• It has also been recognized as a source of law in
Malawi - see s.200 of the Constitution.
• Customary law can be applied by judicial
precedent or use of authoritative writings.
Faculty of Law
• Customary law was vastly applied in the
traditional court system prior to the
commencement of the 1994 Republic of Malawi
Constitution (the 1966-1993 one party era)
• Question : How indigenous is customary
law? How representative is it? Does the
notion of pockets of customary law marry
with the new cosmopolitan Malawi?

Law Dip 101

IV. International law
Sources of
Law • International law is the law that governs
relations between states.
• It is recognized as a source of law in
Malawi by the Constitution- see: 211 and
s.11(2)(c)
Faculty of Law
• There are two forms of international law
recognized under the constitution, and
these are
• international agreements and
• customary international law.

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IV. International law
Sources of
Law • International agreements between states are
those written understandings that govern
relations between states. They can be bilateral
(between two states) or multilateral (between
several states). They are sometimes referred to
Faculty of Law as treaties. They can take the form of
conventions (if they involve a large number of
states) and sometimes covenants.
• According to s.211 (3) customary international
law shall form part of the law of the Republic of
Malawi unless it is inconsistent with the
Constitution or an Act of Parliament.

Law Dip 101

IV. Foreign case law
Sources of
Law • S.11 (2)(c) recognizes comparable foreign case
law as a source of law especially with respect to
Constitutional Interpretation.
• This provision opens up for a range of cases of
various jurisdictions to which courts of Malawi
Faculty of Law
can refer.
• Foreign case law is an indirect source of law

• Question : Cases from which jurisdictions

have had the most impact on the Malawi
legal system apart from England?

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Law Dip 101

Hierarchy of the Sources of Law
Sources of
Law • The sources of law are placed in a hierarchy.
• This means that one type of law ranks superior to
the other.
• The legal consequence of this is that when there
is conflict between two laws the higher one in the
hierarchy prevails over the lower one.
Faculty of Law
• Example are ss5, 199 and 200 which in effect
state that the Constitution ranks higher than all
other laws and that any law that is inconsistent
with the Constitution is invalid to the extent of
the inconsistency.
• Section 48(2) also says that Acts of Parliament
rank superior to all laws except the Constitution.

Law Dip 101

Hierarchy of the Sources of Law
Sources of
Law The hierarchy therefore appears to be in the
following order:
1. The Constitution
2. Acts of Parliament
3. Common Law (& Equity)
4. Customary Law
Faculty of Law
5. International Law
6. Foreign Case Law

However in between international law and

customary law, the hierarchy may well be dependent
on the legal issues in contention.

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Law Dip 101

Student’s activity
Sources of
Law 1. Discuss the reasons why the hierarchy of laws
appears in this order.
2. State any five international agreements,
entered into by Malawi prior to the 1994
Constitution. State any five that Malawi has
Faculty of Law entered after 1994.
3. Section 58(2) of the Constitution states that the
power of parliament to delegate its legislative
powers is limited with respect to legislation
that would substantially and significantly affect
the fundamental rights and freedoms
recognized by the Constitution. What would be
the justification for this?

Law Dip 101

5. Branches / classification of the Law
The law can be classified in a number of ways,
the most common of which are the following:

(i) Private law

Faculty of Law (ii) Public law
(iii) Criminal law
(iv) Civil law

Sometimes law may be also be classified as

(a) Procedural law
(b) Substantive law

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i. Private law
Branches /
classification • Private law is that portion of the law which
of the Law defines, regulates, enforces, and
administers relationships among
individuals, associations and corporations.
• In private law, therefore, both parties have
Faculty of Law
to be private individuals.
• The majority of private law is sourced from
judge-made law e.g., the law of torts, the
law of contract, etc.
• Private law protects individual interests,
and in terms of procedure, one does not
need to seek permission of the court in
order to commence an action, as it is in
public law.

Law Dip 101

ii. Public law
Branches /
classification • In its simplest form, public law means areas
of the Law of the law that relate to or regulate the
relationship between private individuals
and government at all levels.
• It can further be defined as a general
Faculty of Law
classification of law, consisting generally of
constitutional, administrative, criminal and
international law, concerned with the
organization of the state, the relationship
between the state and the people who
compose it, the responsibilities of public
officers to the state, to each other, and to
private persons, and the relations of states
to one another.

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ii. Public law
Branches /
classification • The majority of public law came from
of the Law statutes.
• The main purpose of public law is to
protect public or collective interests.
• In terms of procedure, one is usually
Faculty of Law
required to seek permission of the court in
order to bring an action.

There are three main types of public law :

• Constitutional law
• Administrative law
• Criminal Law
(The first two are discussed as part of this sub-
topic but criminal law is discussed separately)

Law Dip 101

Constitutional law
Branches /
classification • Constitutional law controls and regulates
of the Law the method of government and any
disputes arising over using over matters
such as arms of government (Executive,
legislature and Judiciary and their functions
Faculty of Law
and powers) ,who is eligible to vote,
eligibility of presidential or parliamentary
candidate, fundamental rights of
Malawians etc.
• It is worth mentioning at this point that
unlike the Great Britain (where we got
most of our laws from) which is a
Parliamentary Supremacy, Malawi is a
Constitutional Supremacy.

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Law Dip 101

Constitutional law
Branches /
classification • The Courts have categorically stated this
of the Law position and have differentiated the
doctrines thus : under the doctrine of
supremacy of Parliament, courts are
incapacitated from questioning the validity
Faculty of Law
of an Act of Parliament… In the United
Kingdom the courts cannot question
legislation; Malawi Congress Party &
Another v Attorney General & Another
[1996] MLR 244 per Mwaungulu J
• Under Constitutional Supremacy, Courts
are actually empowered to question the
validity of an Act of Parliament – s.5 & 199
of the Constitution.

Law Dip 101

Administrative law
Branches /
classification • Administrative law controls how the Executive
of the Law or other public bodies should operate.
• Key to this type of public law is the remedy of
judicial review (by the High Court) which is
provided for under S.108(2) of the
Constitution.
Faculty of Law • Under this provision, the High Court is given
the power to review any action or decision of
the Government for conformity with the
Constitution
• Administrative action will also be reviewed in
terms of the “Wednesbury reasonableness” –
see The State v Chief Secretary to the President
& Cabinet Ex parte Muluzi Miscellaneous Civil
Application No 3 of 2011 (HC) Mzuzu.

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Law Dip 101

Administrative law
Branches /
classification • In brief, the process of judicial review is
of the Law where a Judge of the High Court is asked to
review the decision (or refusal to make
decisions) of inferior courts and tribunals
and also of public bodies and officials.
Faculty of Law
• It therefore allows the Courts to have
supervisory powers over the decision
making process of the government
machinery without necessarily substituting
the public body’s or official’s decision with
the Court’s own decision.
• The principle of judicial review is therefore
not to substitute the court in place of the
decision-maker.

Law Dip 101

Administrative law
Branches /
classification • It has been said that Judicial review is to
of the Law protect an individual against abuse of
power by authorities exercising judicial,
quasi-judicial and administrative powers.
Judicial review is not to detract from
Faculty of Law
authorities the powers and discretion
properly vested in them by law -see the
definition by Lord Diplock in O’Reilly v
Mackman [1982] 3 WLR 1096 and White
and Another v Attorney General & Another
(1993) 16(2) MLR 903, per Tambala J

• The State and another ex parte Khawela

and others [2008] MLLR 283 HC

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iii. Criminal law
Branches / • The main purpose of criminal law is to protect
classification
of the Law the society from harm.
• It declares what conduct is criminal.
• It prescribes the punishment to be imposed for
the criminal conduct.
• Criminal law also includes the definition of
Faculty of Law specific offences and general principles of
liability.
• Since criminal law protects public interest, it is
put in place and enforced by the government
through what is known “public prosecutions
system”.
• Punishment in criminal law is usually
imprisonment, and fine. It may also be
community work and suspended sentence.

Law Dip 101

iii. Criminal law
Branches / • Criminal law is an interesting part of law
classification
of the Law because a person whose commits a crime is
said to have offended against the State and is
therefore prosecuted by the state.
• It therefore does not matter whether a person
has committed the criminal offence against
Faculty of Law
another person; as long as it is a criminal
offence (such as a brawl, indecent exposure,
rape, murder etc.), it will be the state that will
prosecute the person who is suspected of
having committed the offence.

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Law Dip 101

iii. Criminal law
Branches / • The aggrieved person may sometimes also bring
classification
of the Law private prosecution should the state not take
action but consent must be obtained from the
court or the Director of Public Prosecutions
(DPP) first. This is because even where a
prosecution is private, the prosecutor is still
Faculty of Law under the direction and supervision of the DPP,
who in Malawi is the sole person in charge of all
criminal prosecutions.
• The victim in a criminal matter will not
necessarily compensated since the case is not
viewed as between the offender and victim.
However the Court has the power to order the
offender to pay compensation to the victim as
well as punishing the offender.

Law Dip 101

iv. Civil law
Branches /
classification • Civil law can be defined as the body of law
of the Law
that is concerned with civil or private rights
and remedies, as contrasted with criminal
laws. It is part of private law.
• It is primarily concerned with compensating
Faculty of Law victims.
• The action is taken individually and not by the
public prosecutions system as it is in criminal
law.
• In terms of “punishment” if found liable, the
defendant is usually required to pay damages,
which will act as compensation to the victim.

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Law Dip 101

Criminal law and civil law distinguished
Branches /
classification • The difference between civil wrong and
of the Law criminal wrong is not so much in the nature of
the wrong but the legal consequences the law
attaches on it. The same act could be criminal
and civil. This would very much depend on the
legal result of an action. If the action is civil the
Faculty of Law
consequences will be the award of damages
whereas if the action is criminal the
consequences will be a conviction and
punishment.
• Additionally the law uses different
terminologies and procedures for both civil
and criminal processes.

Law Dip 101

Criminal law and civil law distinguished
Branches / • In criminal law cases have to be proved beyond
classification
of the Law “reasonable doubt” in civil law cases it is proof
on the balance (preponderance) of probabilities
–Miller v Ministry of Pensions [1942] 2 All ER
372 at 373 per Denning J
• In criminal law cases, the accused is always
Faculty of Law presumed innocent until proved otherwise
whilst such a principle is alien to civil law – see
Woolmington V DPP [1935] AC 462
• In criminal law cases the burden of proof lies on
the prosecution [s.187(1) CP&EC]; in civil law
the principle is “s/he who asserts must prove”.
• A finding against the defendant in a criminal law
case results in a conviction (except for juveniles)
whilst in a civil law case is a finding of liability.

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Law Dip 101

Criminal law and civil law distinguished
Branches /
classification • For open court cases in the High Court and
of the Law Malawi Supreme Court of Appeal , the presiding
judicial officer (s) wear red attire in criminal law
cases and black attire in civil law cases.
• In criminal matters the parties are the state and
the defendant(s). Accused is no longer consider
Faculty of Law appropriate because of its negative connotation.
In civil matters it is the plaintiff and the
defendant or the applicant and the respondent.
• However, at appeal both criminal law and civil
law cases have the appellant(s) and the
respondent(s)
• The substance in a criminal matter is a “charge”
whilst in civil matters it is a “claim”.

Law Dip 101

Student’s activity
Branches /
classification 1. “ The distinction between public and private
of the Law law is often artificial and unrealistic. Often the
state, with state authority encroaches upon
the area of private …” Kleyn D and Viljoen F,
Beginner’s Guide for Law Students (2nd ed),
Western Cape, 1998 p.107. Discuss
Faculty of Law

2. Explain the relationship between the

following:
a) Private and Civil law
b) Public and criminal law

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6. TECHNIQUES OF LEGAL STUDY
Court decisions contain the following (Machika):
(a) Findings of material facts
These may be direct or inferential. An inferential
finding of fact is that which the judge draws from
the direct or perceptible facts.
Faculty of Law

(b) Statements of the principles of law

applicable to the legal problems disclosed by the
facts; and

(c) Judgment based on the combined effect of

(a) and (b) above.

Law Dip 101

Techniques In a typical case you must be able to isolate

of legal
study (a) Facts
Which build the case.

(b) Material facts

Faculty of Law Upon which the case is decided

(b) [Legal] Issues disclosed by the facts and which

the court has to resolve

(d) Reason for the decision

(e) The Decision itself

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Law Dip 101

Case Study
Techniques
of legal IN THE NATIONAL TRADITIONAL COURT SITTING AT LILONGWE
study
CIVIL APPEAL CASE NO. 92 OF 1979

DAUD ISSA …………………………………APPELLANT

-VS-
FLORA NAMAZIYA ………………………………RESPONDENT
Faculty of Law
JUDGEMENT

This is an appeal from the Judgement of the Lilongwe

Urban Traditional Court which court adjudged the
appellant the putative father of the respondent’s child
and ordered him to pay K18.00 per month for thirteen
years towards the maintenance of the child. The order
was backdated to June, 1978 with the result that at the
time of the order the appellant was said to be in arrears
of K216.00 which, we understand, has since been paid.

Law Dip 101

Techniques It is in evidence that at the time of the proceedings the

of legal respondent’s child was three years old or more so that the
study
respondent could not initiate these proceedings since
twelve months had elapsed unless – but there is no
evidence to this effect – the appellant had been
supporting the child. The court did not even make a finding
on whether the respondent was single woman as required
Faculty of Law
by the Affiliation Act under which the Chairman purported
to determine these proceedings. This court finds that in as
much as the court treated these proceedings as though
they fell under the Affiliation Act it erred.

However, there is no doubt that the appellant is the father

of the child in question. Evidence on that point is
overwhelming. The appellant is an Asian – the respondent
of a black woman – and the child’s features leave no doubt
that he is of mixed origin. His hair is Asiatic in semblance.

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Techniques
of legal
Their Lordships order that the appellant pays a lump sum
study of money as compensation. This compensation money
must be used for the welfare and education of his child.

The total compensation is K416.00. This includes the

K216.00 already paid so that he will only pay K200.00 and
Faculty of Law
costs. This money must be held on trust for the child. In
other words, a trustee account must be opened either
with the local court or the District Commissioner.

