Introduction
The 1994 Constitution of Malawi, enacted following the transition from a one-party state to a multi-party democracy, stands as the supreme law of the land, embodying principles of human rights, democratic governance, and the rule of law. Section 11(1) of the Constitution explicitly mandates the courts to adopt an interpretation that promotes its values and purposes, ensuring its unique and supreme status. This provision has guided Malawian courts in developing interpretive principles that reflect the transformative nature of the Constitution. This essay explores the principles of constitutional interpretation developed by the courts in five landmark judgments since 1994, situating these principles within modern theoretical frameworks of constitutional interpretation, including purposive, textualist, and living constitutionalism approaches. By examining cases such as *Fred Nseula v. Attorney General*, *State v. President of Malawi & Others*, and other pivotal rulings, the essay evaluates how these judgments align with or diverge from contemporary interpretive theories while demonstrating the courts’ role in upholding the Constitution’s supremacy. The discussion further highlights the judiciary’s limited but significant critical engagement with complex constitutional matters, reflecting an evolving interpretative landscape in Malawi.
Context of Section 11(1) and Constitutional Interpretation in Malawi
Section 11(1) of the Malawian Constitution provides that courts must, when interpreting the Constitution, promote the values that underlie an open and democratic society based on human dignity, equality, and freedom. This provision is a directive to move beyond strict legalism, often associated with the pre-1994 era, towards a more progressive, value-driven interpretation (Chirwa, 2007). Modern theories of constitutional interpretation, including purposive interpretation (focused on the Constitution’s objectives), textualism (focused on the literal meaning of the text), and living constitutionalism (emphasizing adaptability to societal changes), offer frameworks to understand how Malawian courts have navigated this mandate. While the judiciary has shown a willingness to embrace progressive interpretive methods, challenges such as limited judicial independence and inconsistent application of principles persist (Kanyongolo, 2006). The following sections analyse five significant judgments to illustrate the principles developed and their alignment with these theoretical frameworks.
Case 1: Fred Nseula v. Attorney General (1997) – Purposive Interpretation
In *Fred Nseula v. Attorney General* (MSCA Civil Appeal No. 32 of 1997), the Malawi Supreme Court of Appeal addressed the right to a fair trial under Section 42 of the Constitution. The court adopted a purposive approach by interpreting constitutional provisions in light of their broader objective to protect fundamental rights. The judgment emphasized that procedural laws must not undermine constitutional guarantees, reflecting a principle of substantive justice over strict adherence to procedural technicalities (Chirwa, 2007). This approach aligns with purposive interpretation theory, which prioritizes the Constitution’s underlying goals over a narrow textual reading. By doing so, the court demonstrated its commitment to Section 11(1)’s mandate to uphold the Constitution’s democratic values. However, the limited depth of reasoning in the judgment suggests a lack of critical engagement with competing interpretations, a common critique of early post-1994 rulings (Kanyongolo, 2006).
Case 2: State v. President of Malawi & Others (1995) – Living Constitutionalism
The case of *State v. President of Malawi & Others* (Constitutional Case No. 1 of 1995) marked a significant moment in Malawi’s constitutional history by addressing the issue of presidential immunity under Section 91. The High Court’s ruling that immunity does not extend to acts outside official duties interpreted the Constitution as a living instrument, adaptable to the democratic aspirations of Malawian society post-1994 (Gloppen & Kanyongolo, 2011). This principle of adaptability aligns with the theory of living constitutionalism, which argues that constitutional provisions must evolve with societal changes. Indeed, the court’s approach under Section 11(1) prioritised the Constitution’s role as a transformative document, though it faced criticism for insufficient engagement with historical or textual contexts that might have supported a narrower interpretation (Gloppen & Kanyongolo, 2011). Nevertheless, this judgment illustrates an emerging judicial awareness of the need to balance constitutional text with contemporary values.
Case 3: Kafantayeni and Others v. Attorney General (2007) – Value-Based Interpretation
In *Kafantayeni and Others v. Attorney General* (Constitutional Case No. 12 of 2005), the High Court tackled the constitutionality of the mandatory death penalty under Section 16 (right to life). The court developed a principle of value-based interpretation, emphasizing human dignity and proportionality as central to constitutional analysis under Section 11(1) (Chirwa, 2014). By declaring the mandatory death penalty unconstitutional, the court aligned its reasoning with purposive and living constitutionalism frameworks, reflecting a commitment to interpret the Constitution in line with evolving human rights norms. This judgment arguably represents a high point in Malawian judicial reasoning, though it has been critiqued for limited reference to domestic cultural contexts that might conflict with universalist interpretations (Chirwa, 2014). The case underscores the courts’ role in embedding constitutional supremacy through progressive interpretation.
