MALAWI

Maj Dan Kuwali

• Dy Director of Legal Services

•Alumni, JA OBC, TJAGSA
•LL.D.

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FIRST ANNUAL AFRICA MILITARY LEGAL CONFERENCE
 The Military Justice System
in Malawi
• Epilogue
•The Malawi Defence Force (MDF)
• Types of Courts in Malawi
• Sources of Law
• Defence Force Act
• Military crimes vs. Civil offences
• Jurisdiction questions
• Key
• Prologue
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FIRST ANNUAL AFRICA MILITARY LEGAL CONFERENCE
 Malawi Defence Force

• Established by the Constitution, s. 158

•Functions of the MDF, s. 159
•Civilian control of the Military
•The Defence Council
•Minister, PS, High Command, SG, etc
•Parliamentary Committee on Defence and
Security
•Judicial Review thru the AG
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FIRST ANNUAL AFRICA MILITARY LEGAL CONFERENCE
 Types of Courts in Malawi

• The Supreme Court

•The High Court
•Subordinate Courts
•Magistrate courts
•Industrial Relations Court
•Court Martial

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FIRST ANNUAL AFRICA MILITARY LEGAL CONFERENCE
 Sources of Law in Malawi

• Supremacy of the Constitution, s. 5

•Sources of Law, s. 200:
•Constitution
•Acts of Parliament, e.g., the Defence Force Act
•International Law, i.e., dualistic, e.g. ICC Act
•Customary international law

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FIRST ANNUAL AFRICA MILITARY LEGAL CONFERENCE
 Defence Force Act
• Provides for administrative, disciplinary,
training matters, etc; i.e., military justice
• Provides for persons subject to military law
•Outlines military offences and punishment
• Extra-territorial application
• Establishes the Directorate of Legal Services,
MP etc
• SJR, Rules of Procedure, Ct Martial Rules etc
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FIRST ANNUAL AFRICA MILITARY LEGAL CONFERENCE
 Military crimes v. Civil
Offences
• Military offences are outlined in the DFA,
e.g., AWOL, desertion etc
• Civil offence: (peace time) offence against
civilian or civilian property
•Treason, murder and rape in civil courts
•Conviction by civil courts, no fine-dismissal
• 48hr rule; 8 day report to DPP for detainees
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FIRST ANNUAL AFRICA MILITARY LEGAL CONFERENCE
 Jurisdiction Questions
• Military or Civil?
•Place of crime; Witnesses; ask AG
•MP responsible for military discipline
• Summary jurisdiction, cf.
• rank and punishment,
•accused may opt court martial
• Court Martial,
• ad hoc; LtCol below;
•convened by ASA; Col above- High Court
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FIRST ANNUAL AFRICA MILITARY LEGAL CONFERENCE
 Key
• Directorate of Legal Services (DOLS)
•disseminate IHL ; teach administrative law and human
rights; criminal procedure (training manual)
•Enhance discipline; avoid abuse of discretion
•Acquaint w/ principles of natural justice; double
jeopardy, etc
• respect the constitution and the rule of law
• Training of trainers, paralegals, etc.
• Transparency and accountability
•Right to appeal, Defence Council, High Court, SCA
•Ombudsman, Human Rights Commission
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FIRST ANNUAL AFRICA MILITARY LEGAL CONFERENCE
 Epilogue

•The role of lawyers to

•guide Commanders; and
•shape the military justice system

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FIRST ANNUAL AFRICA MILITARY LEGAL CONFERENCE