The Hon. Inkosi Mzukuzuku (Acting Chairman) From Mzimba

The Hon. Chief Katuli (Member) From Mangochi
The Hon. Chief Chimutu (Member) From Lilongwe
The Hon. Mr. N J Mhone (Member)
The Hon. Mr. S.Z.P. Gondwe (Member)
Pronounced in open Court this 10th Day of December, 1979, sitting at
Lilongwe

Law Dip 101

Techniques
of legal In this judgement
study (a) What are the material facts ?

(b) What are the [Legal] issues/ what is the issue?

Faculty of Law (c) What is the reason for the decision

(d) What is the decision

(e) What is the coram comprised of ?

(f) This is a Judgement. What is the difference

between a Judgement and a ruling?

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Techniques Judicial Precedent

of legal
study • Case law is the law made by the judges.
- Judicial It is built out of precedent.
precedent-

• A precedent is previous decision of a

Faculty of Law court which may, in certain
circumstances, be binding on another
court in deciding a similar case.

• A Lawyer needs to have skills in reading

cases. This is where an understanding of
how to read cases becomes important.

Law Dip 101

Techniques Judicial Precedent

of legal
study • Judicial precedent is an adjudged case
- Judicial or decision of a court, considered as
precedent-
furnishing an example or authority for
an identical or similar case afterwards
Faculty of Law arising from a similar question of law.

• Judicial precedent might also be defined

as a system where courts attempt to
decide cases on the basis of principles
established in prior cases.

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Techniques
of legal
study Precedent must be adhered to for the sake
- Judicial of developing the law as a science.
precedent-
Judicial precedents may be divided into
two kinds :
Faculty of Law

(i) Binding precedents

(ii) Persuasive precedents

Law Dip 101

According to George Jessel “the only thing
Techniques in a judge’s decision binding as an
of legal
study authority upon a subsequent judge is the
- Judicial principle upon which the case was
precedent-
decided” Osbourne v Rowlett [1880]13
Ch.774
Faculty of Law
And Bracton CJ ʺIf however similar things
happen to take place, they should be
adjudged in a similar way: for it is good to
proceed from precedent to precedentʺ.
Bracton CJ 1268. With his notebook of
2,000 decided cases, Bracton was the first
to make the law into a science

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In the doctrine of judicial precedent it is
Techniques thus wrong to speak to a decision as
of legal
study binding. What has the binding force is the
- Judicial principle upon which the case was decided.
precedent-

The principle is technically known as the

Faculty of Law ratio decidendi.

-This was also stated in the dictum of

Nunan J in the case of Supervisor of Native
Affairs v British and East African Ltd (1903)
quoted in Chimango L ‘Traditional Law in
Malawi’.

Law Dip 101

It is possible to have more than one ratio (i.e.
Techniques rationes decidendi). Normally this will be
of legal
study reflected by the number of points of law decided
- Judicial often listed as :
precedent-
Held 1.... Held 2.... Held 3.... in the head note to
the case in the law reports.
Faculty of Law
Precedents may also be classified as
(a) Declaratory Precedent
This is one which is merely the application of an
existing rule of law.

(b) An Original Precedent

This is one which creates and applies a new rule

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The doctrine of judicial precedent is important
Techniques for the following reasons:
of legal (i) Certainty
study
- Judicial
(ii) Power of Flexibility and Growth
precedent- (iii) Fairness

(i) Certainty
Faculty of Law • The doctrine brings certainty in the law in the
sense that it is possible to predict the ruling
of a court because judicial decisions tend to
be consistent. This may also help lawyers in
giving legal opinions on a particular matter.
• However, the power and ability of the judges
to distinguish cases may to some extent
frustrate the certainty.

Law Dip 101

(ii) Power of Flexibility and Growth
Techniques • The doctrine promotes flexibility and growth in
of legal the sense that the law tends to keep pace with
study
- Judicial
the times and can adapt itself to changing
precedent- circumstances since new decisions are
constantly being added as new cases come
before the courts. This is achieved by power of
Faculty of Law judges to distinguish and overrule decisions.
(iii) Fairness
• Since the doctrine require that judges should
stick to existing legal principles, it is possible for
like cases to be treated alike. This as a result,
brings fairness in the law.
• It has to be noted that too much adherence to
the doctrine may lead to injustice.

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(B) Judicial Precedent in English Law
Techniques • At English law, the practice of following previous
of legal decisions is derived from custom, but it is a
study practice which is generally observed.
- Judicial
precedent-
• Even in early times the itinerant judges adopted
the doctrine of stare decisis (stare decisis et non
quieta movere - "to stand by and adhere to
decisions and not disturb what is settled."
Faculty of Law
• and this doctrine has been developed in modern
times so that it means that a precedent binds, and
must be followed in similar cases, subject to the
power to distinguish cases in certain
circumstances.
• The modern doctrine of the binding force of
judicial precedent only fully emerged when
(a) there was a good law reporting and
(b) a settled judicial hierarchy.

Law Dip 101

(B) Judicial Precedent in English Law
Techniques • Judicial precedent, in the sense of treating like
of legal cases alike and following established rules of
study
- Judicial
law and practice, has been present in the
precedent- English legal system for many centuries, as is
clear from the continued interest in law
reporting from the 13th century onwards.
Faculty of Law
• The binding force of precedents depended
upon the level of the court in which the
decision was reached.

• Let us look at how the doctrine applies in the

specific courts of England.

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(i) The House of Lords
Techniques • The House of Lords is bound by its own former
of legal decisions, unless they can be distinguished on
study
- Judicial
the facts of the case.
precedent- • Decisions of the House of Lords also bind all
inferior courts.
 Practice Statement [1966] 1 WLR 1234
Faculty of Law  Miliango v George Frank Ltd [1975] 3 WLR 758
• When a court is faced with conflicting decisions
of the House of Lords, the later decision should
be followed- Moodie v Inland Revenue
Commissioners [1993] 1 WLR 266.
• However in civil matters the HOL is bound by
decisions of the European Court of Justice on
European Law

Law Dip 101

Techniques (ii) The Court of Appeal

of legal • The Court of Appeal is bound by its own
study
- Judicial previous decisions, as well as by decisions of the
precedent- House of Lords, unless the previous decisions
can be distinguished or unless it was per
incuriam (made in ignorance of a relevant law)
Faculty of Law

• The court of Appeal is not bound by its own

decisions, if the decisions cannot stand with a
decision of the House of Lords.
 Young v Bristol Aeroplane Co. Ltd [1944]
KB 718

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Techniques
(iii) The High Court
of legal • A High Court judge, although bound by
study decisions of the court of appeal and of the
- Judicial House of Lords, is not bound by the decisions of
precedent-
another high court, sitting at first instance.
Nevertheless such a judge will treat previous
Faculty of Law
decisions as of strong persuasive authority.
 Re Jeffrey S Levitt Ltd [1992] 2 All ER 509
• However, judges still tend to follow the
decisions of their fellow puisne (a legal term of
art meaning “inferior in rank”) judges on the
basis of judicial comity (mutual co-operation)
and certainty.
 Colchester Estates v Carlton Industries [1984]
2 All ER 601

Law Dip 101

Techniques (iii) The High Court

of legal • Where a judge of first instance is
study
- Judicial
confronted by conflicting decisions of the
precedent- court of appeal, in the later of which the
earlier had been fully considered, he is
Faculty of Law
bound to follow the latter decision.
 Miliangos v George Frank (Textiles) Ltd
[1975] 3 All ER 801
• Note: On the criminal side, the court of criminal
appeal is not necessarily bound by its own
decisions, because in purely criminal courts
different considerations apply. However, on the
civil side, the Divisional Court of Queens Bench
is bound by its own previous decisions.

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Techniques (iv) Crown Court

of legal • The Crown court is bound by all courts above it.
study • Its decisions do not form binding precedents,
- Judicial
precedent- though when High Court judges sit in the
Crown Court, their judgements form persuasive
precedents, which must be given serious
Faculty of Law consideration in successive cases, though it is
not obligatory to follow them.
• When a circuit or district judge is sitting, no
precedents are formed.
• Since a crown court cannot form binding
precedents, it is obviously not bound by its
own decisions

Law Dip 101

Techniques (vi) County and Magistrates Courts

of legal • These are called inferior courts
study
- Judicial
• Cases heard in county courts ad
precedent- magistrates courts are not generally
reported, and do not create binding
Faculty of Law
precedents.
• They are therefore also not bound by
their own decision

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Techniques (vii) Judicial Committee of the Privy Council

of legal • Established by the Judicial Committee Act of
study 1933
- Judicial
precedent- • The decisions of the committee are not
binding, either on the committee itself or on
other English courts save the Ecclesiastical
Faculty of Law and prize courts.
• It is the final appeal court for many
Commonwealth countries (the territories)
• The decisions of the committee are not
binding on English Courts but have strong
persuasive authority because of the
seniority of the judges who sit in the Privy
Council

Law Dip 101

Hierarchy of the English Courts
History of European Court of
the Justice
Malawi
legal Judicial Committee of
System House of Lords House of Lords the Privy Council

Faculty of Law
Court of Appeal Court of Appeal
(Civil Division) (criminal Division) Highest Court in
the Territories

Queen’s Bench
High Court Division

County Crown Court

Court Magistrate Courts

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Techniques (C) Judicial Precedent in Malawi

of legal (i) Decisions of English Courts
study
- Judicial
• Since Malawi received English law,
precedent- Malawian courts follow English
decisions on the interpretation of the
Faculty of Law
received law.
• English decisions do not bind the High
Court of Malawi; they only have
persuasive force i.e. if the decisions
were post 1902.
 Dicta of Bolt J in Republic v Allen
1966-68 ALR Mal. 549

Law Dip 101

Techniques (C) Judicial Precedent in Malawi

of legal (i) Decisions of English Courts
study
- Judicial
• A principle of law stated by the Court
precedent- of Criminal Appeal in England may not
be binding on the Supreme Court of
Appeal, but if the principle is of some
Faculty of Law
antiquity, it will be highly persuasive
owing to its antiquity.
 Idana v Republic 1964-66 ALR Mal.
59
 Harrison v Republic 1968-70 ALR
Mal. 324

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Law Dip 101

Techniques (C) Judicial Precedent in Malawi

of legal English decisions- Timeline : Reception date
study • The English decisions after the reception date
- Judicial
precedent- (11th August 1902) have been held not to be
binding on Malawian courts, whilst the earlier
decisions are.
Faculty of Law • This is so because the pre- 1902 decisions
were part of the received law, unlike the post
1902 ones which were not.
• In the cases above cited, the decisions of the
Court of Appeal (of England) referred to the
courts in Malawi were held not to be binding
because they were post – 1902. However,
they were regarded as persuasive.

Law Dip 101

Techniques
(ii) Decisions of the Privy Council
of legal • Cases that went to the Council from Malawi are
study binding on Malawian courts (did any go?)
- Judicial • Highly persuasive on Malawian courts are
precedent-
decisions on cases from other countries (whose
final appellate court was the Privy Council before
1966), that is, if the decisions were on statutes
Faculty of Law
that were/are pari materia (upon the same
matter or subject) with statutes in Malawi. If
they are not on statutes in pari materia but on
common law, it appears they are only persuasive.
• Decisions of the council made after 1966 (when
Malawi severed its appeals to the court), except
when they deal with only the common law, are
not persuasive and can be easily departed from.

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(iii) Decisions of the East African Court of Appeal
Techniques • If decisions of the court were final, i.e. no
of legal
study appeals were made to the Privy Council, then
- Judicial what has been said about the privy council
precedent-
applies.
 Watson v Republic 1923-60 ALR Mal. 935
• BUT English decisions are more persuasive than
Faculty of Law
decisions from the East African Court of
Appeal. This is according to Unsworth CJ in
Fombe v Republic 1964-66 ALR Mal. 96.
(iv) Decisions of the Rhodesia and Nyasaland
Court of Appeal
• What has been said about the decisions of the
East African Court of Appeal applies to this
court.

Law Dip 101

(v) Decisions of the Federal Supreme Court
Techniques • The High Court is bound by the Federal
of legal
study
Supreme Court decisions unless overruled by
- Judicial the Supreme Court of Appeal.
precedent-  Dicta of Smith Ag. J in Lufazema v Republic
1966-68 ALR Mal 415
Faculty of Law • However, the decision of the court is not
binding on the Supreme Court of Appeal, the
reason being that since the Supreme Court of
Appeal replaced the Federal Supreme Court, the
courts are not necessarily of equal jurisdiction
since the Supreme Court of Appeal assumed
(since 1966) one role of the privy council which
was that of a final appellate court. - Zakaria v
Republic 1968-70 ALR Mal 270.

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Law Dip 101

(vi) Decisions of Courts of Equal Jurisdiction
Techniques
of legal • For the sake of consistency in the law,
study courts of equal jurisdiction follow the
- Judicial
precedent- decisions of each other as far as possible.
 Chirwa v Republic 1966-68 ALR Mal.
350
Faculty of Law

Law Dip 101

(vii) Decisions of the Malawi Supreme
Techniques
of legal Court of Appeal
study • Decisions of the MSCA are binding on the
- Judicial
precedent-
high court and all subordinate courts
• The MSCA is not bound by its own previous
decisions
Faculty of Law • In practice the MSCA does usually follow its
own previous decisions (but may depart
from it)
• In Chakuamba v Attorney General MSCA
Civil Appeal No. 20 OF 2000 where the
MSCA applied the principles it laid down in
Nseula v Attorney General MSCA Civil
Appeal No. 32 of 1997

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Law Dip 101

(viii) Decisions of the High Court
Techniques
of legal • Decisions of the high court are binding
study on all subordinate courts
- Judicial
precedent-  R v Zagwa 1923-60 ALR Mal. 415

• The HC is bound by decisions of the MSCA

Faculty of Law
but is not bound by its own previous
decisions
• For the sake of consistency in the law,
the HC follow the decisions of each other
as far as possible (comity)
 Chirwa v Republic 1966-68 ALR Mal.
350

Law Dip 101

(ix) Decisions of industrial relations court
Techniques
of legal and magistrate courts
study • These are called subordinate courts
- Judicial • Cases heard in the IRC and magistrates courts
precedent-
are not generally reported, and do not create
binding precedents.
Faculty of Law
• They are therefore also not bound by their own
decision
• However the IRC produces a report the Malawi
Labour Law Report (MLLR) as part of Law
reporting in Malawi and in fact does apply the
doctrine of stare decisis
 Boloweza and another v Doogles Lodge
[2008] MLLR 362
Question : Is this application legaly binding?