Case 4: Malawi Congress Party v. Attorney General (1996) – Textualist Restraint
The decision in *Malawi Congress Party v. Attorney General* (MSCA Civil Appeal No. 22 of 1996) provides an example of a more restrained interpretive principle, leaning towards textualism. The case concerned the interpretation of provisions relating to political party funding under the Constitution. The Supreme Court adopted a literal reading of the text, declining to infer broader principles beyond the explicit wording, thereby prioritizing legal certainty over expansive rights-based reasoning (Kanyongolo, 2006). This textualist approach contrasts with the more dynamic interpretations seen in other cases and raises questions about the consistency of judicial adherence to Section 11(1)’s directive to promote democratic values. While offering clarity, this principle arguably fails to fully engage with the transformative intent of the Constitution, highlighting a tension between competing interpretive theories within Malawi’s judiciary (Kanyongolo, 2006).
Case 5: Mpinganjira v. Speaker of the National Assembly (2020) – Hybrid Interpretation
Finally, *Mpinganjira v. Speaker of the National Assembly* (Constitutional Court Case No. 1 of 2020), part of the landmark electoral dispute following the 2019 presidential elections, showcases a hybrid interpretive principle combining purposive and living constitutionalism approaches. The Constitutional Court interpreted provisions on electoral integrity (Sections 76 and 77) to annul the election results, emphasizing transparency and accountability as fundamental democratic values under Section 11(1) (Chigawa, 2021). The court’s reasoning reflected a purposive focus on the Constitution’s democratic intent while adapting to contemporary demands for credible elections, aligning with living constitutionalism. However, critics note that the judgment’s extensive reliance on foreign jurisprudence risks overshadowing local context, a limitation in its critical depth (Chigawa, 2021). This case exemplifies the judiciary’s growing confidence in asserting constitutional supremacy, albeit with room for more nuanced domestic analysis.
Analysis of Theoretical Frameworks in Malawian Judgments
The five judgments discussed reveal a spectrum of interpretive principles developed by Malawian courts under Section 11(1), each reflecting elements of modern constitutional theories. The purposive approach in *Fred Nseula* and *Kafantayeni* prioritizes the Constitution’s objectives, ensuring rights protection aligns with democratic ideals. Living constitutionalism, evident in *State v. President of Malawi* and *Mpinganjira*, demonstrates adaptability to societal shifts, though it occasionally lacks grounding in local norms. Conversely, the textualist restraint in *Malawi Congress Party* highlights judicial caution, potentially undermining transformative goals. Generally, the judiciary’s interpretive evolution shows a preference for purposive and living approaches, aligning with Section 11(1)’s mandate, though inconsistent critical depth across cases suggests uneven development (Chirwa, 2007). This mix of frameworks indicates a judiciary grappling with balancing constitutional supremacy against practical and cultural constraints.
Conclusion
In conclusion, Malawian courts have, since 1994, developed diverse principles of constitutional interpretation under Section 11(1), ranging from purposive and value-based approaches in *Fred Nseula* and *Kafantayeni* to textualist restraint in *Malawi Congress Party* and hybrid methods in *Mpinganjira*. These principles reflect modern interpretive theories such as purposive interpretation, living constitutionalism, and, to a lesser extent, textualism, demonstrating the judiciary’s commitment to upholding the Constitution’s unique and supreme status. However, the inconsistent application of critical analysis and occasional over-reliance on foreign jurisprudence highlight areas for improvement. The implications of this evolving interpretive landscape are significant: while the judiciary plays a pivotal role in Malawi’s democratic consolidation, achieving a consistent, contextually grounded approach remains a challenge. Therefore, future judicial training and discourse should focus on harmonizing global interpretive standards with local realities to fully realize the transformative potential of the 1994 Constitution.
References
- Chigawa, M. (2021) ‘Constitutional Court Rulings and Electoral Integrity in Malawi: A Post-2020 Analysis.’ *Malawi Law Journal*, 14(2), pp. 45-67.
- Chirwa, D. M. (2007) ‘Human Rights under the Malawian Constitution: A New Dawn?’ *Journal of African Law*, 51(1), pp. 33-58.
- Chirwa, D. M. (2014) ‘The Death Penalty in Malawi: Constitutional and Human Rights Perspectives.’ *African Human Rights Law Journal*, 14(2), pp. 278-304.
- Gloppen, S. and Kanyongolo, F. E. (2011) ‘Courts and the Poor in Malawi: Economic Marginalization, Vulnerability, and the Law.’ *International Journal of Constitutional Law*, 9(2), pp. 258-293.
- Kanyongolo, F. E. (2006) ‘Malawi: Justice Sector and the Rule of Law.’ *Open Society Initiative for Southern Africa Report*.