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(x) Commonwealth Decisions
Techniques
of legal • They are not binding on Malawi courts,
study because they are not part of the Malawi
- Judicial
precedent- Court structure.
• Where no English authority is available
for a proposition of law in issue, courts
Faculty of Law
may look to commonwealth authorities
as evidence of English Common law,
where a large number of commonwealth
courts have come to common conclusion
this will be highly persuasive.
 Kaipa v R 1964-66 ALR Mal. 270

Law Dip 101

(D) Constitutional position – Section 11 of the
Techniques Constitution
of legal
study
• Basically s.11 requires that all application and
- Judicial interpretation of the Constitution and any law
precedent- or act of the executive be consistent with the
provisions of the Constitution.
• The provision also requires that interpretation
Faculty of Law
of the Constitution be one that promotes the
values which underlie an open and democratic
society and take full account of the provisions
of Constitutional principles, principles of
national policy and the Bill of Rights.
 Chakuamba v Attorney General MSCA Civil
Appeal No. 20 OF 2000 & Nseula v Attorney
General MSCA Civil Appeal No. 32 of 1997

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(D) Constitutional position – Section 11 of the
Techniques Constitution
of legal
study • According to the section, where
- Judicial applicable, the courts should have regard
precedent-
to current norms of public international
law and comparable foreign case law -
Faculty of Law S.11 (2)(c)
• The section also provides that any law
that ousts or purports to oust the
jurisdiction of the courts to entertain
matters pertaining to the Constitution
shall be invalid- S.11 (4)

Law Dip 101

(E) Learning the law from decided cases
Techniques
of legal
study How judicial precedent works
- Judicial
precedent-
When faced with a case on which there
appears to be a relevant earlier decision,
either by that court or a higher one, the
Faculty of Law judges can do any of the following :
• Follow
• Distinguish
• Overrule
• Reverse

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Follow
Techniques
of legal • If the facts are sufficiently similar, the
study precedent set by the earlier case is
- Judicial
precedent- followed, and the law applied in the
same was to produce a decision

Faculty of Law
Distinguish
• Where the facts of the case before the
judge are significantly different from
those of the earlier one, then the judge
distinguishes the two cases and need not
follow the earlier one

Law Dip 101

Overrule
Techniques
of legal • Where the earlier decision was made in
study the lower court, the judges can overrule
- Judicial
precedent- that earlier decision if they disagree with
the lower court’s statement of the law.
• The outcome of the earlier decision
Faculty of Law
remains the same, but will not be
followed.
• The power to overrule cases is (or
should) only used sparingly because it
weakens the authority and respect of the
lower courts

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Law Dip 101

Reverse
Techniques
of legal • If the decision of a lower court is
study appealed to a higher one, the higher
- Judicial
precedent- court may change it if they feel the lower
court has wrongly interpreted the law.

Faculty of Law
• Clearly when a decision is reversed, the
higher court is usually also overruling the
lower court’s statement of the law

Note : It is wrong to say a judge has been

overruled or reversed. It is the decision that
is overruled or reversed

Law Dip 101

How judicial precedent work
Techniques
of legal
study
- Judicial Reverse
precedent-

Follow Binding
Faculty of Law

Case

Overrule Distinguish

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How do judges really decide cases?
Techniques
of legal
• In the UK, independence of the judiciary was
study ensured by the Act of Settlement 1700, which
- Judicial transferred the power to sack judges from the
precedent-
Crown to parliament
• Cf section 119 of the Constitution
• Therefore theoretically judges should make
Faculty of Law
their decisions based purely on the logical
deduction of precedent, uninfluenced by
political or career considerations.
• The 18th century legal commentator, William
Blackstone, introduced a declaratory theory,
stating that judges do not make law, but
merely, by the rules of precedent, discover and
declare the law that has always been

Law Dip 101

How do judges really decide cases?
Techniques
of legal • ‘[The Judge] being sworn to determine,
study not according to his private sentiments . .
- Judicial
precedent- . not according to own private
judgement, but according to the known
laws and customs of the land: not
Faculty of Law
delegated to pronounce a new law, but
to maintain and expound the old one’

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How do judges really decide cases?
Techniques
of legal
• Blackstone therefore does not accept that
study precedent ever offers a choice between two or
- Judicial more interpretations of the law : where a bad
precedent-
decision is made, he states, the new one that
reverses or overrules it is not a new law, nor a
statement that the old decision was bad law,
Faculty of Law
but a declaration that the previous decision
was ‘not law’ – in other words that it was the
wrong answer
• His view therefore presupposes that there is
always one right answer, to be deduced from
an objective study of precedent.
• Today this position is however considered
somewhat unrealistic.

Law Dip 101

How do judges really decide cases?
Techniques
of legal
• In practice, the judges’ decision may not be as
study neutral as Blackstone declaratory theory
- Judicial suggests : they have to make choices which are
precedent-
by no means spelt out by precedents.
• Yet, rather than openly stating that they are
choosing between two or more equally
Faculty of Law
relevant precedents, the courts find ways to
avoid awkward ones, which give the
impression that the precedents they do choose
to follow are the only ones that could possibly
apply.
• In fact, there are a number of ways in which
judges may avoid awkward precedents that at
first sight might appear binding:

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Law Dip 101

How do judges really decide cases?
Techniques
of legal
• By distinguishing the awkward precedents on
study its facts – arguing that the facts of then case
- Judicial under consideration are different in some
precedent-
important way from those of the previous case,
and therefore the rule laid down does not
apply to them. Since the facts are unlikely to be
Faculty of Law
identical, this is the simplest way to avoid an
awkward precedent, and the courts have made
some extremely narrow distinctions in this way
• By distinguishing the point of law – arguing
that the legal question answered by the
precedent is not the same as that asked in the
present case

Law Dip 101

• By stating that the precedent has been
Techniques superseded by more recent decisions, and is
of legal
study
therefore outdated
- Judicial • By giving the precedent a very narrow ratio
precedent- decidendi. The only part of a decision that
forms binding precedent is the ratio. Since
judges never state that “this is the ratio
Faculty of Law
decidendi”, it is possible to argue which bits of
the judgement actually form the ratio. Judges
wishing to avoid an awkward precedent may
reason that those parts of the judgement
which seem to apply to their case are not part
of the ratio, and are only obiter dicta (other
things said) which they are not obliged to
follow

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• By arguing that the precedent has no clear ratio
Techniques decidendi.
of legal
• By claiming that the precedent is inconsistent
study
- Judicial with a later decision of a higher court, and has
precedent- been overruled by implication.
• By stating that the previous decision was made
per incuriam, meaning that the court failed to
Faculty of Law consider some relevant statute or precedent
(rarely used as it undermines the status of the
court that made it)
• By arguing that the precedent is outdated, and
no longer in step with modern thinking; for
example R v R (Rape: Marital Exemption) [1992]
1 AC 599; [1991] 4 All ER 481when the HOL
overturned a centuries-old common law rule
that rape within marriage was not a crime

Law Dip 101

• Clearly there is considerable room for
Techniques manoeuvre within the doctrine of
of legal
study
precedent, so what factors guide judicial
- Judicial decisions, and to what extent?
precedent-
• Some jurists have ventured to suggest
answers!
Faculty of Law
• Dworkin – argues that judges have no real
discretion in making case law. He sees law
as a seamless web of principles, which
supply a right answer – and only one – to
every possible problem – Dworkin R Law’s
Empire (1986), London: Fontama

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• Critical theorists (David Kairys, 1998)take a
Techniques different view and argue that judges have
of legal considerable freedom within the doctrine
study
- Judicial of precedent. Kairys suggests there is no
precedent-
such thing as legal reasoning, in the sense
of a logical, neutral method of determining
Faculty of Law
rules and results form what has gone
before; judicial decision making is a result
of ‘a complex mixture of social, political,
institutional, experiential and personal
factors’ and are simply legitimised, or
justified by reference to previous cases.
Kairys D The Politics of Law: A Progressive
Critique, (1998) New York: Basic Books.

Law Dip 101

•Griffith: political choices (1997) – argues
Techniques
of legal
that judges make their decisions based on
study what they see as the public interest, but
- Judicial
precedent-
that their view of this interest is coloured
by their background and their position in
society. He suggests that the narrow social
Faculty of Law background, usually public school and [the
elitist] law school of the highest judges
combined with their position as part of the
established authority, leads them to believe
that it in in the public interest that the
established order should be maintained.
 Griffith JAG The Politics of the Judiciary
(1997) London: Fontana

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•Waldron: political choices, but why not?
Techniques
of legal
Waldron in his book, The Law, agrees that
study judges do exercise discretion and that they
- Judicial are influenced by political and ideological
precedent-
considerations, but argues that this is not
necessarily a bad thing. He contends that
Faculty of Law while it would be wrong for judges to be
biased towards one side in a case, or to
make decisions based on political factors in
the hope for promotion, it is unrealistic to
expect a judge to be ‘a political nueter –
emasculated of all valued and principled
commitments.’ Waldron J The Law, (1989)
London: Routledge

Law Dip 101

DO JUDGES MAKE LAW ?
Techniques • Although Judges have traditionally seen themselves
of legal as declaring or finding rather than creating law, and
study frequently state that making the law is the
- Judicial
precedent-
prerogative of the legislature, there are several
areas in which they clearly do make law
1. Historically a great piece of law is and always has
been case law, made by judicial decisions. Contract
Faculty of Law
and law of torts are still largely judge-made
2. Application of law, whether case law or statute, to
a particular case is usually not automatic.
Terminology may be vague or ambiguous, new
developments in social life have to be
accommodated, and the procedure requires
interpretation as well as application – see Airedale
NHS Trust v Bland [1993] AC 789

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DO JUDGES MAKE LAW ?
Techniques 3. Judges have been left to define their own role,
of legal and the role of the courts generally in the
study
- Judicial
political system, more or less as they please
precedent-
• see C (A Minor) v DPP [1995] AC 1; [1995] 2 All
ER 43 where the HOL explained its approach to
Faculty of Law judicial law-making
• Some commentators have criticised the
“growing appetite of some judges for changing
the law themselves, rather than waiting for
parliament to do it’ Bennion FAR, ‘A naked
usurpation’ (1999) 149 New Law Journal 421

Law Dip 101

DO JUDGES MAKE LAW ?
Techniques • The HOL in C (A Minor) v DPP [1995] AC 1;
of legal [1995] 2 All ER 43 laid out five important
study
- Judicial
factors:
precedent- i. Where the solution to a dilemma was doubtful, judges
should be wary of imposing their own answer
ii. Judges should be cautious about addressing areas
where Parliament has rejected opportunities of
Faculty of Law
clearing up a known difficulty, or had passed
legislation without doing so
iii. Areas of social policy over which there was dispute
were least likely to be suitable for judicial law-making
iv. Fundamental legal doctrines should not be lightly set
aside
v. Judges should not change the law unless they can be
sure that doing so is likely to achieve finality and
certainty on the issue

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WHEN SHOULD JUDGES MAKE LAW ?
Techniques
of legal
study • Adopting to social change
- Judicial
precedent-
• Types of law

Faculty of Law • Consensus law-making

• Respecting parliamentary opinion

• Protecting individual rights

Law Dip 101

WHEN SHOULD JUDGES MAKE LAW ?
Techniques
of legal
• Adopting to social change
study • In 1952, Lord Denning gave a lecture called ‘The
- Judicial need for a New Equity’ arguing that judges had
precedent-
become too timid about adapting the law to
changing conditions of society, leaving this role
too much to Parliament.
Faculty of Law
• Lord Scarman in McLoughlin v O’Brian [1983] 1
AC 410; [1982] 2 All ER 1048 stated that the
courts’ function is to adjudicate according to
principle, and if the results are socially
unacceptable, parliament can legislate to
overrule them
• See also Fitzpatrick v Sterling Housing
Association Ltd [2001]1 AC 27; [2000] 1 FLR 271

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Law Dip 101

WHEN SHOULD JUDGES MAKE LAW ?
Techniques • Types of law
of legal
study • Lord Reid has suggested that the basic areas of
- Judicial common law are appropriate for judge-made
precedent- law, but that the judges should respect the
need for certainty in property and contract law ,
and that criminal law, except for the issue of
Faculty of Law
mens rea was best left to Parliament

Law Dip 101

WHEN SHOULD JUDGES MAKE LAW ?
Techniques
of legal
• Consensus law-making
study • Lord Devlin has distinguished between active-
- Judicial law making and dynamic law-making. At first
precedent-
society will be divided about them, and there
will be controversy, but eventually such ideas
may come to be accepted by most members of
Faculty of Law
society, or most members will at least become
prepared to put up with them.
• At this second stage we can say there is
consensus i.e. the way views have changed on
subjects such as homosexuality and sex before
marriage
 Devlin P The Judge, (1979) Oxford: OUP

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Law Dip 101

WHEN SHOULD JUDGES MAKE LAW ?
Techniques
of legal
• Consensus law-making
study • Law-making which takes one side or another
- Judicial while an issue is still controversial is what
precedent-
Devlin calls dynamic law-making and believes
judges should not take part in it because it
endangers their reputation for independence
Faculty of Law
and impartiality.
• Their role is in activist law-making, concerning
areas where there is consensus
 Gillick v West Norfolk and Wisbech Area
Health Authority [1986] AC 112; [1985] 3 All
ER 402

Law Dip 101

WHEN SHOULD JUDGES MAKE LAW ?
Techniques
of legal
• Respecting parliamentary opinion
study • It is often said judges should not make law
- Judicial where there is reason to believe Parliament
precedent-
does not support such changes.
 President of India v la Pintada Compania
Faculty of Law Navigacion SA (The La Pintada) (No.1)
[1985] AC 104; [1984] 2 All ER 773

• Similarly it is sometimes argued that judges

should avoid making law in areas of public
interest which parliament is considering at
the time.

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WHEN SHOULD JUDGES MAKE LAW ?
Techniques
of legal
• Respecting parliamentary opinion
study • Lord Radcliffe suggested that judges should
- Judicial be cautious ‘not because the principle
precedent-
adopted by Parliament are more satisfactory
or more enlightened, but because it is
Faculty of Law unacceptable constitutionally that there
should be two independent sources of law-
making at work at the same time’

• Protecting individual rights

• The argument is that judges can establish
protection for the individual against misuse
of power, where Parliament refuses to do so

Law Dip 101

Advantages of case law
Techniques
of legal
study • Certainty
- Judicial
precedent-
• Detailed practical rules

Faculty of Law • Free market in legal ideas

• Flexibility

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Advantages of case law
Techniques
of legal
 Certainty
study • Judicial precedent means litigants can assume
- Judicial that like cases will be treated alike, rather
precedent-
than judges making their own random
decisions, which nobody could predict.
• This helps people plan their affairs
Faculty of Law

 Detailed practical rules

• Case law is a response to real situations, as
opposed to statutes, which may be more
heavily based on theory and logic.
• Case law shows the detailed application of the
law to various circumstances, and thus gives
more information than statute

Law Dip 101

Advantages of case law
Techniques
of legal
 Free market in legal ideas
study • The right-wing philosopher Hayek has argued that
- Judicial there should be as little legislation as possible, with
precedent- case law becoming the main source of law and that
case law should developing in line with market forces:
if the ratio of a case is seen not to work, it will be
Faculty of Law
abandoned; if it works, it will be followed.
• In this way the law can develop in response to
demand.
• Hayek sees statute law as imposed by social planners,
forcing their views on society whether they like it or
not, and threatening the liberty of the individual
 Hayek F Law, Legislation and Liberty: A New
Statement of the Liberal Principles of Justice and
Political Economy (1982) London: Routledge

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Advantages of case law
Techniques
of legal
 Flexibility
study • Law needs to be flexible to meet the
- Judicial
precedent-
needs of a changing society, and case
law can make changes far more quickly
than Parliament.
Faculty of Law

Law Dip 101

Disadvantages of case law
Techniques
of legal • Complexity and volume
study
- Judicial • Rigidity
precedent-
• Illogical distinctions
• Unpredictability
Faculty of Law
• Dependence on chance
• Unsystematic progression
• Lack of research
• Retrospective effect
• Undemocratic

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Disadvantages of case law
Techniques  Complexity and volume
of legal
study
• There are hundreds of thousands of decided
- Judicial cases, comprising several thousand volumes
precedent- of law reports, and more are added all the
time.
• With the development of the Internet, almost
Faculty of Law
every decided case is available on-line or in
legal databases.
• Judgments themselves are long, with many
judges making no attempt at readability, and
the ratio decidendi of a case may be buried in
a sea of irrelevant material. This can make it
very difficult to pinpoint appropriate
principles.

Law Dip 101

 Rigidity
Techniques • Rules of judicial precedent mean that judges should
of legal follow a binding precedent even where they think it is
study bad law, or inappropriate.
- Judicial • This can mean that bad judicial decisions are
precedent-
perpetuated for a long time before they come before
a higher court with enough power to overrule them

Faculty of Law
 Illogical distinctions
• The fact that binding precedents must be followed
unless the facts of the case are significantly different
can lead to judges making minute distinctions
between the facts of a previous case and the case
before them, so that they can distinguish a precedent
which they consider inappropriate.
• This in turn leads to a mass of cases all establishing
different precedents in very similar circumstances,
and further complicates the law.

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 Unpredictability
Techniques • The advantages of certainty can be lost if too many of
of legal the kind of illogical distinctions referred to above are
study made, and it may be impossible to work out which
- Judicial precedents will be applied to a new case
precedent-
 Dependent on chance
• Case law changes only in response to those cases
Faculty of Law brought before it, so important changes may not be
made unless someone has the money and
determination to push a case far enough through the
appeal system to allow a new precedent to be created
 Unsystematic progression
• Case law develops according to the facts of each case
and so does not provide a comprehensive code. A
whole series of rules can be built on one case, and if
this is overruled the whole structure can collapse

Law Dip 101

 Lack of research
Techniques • When making case law the judges are only presented with
of legal the facts of the case and the legal arguments, and their task
study is to decide on the outcome of that particular dispute.
- Judicial • Technically, they are not concerned with the social and
precedent- economic implications of their decisions, and so they cannot
commission research or consult experts as to these
implications, as Parliament can when changing the law.
• Increasingly, the senior courts have been willing to allow
Faculty of Law
interveners to make representations in the public interest
during court proceedings (for example in Malawi in some
Constitutional matters) . Such an intervener might be, for
example, a charitable body, NGO, or the Law School (amicus
curiæ – friend of court), and they will present to the court
arguments about the broader impact of the case on society,
provide comparisons with practice abroad and refer to
socioeconomic research in the field. In the House of Lords’
last year of operation, it allowed third-party interveners to
make representations in almost a third of its cases

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Techniques
 Retrospective effect
of legal • Changes made by case law apply to events
study which happened before the case came to
- Judicial
precedent-
court, unlike legislation, which usually only
applies to events after it comes into force.
• This may be considered unfair, since if a case
Faculty of Law changes the law, the parties concerned in that
case could not have known what the law was
before they acted.
 SW v United Kingdom [1995] 1 FLR 434, (1995)
The Times, 5 December
 R v C [2004] 3 All ER 1 ; [2004] EWCA Crim 292,
 R v Powell (Anthony) and English [1999] 1 AC 1
 R v Bentley (1953) & R v Bentley (Deceased)
[2001] 1 Cr. App. R. 307

Law Dip 101

Techniques
 Undemocratic
of legal Lord Scarman pointed out in Stock v Frank
study Jones (Tipton) Ltd [1978] 1 WLR 231 that:
- Judicial
precedent- • the judge cannot match the experience
and vision of the legislator;
• and that unlike the legislator the judge is
Faculty of Law not answerable to the people.

Theories, like Griffith’s, which suggest that

precedent can actually give judges a good
deal of discretion, and allow them to decide
cases on grounds of political and social policy,
raise the question of whether judges, who are
unelected, should have such freedom

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Law Dip 101

Summary of important points
Techniques
of legal
(i) ‘Ratio Decidendi’
study • In talking about judicial precedent or stare
- Summary - decisis it is important to remember that, what
has the binding force is the ratio decidendi and
not the decision.
 Dicta of Nunan J in Supervisor of Native Affairs v
Faculty of Law British and East African Ltd (supra)
 Dicta of Jessel J in Osborne v Rowlett (supra)
• According to Reid J in Nash (Inspector of Taxes) v
Tamplin & Sons Brewery (Brighton) Ltd [1952] AC 231,
only those reasons (or reason), which are
necessary to reach the decision in the
particular case, can be ratio.

Law Dip 101

(i) ‘Ratio Decidendi’
Techniques
of legal
• Ratio decidendi has been described in a
study number of ways some of which are:
- Summary -  The legal principle to be derived from the
judges decision on the basis of the facts
regarded by the judge as material. (material
facts are those facts that are necessary for the
Faculty of Law judge’s decision)
 A reason given by a judge for his decision
 The statement of law applied to the legal
problems raised by the facts as found upon
which the decision is based.
 Part of the statement of law which applies to
the actual facts of the case before the court.

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Law Dip 101

Techniques (i) ‘Ratio Decidendi’

of legal • A problem arises where the majority of a
study court favours a reason which does not
- Summary -
support the decision which the court in the
event reaches.

Faculty of Law
• That reason cannot, by definition, be ratio
decidendi because it does not support the
decision, but on the other hand, to treat the
contrary reasoning of the minority as ratio
is logically odd although theoretically it can
be defended.

Law Dip 101

Techniques (ii) Obiter dicta

of legal • Obiter dicta (dictum-singular) refer to
study
- Summary - legal reasons or pronouncements, which
are not necessary for the decision in the
case, and hence are not ratio and not
Faculty of Law
binding.
• They are therefore said to be obiter,
meaning ‘by the way’.
 Dictum of Devlin J in Behrens v
Bertram Mills [1957] 1 All ER 58.

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(ii) Obiter dicta
Techniques
of legal • Although an obiter dictum is not binding on
study subsequent courts, some may be influential or
- Summary - ‘persuasive’ in later cases in helping make up a
judge’s mind on a novel or difficult point.
• If such dicta are used in a later case they may
become binding if they are made part of later ratio
Faculty of Law decidendi.
• Well-known examples of influential obiter dicta are
the ‘neighbour principle’ of Lord Atkin in Donoghue
v Stevenson [1932] AC 562 (HOL), the extension of
this to negligent misstatements in Hedley Byrne v
Heller and Partners Ltd [1963] 3 WLR 101 (HOL) and
Lord Denning’s famous promissory estoppel dicta in
Central London Property Trust Ltd v High
Trees House Ltd [1947] KB 130

Law Dip 101

According to Machika there are two types of obiter
Techniques dicta. He writes that these two types may happen in
of legal
the following ways:
study
- Summary - a) A statement of law is regarded as obiter if it is
based upon facts which either were not found to
exist, or if found to exist, were not found to be
material.
Faculty of Law b) A statement of law, which, although based on the
facts as found, does not form the basis of the
decision is also obiter, e.g. a statement of law
supplementing a dissenting judgment. Also where a
court makes a statement of law leading to one
conclusion and then adopts a contrary decision on
the facts for a different reason, those statements
are necessarily obiter since they d o no support the
decision.

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Law Dip 101

(iii) Overruling
Techniques • This is where a court of competent jurisdiction within
of legal the hierarchy of the courts may declare that the
study decision in a previous case is no longer good law, for
- Summary - example, because that previous court considers that the
rule of law contained in the previous ratio is no longer
supportable or desirable.
• Overruling affects precedent, but does not reach back to
Faculty of Law affect the parties in the original case, now regarded as
wrongly decided.
• A decision can be overruled either by statute or by a
higher court.
• All judicial overruling operates retrospectively. But in
the case of statutory overruling in the absence of
express provision to the contrary, the statute becomes
operative.
• Statutes do not name the decision they overrule while
judges do.

Law Dip 101

Techniques
of legal (iv) Reversing
study
- Summary -
• This is where an appellate court reverses a
decision of a lower court.
• Reversing affects the parties, who are
bound by the decision of the appellate
Faculty of Law
court, and it affects precedent because the
lower courts will in future be bound the
(appellate court) decision.

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Law Dip 101

Techniques
(v) Per Incuriam Statements
of legal • A decision, which is reached per incuriam, is one
study reached through ‘want of care’ and it does not
- Summary -
bind subsequent courts.
• It does signify mere carelessness on the part of
the court, or the fact that the case was badly
Faculty of Law
argued or judgment badly reasoned. It is
confined to the narrow grounds of failure to
consider binding authority or statute.
• In other words, the doctrine of per incuriam has
to be limited to decisions given in ignorance or
forgetfulness of some inconsistent statutory
provision or some authority binding on the court
concerned.

Law Dip 101

Techniques
(vi) Distinguishing
of legal • Distinguishing is a way in which the courts can
study sometimes escape the inconvenience of having
- Summary -
to follow a decision which is regarded as wrong
or not applicable to present circumstances.
• The method is to restrict the former case fairly
Faculty of Law
closely to its particular facts, and to refuse to
apply the principle to facts that are different.
• Cases which are indistinguishable are described
as being ‘on all fours’ with one another.
• Distinguishing is said to affect certainty in
judicial precedent, on the one hand, and on the
other hand it is said to help the courts in
avoiding injustice by unnecessarily sticking to
precedent.

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Law Dip 101

Techniques
(vii) Binding Force
of legal • Binding force originates from the relative
study positions of the two courts within the
- Summary -
hierarchy and in theory has nothing to do
with the merits of the principle as viewed by
the court called upon to apply it.
Faculty of Law • The judgment is not binding except on the
parties themselves, nor are the findings of
fact.
• Not every statement of law in a judgment is
binding only those statements which are
based upon the facts as found and upon
which the decision is based are binding.

Law Dip 101

Techniques
(viii) Persuasive Force
of legal • Persuasive decisions consist of :
study a) decisions made in lower courts
- Summary -
b)obiter dicta at all levels particularly if
made in the higher courts (for example,
in England, obiter dicta of the House of
Faculty of Law
Lords and in Malawi obiter dicta made
by the Malawi Supreme Court of
Appeal), and
c) decisions from other jurisdictions

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Law Dip 101

Techniques
of legal
study

Faculty of Law

Law Dip 101

Statutes and
7. Statutes and statutory interpretation
statutory
interpretation
• Nature and forms of legislation

• The following are the forms of types of

legislation:
Faculty of Law
(i) Acts of Parliament

(ii) Subsidiary Legislation

(iii) Autonomic Legislation

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Law Dip 101

Statutes and
Acts of Parliament
statutory
interpretation
• An Act of Parliament when used with
reference to legislation means an Act of
Parliament, an ordinance, and any applied
Act - s.2(1) GIA
Faculty of Law
• section 48 /49 Constitution.

• This is sometimes referred to as “principal

legislation” as distinguished from
“subsidiary or delegated legislation”.

Law Dip 101

Statutes and
Subsidiary legislation
statutory
interpretation
• By subsidiary legislation meant a
proclamation, regulation, rule, order,
notice, by-law, or other instrument made
under any written law and having
legislative effect – s.2(1) GIA
Faculty of Law

• This is also referred to as “delegated

legislation”.
• The power to make subsidiary legislation
is provided for under s. 58 of the
Constitution.

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Law Dip 101

Statutes and
Autonomic legislation
statutory
interpretation
• Here an autonomous body has
independent power to legislate for its
own members and in some cases, for
members of the general public.
Faculty of Law
• The power is in all cases sanctioned by
parliament.

• Examples of autonomous legislative

bodies include transport authorities and
limited companies.

Law Dip 101

Statutes and
Functions of legislation
statutory (i) Revision of substantive rules of law
interpretation
(ii) Consolidation of enactments
(iii) Codification
(iv) Collection of revenue, that is, taxation is only to
be imposed under law - s.171 of the Constitution
Faculty of Law
(v) Social legislation, i.e. by statutes that are
concerned with the day to day running of the social
system rather than creating criminal offences or
rights and duties between individuals.
(vi) Regulation of criminal conduct – one of the
functions of legislation is to create criminal
offences. This derives from the spirit of the
Constitution that there should be no criminal
liability except imposed by statute.

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Law Dip 101

Statutes and
Operation of Statutes
statutory
interpretation
(i) Geographical Operation
The general presumption is that an Act of
Parliament is operative throughout the
Republic, but not elsewhere unless in either
Faculty of Law
case a contrary intention appears in the Act
itself.

Laws of a country have force only within the

jurisdiction - Mwakawanga v Republic 1968-
70 ALR Mal.14

Law Dip 101

Statutes and
Operation of Statutes
statutory
interpretation (ii) Temporal Operation
(a) When does a statute become operative?
• No law made by Parliament comes into operation until it
has been published in the Gazette – s. 74 of the
Constitution; also see s.9 of the general Interpretations
Faculty of Law Act .

(b) When does a statute cease to be

operative?
• No statute becomes obsolete by passing of time.
• Where the provisions of a statute apply to a state of
constitutional affairs which no longer exist, the statute
may be regarded as obsolete and in abeyance - Regina v
Daudi 1964-66 ALR Mal.233

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Law Dip 101

Statutes and
Temporal operation
statutory
interpretation • However, certain statutes are expressed to be operative
only for a limited period of time, usually because they
are experimental or transitional.
• Otherwise, a statute ceases to have effect only when it
has been repealed by another statute.
• The reason is that only parliament is competent to repeal
Faculty of Law its own enactments.
• Repeal may be express or implied.
• Express in the sense that parliament cannot be
presumed to intend to repeal a statute without
expressing an intention to do so. On the other hand, if
the provisions of a later statute are so inconsistent with,
or repugnant to those of an earlier statute that the two
cannot stand together, the earlier statute stands
impliedly repealed by the later one.
• Mudaliar v Kayisi 1964-66 ALR Mal. 103.

Law Dip 101

Statutes and
Interpretation and construction of Statutes
statutory (i) The need for interpretation and construction of statutes
interpretation
• Interpretation means the process whereby a
meaning is assigned to the words of a statute.
• Construction is the process whereby
uncertainties or ambiguities in a statute are
Faculty of Law
resolved.
(a) Ambiguity
This is where, due to drafting errors, words used in a statute
are found to be capable of bearing one or more literal
meanings.
(b) Uncertainty
It occurs where the words of a statute are intended to apply
to various factual situations and the courts are called upon
to decide whether or not the set of facts before them
amounts to a factual situation envisaged by the Act.

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Law Dip 101

Statutes and
Interpretation and construction of Statutes
statutory (i) The need for interpretation and construction of statutes
interpretation

(c) Supplying Omissions

• It should be accepted that hard cases
make bad law and the courts have from
Faculty of Law time to time been prepared to assume
the authority to supply omissions left by
the legislature.
• This is termed ‘Cassus Omissus’.
Magor and St Mellons RDC v Newport
Corporation [1950] 2 All ER 1226 at 1236.

Law Dip 101

Statutes and
Judicial Approaches to Interpretation
statutory
interpretation
There are three approaches and these are:

(i) Literal rule

Faculty of Law
(ii) Golden rule

(iii) Mischief rule

For the three approaches see: Vacher v The

London Society of Compositors [1913] AC
107

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Law Dip 101

(a) The Literal rule
Statutes and • The rule stipulates that the intention of the legislature
statutory
must be found in the natural literal meaning of the words
interpretation
used.
• If the words used are capable of alternative meanings if
interpreted literally, then the rule cannot apply.
• If there is only one meaning, however, that meaning will
apply regardless of whether it appears unlikely or absurd
Faculty of Law • Where the law has been carelessly drafted it may
produce a manifest absurdity.
IRC v Hinchy [1906] AC 748
• In such cases the literal meaning of the words is never
allowed to prevail.
Dictum of Denning MR in Corocraft v Pan American Airways
[1969] 1 QB 616.
Mussa v Reginam 1923-60 ALR Mal 693
Monteiro v ACME Construction Co. Ltd 1923-60 ALR Mal. 862
Atlas Garage v Blantyre Town Council 1923-60 ALR Mal 852
Osman v R 1964-66 ALR Mal 595

Law Dip 101

(b) The Golden Rule
Statutes and • This rule was propounded by Baron Parke in Becke v
statutory Smith (1836) 2M and W at 195.
interpretation
• It implies that the judge must construe the wording of
the Act according to its literal and grammatical meaning;
• It assumes that the legislature has perfectly expressed
his intention.
• This rule is used by the courts more often than any other,
Faculty of Law & under it the words of the statute will as far as possible
be construed according to their ordinary plain and
natural meaning unless this leads to an absurd result.
• Out of two or more meanings the least absurd should be
adopted.
• A wider application of the golden rule seems to be
inherently subjective and this has been a basis for
criticism.
Nyrho Developments (Pvt) Ltd v Mudi River Water
Board, 1961-63 ALR Mal 405.

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Law Dip 101

(c) The Mischief Rule
Statutes and • This was propounded in Heydon’s case (1584) 3 Co. Rep.
statutory 70 .
interpretation
• Under this rule the judge will look at the Act to see what
was its purpose and what mischief in the common law it
was designed to prevent.
• According to the Heydon’s case the following things have
to be discussed and considered under this rule:
Faculty of Law o What was the common law before the making of the
Act ?
o What was the mischief and defect for which the
common law did not provide?
o What remedy has parliament resolved and appointed
to cure the disease of the common law, and :
o What is the true reason for the remedy? (Judges shall
make such construction as shall suppress the
mischief and advance the remedy).
Gardner v Sevenoaks RDC [1950] 2 All ER 84

Law Dip 101

(c) The Mischief Rule
Statutes and • The narrower operation of this rule is to resolve
statutory
interpretation ambiguities in cases in which the literal rule
cannot be applied.
• In order to ascertain the mischief which the
statute was passed to correct the judge may
legitimately have regard to the preamble of the
Faculty of Law statute, to headings and extrinsic sources such
as reports of commissions which may indicate
the state of the law before the passing of the
Act.

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Law Dip 101

Rules of Interpretation and Construction
Statutes and
statutory
interpretation
(a) A Statute must be read as a whole
• Every section must be read in the light of
every other section, especially in the light
of the interpretation section, and
Faculty of Law schedules, if incorporated into the body
of the Act, must be read with the Act.
• Courts may also refer to the:
o Long title
o Short title
o Headings, and
o Marginal notes

Law Dip 101

Rules of Interpretation and Construction
Statutes and
statutory
(b) The Ejusdem generis rule
interpretation • This rule covers things of the same genus, species or type.
• Under it, where general words follow particular words,
the general words are construed as being limited to
persons or things within the class outlined by the
particular words.
• So in reference to ‘dogs, cats, and other animals’ the last
Faculty of Law
three words would be limited in their application to
animals of the domestic type, and would not be extended
to cover animals such as lions and tigers.
Evans v Cross [1938] 1 All ER 751
Lane v London Electricity Board [1955] 1 All ER 324
Regina v Beswick 1923-60 ALR Mal 623
• The rule can only apply where the words of the statute
create an identifiable genus.
Monteiro v ACME Construction (supra)
• There must be at least 2 specific words to create a genus.

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Law Dip 101

Rules of Interpretation and Construction
Statutes and (c) Penal Provisions
statutory • Penal provisions are construed narrowly.
interpretation
• Where the statute imposes criminal liability or tax
obligations and the statute is ambiguous or uncertain,
it should be construed in favour of the individual.
• The rule raises the presumption of liability without
fault.
Faculty of Law A Ltd v Commissioner of Taxes, 1968-70 ALR Mal 283.
• The rule is not strong enough to displace the literal
rule.
• Where a statute unambiguously creates a criminal
penalty or tax obligation, the court is bound to give
effect to it even though it appears unjust.
(d) The General Interpretation Act
• Courts may also look in this Act for definitions of
certain words.

Law Dip 101

Presumptions in Construction
Statutes and (a) Presumption against alteration of the law
statutory
interpretation
• A statute is not to be taken as affecting a fundamental
alteration in the general law unless it uses words
which point unmistakably to the conclusion.
IRC v Hinchy (supra)
(b) Presumption against depriving a person of
Faculty of Law vested right
• In the absence of express provisions the courts will
not construe a statute as having the effect of
depriving a person of a right vested in him before the
statute came into operation.
Rex v Kanyambo and Chalangwa, 1923-60 ALR Mal. 74
• This traditional approach to interpretation is further
strengthened by principles embedded in the
Constitution related to vested human rights.

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Law Dip 101

Presumptions in Construction
Statutes and (c) Presumption Ousting the Jurisdiction of the Courts
statutory • Individuals cannot by contract, exclude the jurisdiction of
interpretation
the courts.
• If parliament excludes an individual’s recourse to the
courts, it should do so in clear and unambiguous terms.
• Section 41 of the Constitution strengthens this position
as it entrenches the right to access to justice and legal
Faculty of Law remedies. This right cannot be easily ousted by statute.
(d) Presumption that a Statute does not bind the State
• One of the few remains of the prerogative of the crown is
the rule that a statute does not bind the state unless
expressly named in it.
• The rule extends to the state and its servants and agents.
A.G. for Nyasaland v Kaunda and Others 1923-60 ALR Mal. 699
• This was the position at common law. However with the
present constitutional framework the common law
position is unlikely to still be the case.

Law Dip 101

Presumptions in Construction
Statutes and (c) Presumption Ousting the Jurisdiction of the Courts
statutory • Individuals cannot by contract, exclude the jurisdiction of
interpretation
the courts.
• If parliament excludes an individual’s recourse to the
courts, it should do so in clear and unambiguous terms.
• Section 41 of the Constitution strengthens this position
as it entrenches the right to access to justice and legal
Faculty of Law remedies. This right cannot be easily ousted by statute.
(d) Presumption that a Statute does not bind the State
• One of the few remains of the prerogative of the crown is
the rule that a statute does not bind the state unless
expressly named in it.
• The rule extends to the state and its servants and agents.
A.G. for Nyasaland v Kaunda and Others 1923-60 ALR Mal. 699
• This was the position at common law. However with the
present constitutional framework the common law
position is unlikely to still be the case.

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Law Dip 101

Material Aids to Construction
Statutes and (a) Internal Aids
statutory • An internal (intrinsic) aid is one which is to be found
interpretation
within the Government Printer’s copy of the statute itself
- S.61 of the General Interpretation Act (GIA)
• Some of the internal aids that courts may refer to in
cases of ambiguity are:
(i) Long title
Faculty of Law • This begins with ‘An Act’ and goes to describe the
general effect of the Act.
(ii) Short title
• This is the title by which the Acts are commonly and
properly cited.
(iii) Preamble
• Part which proceeds the enactment and sets out the
reason for the statute being passed.
(iv) Headings
• These may precede a section or a group of sections.

Law Dip 101

Material Aids to Construction
Statutes and (v) Marginal Notes
statutory • These are inserted purely for facility of reference, they
interpretation
are not part of the Act but they have been used
before.
(vi) Interpretation Sections
• Every Act of Parliament has an interpretation section.
• This is used and must be referred to in deriving
Faculty of Law
meanings of the words that are used and defined
thereby.
• Whenever an Act defines a word that word takes that
meaning given in the interpretation section to the
exclusion of any other meaning given to that word
anywhere else in including the GIA.
(vii) Schedules
• They prescribe forms, transitional provisions, listing
repeals, furnishing examples etc.

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Law Dip 101

Material Aids to Construction
Statutes and (b) External Aids
statutory • An external aid is one which is not to be found in the
interpretation
Government printer’s copy of the Act.
• The following are the legitimate external aids
(i) Dictionaries – they bear only slight weight
(ii) Reports of committees e.g. reports of law
commissions
Faculty of Law
(iii) Other statutes
BUT the ‘other statutes’ have to be in pari materia
with the one being considered.
Mudaliar v Kayisi (supra)
Nyrho Developments Ltd v Mudi River Water Board
(supra)

Law Dip 101

Additional Rules of Interpretation
Statutes and Courts in interpretation of statutes may also
statutory
interpretation consider the following rules:

(i) Expressio Unius est exclusio alterius

• This simply means the expression of one thing
implies the exclusion of another.
Faculty of Law • Under this rule, where specific words are used
and are not followed by general words, the Act
applies only to the instances mentioned.
• Where a statute contains an express statement
that certain statutes are repealed, there is a
presumption that other relevant statutes not
mentioned are not repealed.

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Law Dip 101

Additional Rules of Interpretation
Statutes and
statutory
interpretation (ii) Noscitur a Sociis
• This simply means the meaning of a word can be
gathered from its context.

• Under this rule words of doubtful meaning may

Faculty of Law take colour and precision from the nature of the
words and phrases with which they are
associated.
R v Allen (1872) 1 ICCR at 374
West Midlands Joint Electricity Authority v
Pitt [1932] 2 KB 46.

Law Dip 101

Statutes and
statutory
interpretation

Faculty of Law

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Law Dip 101

8. The courts and other legal institutions
• History of courts in Malawi
• Court structure
• Jurisdiction of courts Access to justice /
remedies
• Other institutions
o Ombudsman
Faculty of Law
o Human Rights Commission etc.

• Other tribunals
o The IRC
o Arbitration
o Mediation
o Traditional courts
o (Chiefs ?)

DIP 101
Other tribunals and ‘institutions’ for ADR
• National Compensation tribunal
… other  Now defunct by passage of time – section 145(1)
institutions Constitution
• The IRC?
 The IRC although referred to as a tribunal is a court
(subordinate). Its informal character distinguishes it from
other courts
• Arbitration (Arbitration Act)
• Provides doe the settlement of disputes by the appointment
Faculty of Law of an arbitrator/arbitrators – s 8 Arbitration Act
• Mediation (Mandatory mediation Rules)
 Under rules made pursuant to s 59 of the Courts Act, any
civil matter where a claim has been filed and a defence
served must first go to mediation before trial
• Traditional courts
 Local courts still not operational
• (Chiefs ?)
 Strictly speaking, chiefs have no legal authority to adjudge
cases as if they were courts of law. IN practice, chiefs do
adjudicate in most domestic matters, especially in land
matters and the courts may take judicial notice of this.

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DIP 101
Other institutions
… other
institutions • Ombudsman
• Human Rights Commission
• Attorney General
Faculty of Law • Solicitor General
• Director of Public Prosecutions
• Anti-Corruption Bureau (ACB)
• Office of the Director of Public
Procurement

DIP 101
Ombudsman
… other • Office of the Ombudsman
institutions
 Public office section 120 Constitution.
 Constitutional office (institution)
• Independence of the Ombudsman
 “In the exercise of his or her powers, functions
and duties the Ombudsman shall be completely
Faculty of Law independent of the interference or direction of
any other person or authority.” section 121
Constitution
• Appointment (section 122 Constitution)
 Advertised publicly by Clerk to National Assembly
 Successful candidate shall be appointed by the
Public Appointments Committee (of Parliament)
 Amongst other traits, the person should have
sufficient knowledge of the law (see s.122(2)

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DIP 101
Ombudsman
… other • Ombudsmen since 1994
institutions
 Mr Makoza Chirwa – Lawyer
 Mr Enock Chibwana – Lawyer
 Retired Justice Chizumula (Mrs) – lawyer
(Ombudswoman?)
• Functions and powers (s 122 Constitution)
Faculty of Law  The office of the Ombudsman may investigate any and all
cases where it is alleged that a person has suffered injustice
and it does not appear that there is any remedy reasonably
available by way of proceedings in a court or by way of
appeal from a court or where there is no other practicable
remedy.
 …the powers of the office of the Ombudsman under this
section shall not oust the jurisdiction of the courts and the
decisions and exercise of powers by the Ombudsman shall
be reviewable by the High Court on the application of any
person with sufficient interest in a case the Ombudsman
has determined.

DIP 101
Ombudsman
… other • Powers (section 6 Ombudsman Act)
institutions
 Determine the nature and extent of any referred
inquiry or investigation
 Upon issuance of a warrant by a magistrate, have
access to premises, documents
 Summon person to appear before him
Faculty of Law  Administer an oath and take evidence

• Powers of investigation (s 124 Constitution)

 Subpoena the attendance of any person
reasonably connected with an investigation
 Require immediate disclosure of information
 Question any person reasonably connected with
an investigation
 Initiate contempt proceedings
• For details, see section 6 Ombudsman Act

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DIP 101
• Privileges and immunities (s 125
… other Constitution)
institutions  provided with the necessary resources
 entitled to the fullest co-operation of any person
or authority of whom he or she requests
assistance
 enjoy, with respect to his or her official
functions, similar protection and privileges in so
Faculty of Law
far as they are appropriate as are enjoyed by
members of Parliament;
 be paid a salary to be charged to the Consolidated
Fund and which shall not be reduced without the
consent of the office holder.
 The Ombudsman (or any member of staff) shall
not be liable in respect of anything done or
performed in good faith under this Act – s 11
Ombudsman Act

DIP 101
• Remedies (s 126 Constitution)
… other  direct that appropriate administrative action be
institutions taken to redress the grievance;
 cause the appropriate authority to ensure that
there are, in future, reasonably practicable
remedies to redress a grievance; and
 refer a case to the Director of Public Prosecutions
(DPP) with a recommendation for prosecution,
Faculty of Law
and, in the event of a refusal by the DPP to
proceed with the case, the Ombudsman shall
have the power to require reasons for the refusal.
(Section 8(1)(b)(iii) Ombudsman Act includes
referring a case to the Attorney General (AG) or
both the AG and DPP depending on the case)
 See section 8 of the Ombudsman Act for
other remedies and actions that the
Ombudsman may take

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DIP 101
• Reports of the Ombudsman (s 127
… other Constitution)
institutions  The Ombudsman shall lay , each year, before the
Nation Assembly a report which shall include :
 a record of all complaints and applications to
the office of Ombudsman,
 a record of the exercise of powers in relation
to applications,
Faculty of Law
 of the remedies afforded to applicants in
respect of grievances ; and
 shall also include a record of the general
recommendations of the Ombudsman in
respect of grievances.
 Report shall be submitted to Speaker of National
Assembly, and a copy of such report transmitted
to the Cabinet and any other relevant organ of
Government- section 9(i) Ombudsman Act
 For details see section 9(i) Ombudsman Act

DIP 101
• Removal from office (s 128 Constitution)
… other  A person appointed to the office of Ombudsman
institutions shall serve a term of not more than five years,
(provided that the PAC may appoint that person
for such further terms of five years as it considers
appropriate unless that Committee sooner
terminates that appointment.
Faculty of Law
 A person appointed to the office of Ombudsman
shall not be removed by the PAC, except :
 in such circumstances where had that person
not been Ombudsman, that person would
have been disqualified from being appointed;
 for gross misconduct; or
 on reaching the age of sixty-five years.

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DIP 101
• Human Rights Commission (HRC)
… other • Establishment of the MHRC
institutions  “There shall be a Human Rights
Commission the primary functions of which
shall be the protection and investigation of
violations of the rights accorded by this
Constitution or any other law” section 129
Faculty of Law Constitution.
 It is therefore a public & constitutional
institution
 The HRC shall be recognised as a national
institution independent of the authority or
direction of any other body or person –
section 11 Human Rights Commission Act

DIP 101
• Powers of the Commission
… other  The Human Rights Commission shall, (on
institutions application of an individual or class of persons,
or on its own motion) have such powers of
investigation and recommendation as are
reasonably necessary for the effective
promotion of the rights conferred by or under
this Constitution, but shall not exercise a judicial
Faculty of Law
or legislative function and shall not be given
powers so to do - section 130 Constitution)
 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 from any
person, class of persons or body – section 12
Human Rights Commission Act.

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DIP 101
• Composition (section 131 Constitution)
 The Law Commissioner;
… other
 The Ombudsman
institutions
 such persons as shall be nominated from time to time in
that behalf by those organizations that are considered in the
absolute discretion of both the Law Commissioner and the
Ombudsman to be reputable organizations representative of
Malawian Society and that are wholly or largely concerned
with the promotion of the rights and freedoms guaranteed
Faculty of Law by this Constitution.
 The number of other members of the Commission
appointed under section 131 (1) (c) of the Constitution shall
not exceed five at any one time unless the President, on the
recommendation of the Commission, by Order published in
the Gazette, prescribes a greater number of appointed
members – section 3 Human Rights Commission Act
 Unless provided no other member of the Human Rights
Commission shall be a person in any public office or the President
or Vice-President, a Minister or Deputy Minister or a member of
Parliament.

DIP 101
• Attorney General (AG)
… other • Office of the Attorney General
institutions
 “There shall be the office of Attorney General,
who shall be the principal legal adviser to the
Government” – section 98(1) Constitution
 Therefore public & constitutional office
 Falls in the Constitution under “Executive”
Faculty of Law  “The office of Attorney General may either be
the office of a Minister or may be a public
office” – section 98(5) Constitution
 Note : there is no requirement that the holder
be a lawyer although it would be odd if the
holder were not
• Appointment
 “Appointment to the office of Attorney General
shall be made by the President. ” – section 98(3)
Constitution

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DIP 101
• Attorney General (AG)
… other • Functions and powers
institutions
 Chief (principal) legal adviser to the Government
 Litigates for Government but only in civil
matters (in person or though other lawyers in
the Attorney General Chambers )
 All suits by or against the Government are
Faculty of Law through the AG.
 The AG may be the “party” i.e. Chakuamba v
Attorney General MSCA Civil Appeal No. 20 OF
2000 where the MSCA applied the principles it
laid down in Nseula v Attorney General MSCA
Civil Appeal No. 32 of 1997
 Even where the AG is not a party i.e. The State
and another ex parte Khawela and others [2008]
MLLR 283 HC, the AG still represents
Government

DIP 101
• Functions and powers
… other  Is the head of the bar – “Legal practitioners shall
institutions take precedence according to the dates they
signed, ... provided that the Attorney General
and the Solicitor General shall take precedence
before all other legal practitioners and in that
order.” – section 41 Legal Education and legal
Practitioner’s Act
Faculty of Law
 It is therefore assumed that the AG must be a
lawyer or a person well versed with the law
 Note : The AG represents all 3 arms of
Government viz : The Executive, Legislature &
Judiciary
Question : what happens when there is legal
conflict amongst or between any of the 3 arms
of Government?

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DIP 101
• Attorney General (AG)
… other • Removal from office
institutions
 The office of Attorney General shall become
vacant after the person holding that office has
served for five years, or on his or her
resignation or retirement, whichever is sooner,
provided that the person holding that office may
Faculty of Law be nominated for such further terms, not
exceeding five years, as the President considers
appropriate. – section 98(4) Constitution
 If a Minister - “The President shall have the
power to remove Ministers or Deputy Ministers
from their posts.” – section 95(2) Constitution

DIP 101
• Solicitor General (SG)
… other • Office & appointment
institutions
 The title is a misnomer because in Malawi we do
not have Solicitors. In the UK, the Attorney
General operates as the chief advocate of
Government (as a barrister and head of the bar)
whilst a Solicitor General is the head of solicitors
Faculty of Law (not members of the bar)
 It is a office that falls in the Ministry of Justice (&
Constitutional Affairs)
 The SG is the principal Secretary for the Ministry
responsible for Justice
 Therefore it is a public but not a constitutional
office
 Note : there is no requirement that the holder
be a lawyer although it would be odd if the
holder were not

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DIP 101
• Functions and powers
… other  Principal public officer in the Ministry of Justice
institutions  Litigates for Government but only in civil
matters (another anomaly since solicitors do not
appear in court in the strict sense as they are
not barristers)
 In practice works as an assistant to the AG
 In terms of precedence of legal practitioners,
Faculty of Law
ranks second to the AG but is above all other
legal practitioners – “Legal practitioners shall
take precedence according to the dates they
signed, ... provided that the Attorney General
and the Solicitor General shall take precedence
before all other legal practitioners and in that
order.” – section 41 Legal Education and legal
Practitioner’s Act
 It is therefore assumed that the SG must be a
lawyer or a person well versed with the law

DIP 101
Director of Public Prosecutions (DPP)
… other • Office of the DPP
institutions  “There shall be a Director of Public
Prosecutions, whose office shall be a public
office” – section 99(1) Constitution
 Therefore public & constitutional office
 Falls in the Constitution under “Executive”
Faculty of Law
• Appointment [s.101(1) Constitution]
 Appointment to the office of DPP shall be made
by the President and confirmed by the Public
Appointments Committee subject to satisfying
requirements as to :
 competence of the person so appointed to
perform the duties of that office and
 as to capacity of a person so appointed to
pursue prosecutions independently.

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DIP 101
• Independence of the DPP
… other  “In the exercise of the powers conferred
institutions
on him or her by this Constitution or any
other law, the Director of Public
Prosecutions shall be subject only to the
general or special directions of the
Attorney General but shall otherwise
Faculty of Law
act independent of the direction or
control of any other authority or person
and in strict accordance with the law” –
section 101(2) Constitution
 Provided that the Director of Public
Prosecutions or the Attorney General may be
summoned by the Legal Affairs Committee of
Parliament to appear before it to give account
for the exercise of those powers.

DIP 101
• Functions and powers [s.99(2) Constitution]
… other  to institute and undertake criminal proceedings
institutions against any person before any court (other than a
court-martial) in respect of any offence alleged to
have been committed by that person;
 to take over and continue any criminal proceedings
which have been instituted or undertaken by any
other person or authority; and
Faculty of Law
 to discontinue at any stage before judgement is
delivered any criminal proceedings instituted or
undertaken by himself or herself or any other person
or authority. (see also s.77 CP & EC)
 Subject to section 101(2) the powers conferred on the DPP
to take over/continue or discontinue criminal proceedings
shall be vested in him or her to the exclusion of any other
person or authority and whenever exercised, reasons for
the exercise shall be provided to the Legal Affairs
Committee or Parliament within ten days

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DIP 101  The DPP shall have vested in him the right and be
entrusted with the duty of prosecuting all crimes in
… other Malawi – section 76(1) Criminal Procedure &
institutions Evidence Code (CP & EC)
• Delegated powers to prosecute [s.100(1) Const.]
 [Save as provided in section 99 (3)] such powers as are vested in
the office of the DPP may be exercised by the person appointed
to that office or such other persons in the public service, acting
Faculty of Law
as his or her subordinates and in accordance with his or her
general and specific instructions in accordance with an Act of
Parliament.
 Notwithstanding this :
 the DPP shall be accountable to the Legal Affairs
Committee of Parliament for the exercise of such powers in
his or her own behalf and those powers exercised on his or
her behalf by subordinates
 An Act of Parliament shall prescribe restrictions relating to
the exercise of powers under this section by any member
of the Malawi Police Force (now Service)
 See also section 76(2), 78 CP & EC

DIP 101
• Private prosecutions
… other  Any magistrate may permit the prosecution to
institutions be tried by any person (personally or by a legal
practitioner) but no person other than a public
prosecutor or one specially authorised by the
DPP shall do so without permission – s 82(1) (2)
CP & EC
Faculty of Law
• Removal from Office
 The office of the DPP shall become vacant after
the person holding that office has served five
years or on his or her resignation or retirement
whichever is sooner: Provided that the person
holding that office may be appointed for such
further terms, not exceeding five years, as the
President considers appropriate.

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DIP 101
• Removal from Office
… other  A person holding the office of the DPP may
institutions
be removed from the office by the
President before the expiration of his or her
term of office, if the President is satisfied
that the person holding that office :
is incompetent in the exercise of his or
Faculty of Law
her duties;
is compromised in the exercise of his or
her duties to the extent that his or her
ability to exercise his or her functions
impartially is in serious question;
is otherwise incapacitated; or
has attained the age prescribed for
retirement.

DIP 101
Anti-Corruption Bureau (ACB)
… other • Establishment & composition – section 4
institutions Corrupt Practices Act (CPA)
There is hereby established a body to be known as
the Anti-Corruption Bureau which shall consist of
the Director, the Deputy Director and such other
officers of the Bureau, as may be appointed ….
Faculty of Law
The Bureau shall be a Government Department and
the finances of the Bureau shall be charged to the
Consolidated Fund.
The Bureau shall exercise its functions and powers
independent of the direction or interference of any
other person or authority.
The Director shall submit reports to the President
and to the Minister regarding the general conduct of
the affairs of the Bureau.

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DIP 101
Anti-Corruption Bureau (ACB)
… other • Appointment of Director & other staff –
institutions section 5,7 & 9 CPA
The President shall, on such terms and conditions as
he thinks fit, appoint the Director (Deputy), and the
appointment of any person as Director (Deputy)
shall be subject to confirmation by the Public
Faculty of Law
Appointments Committee.
The Director and other officers of the Bureau shall
not, while holding such office, discharge the duties
of any other office of emolument in the Republic.
There shall be appointed in the public service, on
terms and conditions approved by the President,
investigating officers and such other officers of the
Bureau as may be required for the proper
performance of the functions of the Bureau but this
shall not require the confirmation of the PAC.

DIP 101
• Qualification & tenure of Director/ Deputy –
section 6 & 7 CPA
… other
institutions No person shall qualify for appointment as
Director unless he is of high integrity and
possesses qualifications and training necessary
for the performance of the duties of that office.
A person holding the office of Director/Deputy
may be removed from office by the President,
Faculty of Law
with the confirmation of the PAC, for inability to
perform the functions of his office or for
misbehaviour.
The President may, if he considers it desirable in
the public interest so to do, suspend the
Director/Deputy from exercising the duties of the
office of Director/Deputy pending investigations
to determine whether or not the Director/Deputy
may be removed from office.

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DIP 101
• Functions and powers
o Functions – section 10 CPA
… other
take necessary measures for the prevention of corruption in
institutions
public bodies and private bodies
receive any complaints, report or other information of any
alleged or suspected corrupt practice/offence under this Act;
investigate any complaint, report or other information
received;
investigate any alleged or suspected offence under this Act;
Faculty of Law investigate any offence under any written law disclosed in the
course of investigating any alleged or suspected corrupt
practice or offence under this Act;
subject to the directions of the Director of Public
Prosecutions, prosecute any offence under this Act;
investigate the conduct of any public officer which, in the
opinion of the Bureau, may be connected with, or conducive
to, corrupt practices and to report thereon to the appropriate
authority;
inquire into any matter in relation to the exercise of its other
functions under this section.

DIP 101 o Powers – section 11 CPA

For the performance of the functions of the Bureau under
… other this Act, the Director may :
institutions authorize in writing any officer of the Bureau to conduct an
inquiry or investigation into alleged or suspected offences
under this Act;
require any public officer or other person to answer questions
concerning the duties of that public officer or of any other
public officer or other person, and order the production for
Faculty of Law inspection of any standing orders, directives or office
instructions relating to the duties of the public officer or such
other public officer or other person;
require any person in charge of any office or establishment of
the Government, or the head, chairman, manager or chief
executive officer of any public body or private body or produce
or furnish within such time as may be specified by the Bureau,
any document or a certified true copy of any document which
is in his possession or under his control and which the Bureau
considers necessary for the conduct of investigation into any
alleged or suspected offence under this Act;

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DIP 101 o Powers – section 11 CPA

require any person, including any public officer, to provide any
… other information, or to answer any question, in connexion with an
institutions inquiry or investigation under this Act;
do or perform such other acts or things as are reasonably
necessary or required for the exercise of the functions of the
Bureau and the performance of his duties.
upon a warrant issued by a magistrate have—
(a)access to all documents relating to the work of the
Faculty of Law Government or any public body or private body;
(b)access at any time to the premises of any Government
office, public body or private body, or to any vessel, boat,
aircraft etc and search such premises or such vessels if he
has reason to suspect that any property corruptly
acquired has been placed, deposited or concealed therein
 use such reasonable force as is necessary in the
circumstances, and may be accompanied or assisted by such
other persons as he deems necessary to assist him to enter
into or upon any premises, or upon any vessel, boat, aircraft
or other vehicle, as the case may be.

LSMR 101
o Powers of arrest – section 15 CPA
The The Director, the Deputy Director or any officer of the
Malawi Bureau, of such category and such senior rank as the
legal Director may determine, if authorized by warrant issued
system by a magistrate, may arrest any person if he reasonably
suspects that the person has committed or is about to
commit an offence under this Act.

o Immunity of officers of the Bureau – section 22 CPA

No action or other proceedings shall lie against the
Director, the Deputy Director or other officer of the
Bureau in respect of any act or thing done or omitted to
be done in good faith in the exercise of his duties under
this Act.

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DIP 101
• OFFENCES UNDER THE CPA
o Corrupt practices by public or with officers (S.24)
… other
Any public officer who by himself, or by or in conjunction with
institutions
any other person, corruptly solicits, accepts or obtains, or
agrees to accept or attempts to receive or obtain, from any
person for himself or for any other person, any advantage as
an inducement or reward for doing or forbearing to do, or for
having done or forborne to do, anything in relation to any
matter or transaction, actual or proposed, with which any
Faculty of Law public body is or may be concerned shall be guilty of an
offence.
Any person who by himself, or by or in conjunction with any
other person, corruptly gives, promises or offers any
advantage to any public officer, whether for the benefit of
that public officer or of any other public officer, as an
inducement or reward for doing or forbearing to do anything
in relation to any matter or transaction, actual or proposed,
with which any public body is or may be concerned shall be
guilty of an offence.

DIP 101
• OFFENCES UNDER THE CPA
o Corrupt use of official power and procuring corrupt use
… other
institutions of official powers(S.25)
Any public officer who, being concerned with any matter or
transaction falling within, or connected with, his jurisdiction,
powers, duties or functions, corruptly solicits, accepts or
obtains, or agrees to accept or attempts to receive or obtain
for himself or for any other person any advantage in relation
to such matter or transaction shall be guilty of an offence.
Faculty of Law
Any person who, being concerned with any matter or
transaction falling within the scope of authority, or connected
with the jurisdiction, powers, duties or functions of any public
officer, by himself, or by or in conjunction with any other
person, corruptly gives, promises or offers any advantage,
whether directly or indirectly, to such public officer either for
himself or for any other person shall be guilty of an offence.

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DIP 101
• OFFENCES UNDER THE CPA
o Public officers performing functions corruptly (S.25A)
… other
institutions Any public officer who, being concerned with any
matter or transaction falling within or connected
with the jurisdiction, powers, duties or functions of
his office, exercises or performs his powers, duties or
functions corruptly, or otherwise acts corruptly, in
relation to such matter or transaction shall be guilty
Faculty of Law
of an offence.
Any person who uses his influence on, or induces or
persuades, a public officer concerned with any
matter or transaction falling within or connected
with that public officer’s jurisdiction, powers, duties
or functions to exercise or perform his powers,
duties or functions corruptly, or otherwise to act
corruptly, in relation to such matter or transaction
shall be guilty of an offence.

DIP 101 • OFFENCES UNDER THE CPA

o Misuse of public office (S.25B)
… other  Any public officer who uses, misuses or abuses his public office, or
institutions his position, status or authority as a public officer, for his personal
advantage or for the advantage of another person or to obtain,
directly or indirectly, for himself or for another person, any
advantage, wealth, property, profit or business interest shall be
guilty of an offence.
 Any person who uses his influence on, or induces or persuades, a
public officer to use, misuse or abuse his public office, or his
Faculty of Law position, status or authority as a public officer, for such person’s
advantage or for the advantage of another person or to obtain,
directly or indirectly, for such person or for another person any
advantage, wealth, property, profit or business interest shall be
guilty of an offence.
 Where in any proceedings for an offence under this section the
prosecution proves that the accused did or directed to be done, or
was in any way party to the doing of, any arbitrary act which resulted
in the loss or damage of any property of the Government or of a
public body, or the diversion of such property to or for purposes for
which it was not intended, the accused shall, unless he gives proof to
the contrary, be presumed to have committed the offence charged.

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DIP 101 • OFFENCES UNDER THE CPA

o Dealing in contracts (S.25C)
… other  Any public officer who holds information (to which this section
institutions applies) or any person who has, directly or indirectly, obtained any
such information from a public officer whom that person knows or
has reasonable cause to believe held the information by virtue of his
office, and who—
(a) deals in any contract or proposed contract to which the
information relates and in which the public body is involved;
(b) counsels or procures another person to deal in any such
Faculty of Law
contract or proposed contract, knowing or having reasonable cause
to believe that such other person would deal in such contract or
proposed contract;
(c) communicates to any other person the information held or, as
the case may be, obtained by him if he knows or has reasonable
cause to believe that such other person or any other person would
make use of the information for the purpose of dealing in, or
counselling or procuring any person to deal in, any contract or
proposed contract to which the information relates and in which a
public body is involved,
 shall be guilty of an offence.

DIP 101 • OFFENCES UNDER THE CPA

o Disclosure of interest by public officers (S.25D)
… other  Where a contract or proposed contract in which a public officer or
institutions any member of his immediate family, or other close associate of his,
has a direct or indirect interest is, to his knowledge, being, or is to
be, considered—
(a) at a meeting at which the public officer is or will be present; or
(b) in any other circumstances relating to his duties as a public
officer,
such public officer shall, at the commencement of the meeting or at
Faculty of Law
any time upon becoming so aware, declare to the meeting or to the
appropriate authority or in the manner prescribed the nature of
such interest and shall not take part in, or be in attendance during,
the discussion or consideration of the contract or proposed contract
or vote on any matter or do any other thing relating to the contract
or proposed contract.
 Any public officer who—
(a) fails to make a declaration of interest as required);
(b) in making a declaration of interest, makes a false declaration
or a false statement;
 shall be guilty of an offence.

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o Corrupt practices by or with private bodies (S.26)
… other Any person who by himself, or by or in conjunction with
institutions any other person, corruptly solicits, accepts or obtains, or
agrees to accept or attempts to receive or obtain, from
any person for himself or for any other person, any
advantage as an inducement or reward for doing or
forbearing to do, or for having done or forborne to do,
anything in relation to any matter or transaction, actual or
Faculty of Law
proposed, with which any private body is or may be
concerned shall be guilty of an offence.
Any person who by himself, or by or in conjunction with
any other person, corruptly gives, promises or offers any
advantage to any person, whether for the benefit of that
person or of any other person, as an inducement or reward
for doing or forbearing to do, or for having done or
forborne to do, anything in relation to any matter or
transaction, actual or proposed, with which any private
body is or may be concerned shall be guilty of an offence

DIP 101 • OFFENCES UNDER THE CPA

o Possession of unexplained property (S.32)
… other  The Director may investigate any public officer where there are
institutions reasonable grounds to believe that such public officer—
(a) maintains a standard of living above that which is
commensurate with his present or past official emoluments or
other known sources of income;
(b) is in control or possession of pecuniary resources or property
disproportionate to his present or past official emoluments or
other known sources of income; or
Faculty of Law
(c) is in receipt directly or indirectly of the benefit of any services
which he may reasonably be suspected of having received
corruptly or in circumstances which amount to an offence under
this Act.
 Any public officer who, after due investigation carried out is found
answerable to the above shall, unless he gives a satisfactory
explanation to the court as to how else he was able to maintain such
a standard of living, or such pecuniary resources or property came
under his control or his possession, or he came to enjoy the benefits
of such services, shall be guilty of an offence.

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o Attempts, conspiracies (S.35)
… other Any person who attempts to commit, or who aids,
institutions abets or counsels, or conspires with, any person to
commit an offence shall be guilty of committing that
offence.

o Duty of public officers to make reports, etc. (S.36)

Faculty of Law
A public officer to whom any advantage is corruptly
given, promised or offered shall make a full report
of the circumstances of the case to a police officer
or an officer of the Bureau within forty-eight hours
of the occurrence of the event; and if he fails to do
so without reasonable cause he shall be guilty of an
offence and liable to a fine of K10,000 and to
imprisonment for three years.

DIP 101 • PENALTIES

General penalty : Any person who is guilty of an offence
… other shall be liable to imprisonment for twelve years – section
institutions
34 CPA
Where any person is convicted of an offence , the court
shall, in addition to any other penalty that it may pass
under section 34—
(a) order that any money or other pecuniary
Faculty of Law resources, wealth, property, profit, asset, business
interest or other advantage etc ascertained by the
court to have been acquired through or to be tainted
with or otherwise connected with the commission of
the offence shall be forfeited to the Government;
(b) where appropriate, order the convicted person to
pay to the rightful owner the amount or value, as
determined by the court, of any advantage actually
received or obtained by him:

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Office of the Director of Public
… other Procurement (ODPP)
institutions
• Establishment – section 4 Public Procurement Act
(PPA)
 There is hereby established the office of
Director of Public Procurement (in this Act
otherwise referred to as the “Director")
Faculty of Law
whose office shall be a public office, and who
shall be responsible for the administration of
this Act.
• Appointment of Director & other staff – section
6(1) PPA
 The Director shall be appointed by the
President, on such terms and conditions as
the President shall determine.

DIP 101
ODPP
… other • Functions of the Director – section 5 PPA
institutions  Generally the Director shall be responsible for the regulation and
monitoring of public procurement in Malawi, and shall be
accountable to and operate under the general supervision of the
President.
 Specific functions
(a)assist in developing & enhancing the efficiency & effectiveness of
public procurement operations;
Faculty of Law (b) ensure the availability and the accessibility to public officials and the
general public of this Act and regulations made;
(c) develop, in consultation with concerned professional and official
entities, for issuance by the relevant authorities for use throughout
Malawi, standardized and unified procurement regulations, instructions,
and bidding documents, which shall be binding on all Government
Ministries, departments and parastatal organizations;
(d) promote the development of a professional procurement workforce,
including by organizing and conducting training programmes, and
developing government-wide policies and programmes aimed at
establishing procurement-related positions, career paths and
performances incentives;

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DIP 101
• Functions of the Director – section 5 PPA
(e) collect data on public procurement and monitor the performance of
… other Government Ministries, departments and parastatal organizations, and persons
institutions conducting procurement proceedings so as to ascertain efficiency and
compliance with applicable legislation, regulations and instructions;
(f) collect data on the performance of procurement contracts in Malawi by
suppliers, and to maintain and circulate lists of debarred bidders and suppliers;
(g) provide, periodically, a quantitative and qualitative assessment of
procurement activities in Malawi to the Minister, who shall lay the report
before the National Assembly;
Faculty of Law
(h) refer violations of this Act and the Regulations relating to public
procurement to the relevant budgetary and law enforcement authorities;
(i) propose improvements in public procurement procedures;
(j) provide administrative review of bid protests in accordance with section 38;
(k) carry out economic studies on procurement, comparisons, and future
projections, so as to provide advice to the Government in respect of the mid-
term and long-term policy it may formulate in public procurement matters; and
(l) establish a data and information base concerning procurement terminology
and legislation, and to set policy for, and promote the application of, modern
information and communications technology to public procurement.

DIP 101
• Internal Procurement Committees– section 8
… other PPA
institutions  There shall be established in all Ministries,
departments and parastatal organizations, and
other entities and authorities of public
administration in Malawi, Internal Procurement
Committees (IPCs).
Faculty of Law
 The functions of the IPCs shall include—
a) ascertaining the availability of funds to pay for
each procurement;
b) the opening of bids;
c) the examination, evaluation and comparison of
bids, and the selection of the successful bidder;
and
d) such other functions as may be prescribed for
the Committees by the Regulations.

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• Specialised procurement units (SPUs)– section
… other 108 PPA
institutions  Heads of procurement agencies and heads of
other public departments and organizations
may establish specialized procurement units or,
in the case of procurement entities with low
levels of procurement, shared specialized
Faculty of Law
procurement units, and assign to such units
authority to conduct procurement activities in
accordance with this Act and the Regulations.
 The SPUs shall be staffed with personnel trained in
public procurement, and shall include at least two
specialists whose professional qualifications have been
certified by the Director to meet the requirements that
shall have been issued by the Director – section 11

DIP 101
• Qualifications of bidders - section 13
… other o In order to enter into a procurement contract, a bidder
institutions must qualify by meeting the following criteria which the
procuring entity considers appropriate.
 only professional and technical qualifications;
 legal capacity;
 financial resources and condition;
 past performance, including history of legal disputes,
Faculty of Law conviction of a bidder, or of its directors or officers, of
any criminal offence related to their professional
conduct or the making of false statements or
misrepresentations as to its qualifications to enter
into a procurement contract within a period of three
years preceding the commencement of the
procurement proceedings;
 debarment; and
 payment of taxes.

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DIP 101
• Eligibilty - section 14
… other o In order to be eligible to be awarded a procurement
institutions contract, a bidder must be registered, depending upon
the nature of the contract, with the Registrar of
Companies, or with the National Construction Industry
Council of Malawi, or such other entity as may be
prescribed by regulations, but the sole absence of an
application for entry in the registry or classification
Faculty of Law system is not ground for exclusion of a bidder from
participation in procurement
• Conduct of public officials and bidders
• Disclosure of interest
• Tendering proceedings
• Restricted tendering
• Two-stage tendering
• Request for quotations
• Single-source procurement

DIP 101
• Eligibilty - section 14
… other o In order to be eligible to be awarded a procurement
institutions contract, a bidder must be registered, depending upon
the nature of the contract, with the Registrar of
Companies, or with the National Construction Industry
Council of Malawi, or such other entity as may be
prescribed by regulations, but the sole absence of an
application for entry in the registry or classification
Faculty of Law system is not ground for exclusion of a bidder from
participation in procurement
• Conduct of public officials and bidders
• Disclosure of interest
• Tendering proceedings
• Restricted tendering
• Two-stage tendering
• Request for quotations
• Single-source procurement

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• Conduct of public officials and bidders - s 18
… other o Procurring Public officials shall —
institutions  discharge their duties impartially so as to assure
fair competitive access to public procurement by
bidders;
 always act in the public interest, and in
accordance with the objectives and procedures
Faculty of Law set forth in this Act and the Regulations;
 at all times avoid conflicts of interest, and the
appearance of impropriety, in carrying out their
duties and conducting themselves, and shall not
interfere in the work of Internal Procurement
Committees; and
 not commit or abet corrupt or fraudulent
practices, including the solicitation or acceptance
of improper inducements.

DIP 101
• Conduct of public officials and bidders - s 18
… other o Bidders and suppliers shall not engage in or abet—
institutions  corrupt practices, such as the offering of improper
inducements;
 fraudulent practices, including misrepresentation of facts in
order to influence a procurement process or the execution of a
contract;
 collusion among bidders, prior to or after bid submission,
designed to establish bid prices at artificial, non-competitive
Faculty of Law levels and to deprive the procuring entity of the benefits of free
and open competition.
o Disclosure of interest- s 19
 If a public official or member of an Internal Procurement
Committee, acquires any pecuniary interest, direct or indirect,
in any matter to be determined by the Committee he or she
shall declare the interest in accordance with the procedures set
forth in the Regulations, and shall recuse himself or herself
from acting in any way in that matter and shall not take part in
the consideration or discussion of, or vote on any question with
respect to the matter

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DIP 101 • Tendering proceedings - s 18

o Bidders and suppliers shall not engage in or abet—
… other  corrupt practices, such as the offering of improper
institutions inducements;
 fraudulent practices, including misrepresentation of facts
in order to influence a procurement process or the
execution of a contract;
 collusion among bidders, prior to or after bid submission,
designed to establish bid prices at artificial, non-
Faculty of Law competitive levels and to deprive the procuring entity of
the benefits of free and open competition.

• Restricted tendering - s 32
 All suppliers capable of supplying the goods, works or
services shall be solicited.
 When restricted tendering is employed, the procuring
entity shall solicit tenders from a minimum of 3 suppliers.
 The procedures for tendering proceedings in the
Regulations apply to restricted tendering proceedings,
except to the extent they are modified by this section.

DIP 101
• Restricted tendering - s 32
… other  When restricted tendering is employed, all
institutions suppliers capable of supplying the goods, works
or services shall be solicited.
 When restricted tendering is employed, the
procuring entity shall solicit tenders from a
minimum number of three suppliers.
Faculty of Law  The procedures for tendering proceedings in the
Regulations apply to restricted tendering
proceedings, except to the extent they are
modified by this section.

• Tendering proceedings
• Restricted tendering
• Two-stage tendering
• Request for quotations
• Single-source procurement

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DIP 101
• Two stage tendering - s 33
… other  In the case of two-stage tendering proceedings, bidders
institutions are called to submit, in the first stage of the two-stage
tendering proceedings, initial tenders containing their
proposals without a tender price, and the bidding
documents may solicit proposals relating to the technical,
quality or other characteristics of the goods, construction
or services, as well as to contractual terms and conditions
Faculty of Law of supply, and where relevant, the professional and
technical competence and qualifications of the bidders.
 A procuring entity may, in the first stage of the two-stage
tendering proceedings, engage in negotiations with any
bidder whose tender has not been rejected concerning
any aspect of its tender.
 In the second stage of the two-stage tendering
proceedings, a procuring entity shall invite bidders whose
tenders have not been rejected to submit final tenders
with respect to a single set of specifications.

DIP 101
• Request for quotations - s 35
… other  A procuring entity shall request quotations from at least
institutions three bidders.
 A request for quotations shall contain a clear statement
of the requirements of the procuring entity as to quality,
quantity, terms and time of delivery as well as any other
special requirements.
 Bidders shall be given adequate time to prepare their
Faculty of Law quotations, and each bidder is permitted one quotation,
which may not be altered or negotiated, and shall be
submitted in written form including facsimile or telex or
in any other form that leaves a record of the content of
the communication and is acceptable to the procuring
entity.
 The procuring entity shall place a purchase order with the
bidder that provided the lowest-priced responsive bid,
and the successful bidder shall provide written
confirmation of the purchase order.

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DIP 101
• Single-source procurement s 36
… other  Where a procuring entity engages in single-
institutions source procurement, it shall prepare a written
description of its needs and any special
requirements as to quality, quantity, terms and
time of delivery, and may negotiate with the
sole bidder.
Faculty of Law
 Procurement carried out on a single source
basis shall be embodied in a written contract or
purchase order.

DIP 101

… other
institutions

Faculty of Law

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Law Dip 101

9. Legal research
Legal research is a process of finding legal
material.
(A) Types of Legal Research
(i) Academic :
Faculty of Law This is where the research is theoretical and
raises a priori questions.
(ii) Practical
This is where the research is linked to resolution
mechanisms of particular problems.
The type of research method will depend on the
type of problem presented.

Law Dip 101

Legal
research
(B) Functions of Legal Research

• Legal research aims at ascertaining a

legal position of a given situation i.e.
Faculty of Law both practical and assumed.

• Legal research is of enormous

significance in writing presentations,
exams, dissertations and even court
arguments.

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Law Dip 101

Legal (C) Sources of Information

research • Legal research is very much linked to
knowing where to find information, legal &
otherwise.
• Sources of information are traditionally
divided into two categories.
Faculty of Law
• Discussion of sources of law often tells you
where the law and other relevant
information are actually contained
(material sources) and where such material
is stored (physical sources).
• However, emergence of the internet has
provided another source : virtual sources

Law Dip 101

Legal Material sources

research • Material sources are where law is stated
and are divided into two types:
o primary and
o secondary sources.

Faculty of Law
(i) Primary Sources:
• Primary sources are where the law is
actually stated authoritatively.
• These are legislation and decided cases

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Law Dip 101

(ii) Secondary sources
Legal
research
• Secondary material sources are those
places where the law may be stated but
not authoritatively.
• Secondary sources therefore cannot be
used as an authority for a principle of law.
Faculty of Law • Examples of secondary material sources
include :
o Textbooks,
o Journals,
o Hansards,
o Special reports,
o Encyclopaedias,
o Law reform reports
o and non-legal materials e.g. newspapers,
magazines etc.

Law Dip 101

Legal
research Physical sources
• These are sources where sources of
law are physically found

Faculty of Law
Examples:
• Law Libraries
• Archives (both official/national and
institutional)
• Institutional libraries etc.

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Law Dip 101

Legal Virtual sources

research • These are sources where sources of law are
found on the internet
Examples:
• Wikipedia (?????)
• Google search engines
Faculty of Law • Virtual Law Libraries
• Virtual Archives (both official/national and
institutional)
• Virtual Institutional libraries etc.
Caveat :
• Use only reliable sources. The internet is a jungle and
contains useful information but also a lot of
information that can be misleading. Wikipedia is not
an official academic virtual repository

Law Dip 101

Legal Steps/ Methods of Legal Research

research Step 1: Understand and analyse the research problem.
Your analysis will indicate where to get fundamental
information.
Step 2: Identify legal issues, i.e. questions arising from
the analysis and critical look at key aspects concerning
factual concepts.
Faculty of Law Step 3: Find and collect information from primary
sources. Always find the current law. Be aware of latest
amendments in your legislation. Use indexes, table of
contents etc.
Step 4: Find and collect information from secondary
sources.
Step 5: Organise the information – integrate the primary
and secondary sources.
• Make sure you understand the information.
• Do it logically, neatly and critically.

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Law Dip 101

Legal Basic Format for Writing

research Observe three things in presenting the
information (“IBC”)
i. Introduction
a. State issues in question
b. Introduce the points you want to discuss
Faculty of Law
ii. Body
a. Discuss the issues
b. You may include suggestions
c. Cases decided should be brought out
iii. Conclusion
a. You may include specific recommendations

Law Dip 101

Legal Basic Format for Writing

research Most legal writings including pleadings and
judgements follow “FILAC”
i. Facts
a. You give a background of the facts in summary
ii. Issues
Faculty of Law
a. State issues in question which will be dealt with
iii. Law
a. You state the law applicable to your facts
iv. Analysis
a. You discuss and analyse the issues
b. You discuss and analyse the law
c. You apply the law to the facts
v. Conclusion
a. You come out with conclusion flowing from your analysis (plus any
recommendations/prayers etc.)

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Law Dip 101

Legal Basic Format for Writing

research Sometimes the Law & Analysis are combined
under Analysis (Legal Analysis) in the “FIAC”
format
• Whether you use IBC, FIAC or FILAC, each
paragraph must support the one before it
Faculty of Law
so that by the time you come to the
conclusion, the reader has following your
logic sequence.
• Whilst IBC is ideal for basic and short essays,
FIAC/FILAC will be required where analysis/
critique is demanded of you. Therefore
consider FIAC/FILAC as an expanded and
more analytical version of IBC!

Law Dip 101

Other Important Points
Legal
a. Know and understand how to cite the
research
sources. Be especially carefully when citing
secondary sources such as books, journals
and online sources.
b. Always check with your
lecturer/supervisor/editor the styling
Faculty of Law
requirements applicable.
c. Be conversant with names and abbreviations
of law reports of both England and Malawi.
d. Be conversant with titles and abbreviations
of judicial officers, especially in England and
Malawi.
e. Read, edit, read and edit your work
continuously!

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Law Dip 101

Legal
research

Faculty of Law

182