Updated December 2009
Note: See also PATEL, N 2009 Promoting the Effectiveness of Democracy Protection Institutions in Southern Africa: The Malawi Human Rights Commission and the Office of the Ombudsman [PDF document], EISA Research report No 46.
The Malawi Human Rights Commission (MHRC) is enshrined in the 1994 Constitution (Articles 129-131) for the protection and investigation of violations and of the rights accorded by the Constitution or any other law. The Constitution requires that the MHRC consists of the persons holding the positions of Law Commissioner and Ombudsman and five commissioners, nominated by the Law Commissioner and the Ombudsman in consultation with civil society groups. The MHRC is mandated to investigate 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 practical remedy.
Notwithstanding the 1994 constitutional provision, the HRC only became fully functional five years later in 1999. For two years after the passage of the constitution, the commission was inactive due to a lack of funding. In 1996, parliament finally included a small budget line for the Human Rights Commission. This enabled the Law Commissioner and Ombudsman to take up their responsibilities. They were, however, constrained by the lack of enabling parliamentary legislation setting out operating procedures as well as inadequate resources. Despite the circumscribed working conditions, the two serving commissioners set to work, and within six months had drafted enabling legislation for the functioning of the commission and submitted it to the attorney-general's office. For over a year, the pending legislation was passed from one drafting committee to another, with repeated promises of passage. Legislation on the membership, responsibilities and powers of the commission was finally passed by parliament in June 1998. This allowed for the appointment of the other commissioners and commission staff commencing the full-time functioning of the commission.
Although the wait for the enabling legislation was unduly long, the Human Rights Commission Act of 1998 is a well-drafted law that gives the commission broad powers to be effective and autonomous (Human Rights Watch 2001) . Section 12 states that 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 by any person, class of persons or body." Section 15 gives the Human Rights Commission broad powers to hear and obtain any necessary evidence, to conduct searches after obtaining a warrant issued by a magistrate, and to exercise "unhindered authority" to visit detention center "with or without notice." The law encourages the commissioners to "develop work relationships" with the NGO human rights sector and to foster cooperation with other government agencies on human rights issues. The commissioners can comment publicly on any human rights issue and make recommendations to the executive and legislative branch. Any person, including government employees, who interferes or obstructs the work of the commission can be subject to a fine and to imprisonment of up to five years (Section 34).
The MHRC has investigative powers but does not have powers to prosecute except by way of making recommendations to the Director of Public Prosecution to consider carrying out prosecutions on cases emanating from the MHRC. The decisions and the powers are subject to judicial reviews.
A study released in 2005 by the Malawi Human Rights Commission (MHRC) found that police frequently subjected suspects to torture and other serious abuse when conducting investigations. The MHRC called for the introduction of a compensation fund to assist victims of police abuse and relatives or persons who died in police custody; however, no such fund had been established by the end of 2006. The MHRC also expressed concern over reports of parents forcing their daughters into marriages for food. The MHRC was charged with monitoring, auditing, and promoting human rights and conducting investigations regarding violations of human rights; however, a shortage of resources resulted in a backlog of cases, delayed production of reports and failure to expand human rights monitoring. While complete statistics had not been published by year's end, the MHRC reported that it had received 867 complaints of human rights violations during the year; most were related to labour issues, inadequate access to the judiciary, violations of children's rights, restrictions on property rights, economic activity and rights of prisoners (Bureau of Democracy, Human Rights and Labor 2007) . The ombudsman's freedom of action was circumscribed by legislation that requires a warrant and a three day waiting period to gain access to certain government records.
The MHRC has three regional offices in each of Malawi's three regions. It should receive its funding from the government by law and may also receive donations, provided that this does not jeopardise its independence or impartiality. The MHRC is mostly government funded but the funding is inadequate and it lacks the required staff and equipment to function effectively. The ombudsman is accountable to the Parliamentary Committee on the Ombudsman. The ombudsman submits a report to parliament annually of all complaints and applications filed, the exercise of powers in relation to applications, the remedies afforded to applicants in respect of their grievances and a record of the general recommendations of the ombudsman in respect of grievances.
According to the 2004 National Integrity Systems Report by Transparency International, the MHRC is perceived as one of the most efficient public institutions in the country and in 2001 the public in Malawi voted ombudsman Enock Chibwana "man of the year" for his tireless struggle for justice and the protection of the rights of the people in the country (Transparency International 2004) . However, the lack of resources mentioned above is a restraint. Sometimes officials at the MHRC work in fear of unknown reprisals and a culture of silence has a negative hangover on the people who do not yet know their right to justice and do not report cases of maladministration to the ombudsman. There are also delays by affected parties in implementing the rulings of the ombudsman and the problems associated with the Ombudsman Act, which some commentators have said creates jurisdictional overlaps between the ombudsman, the Constitution and the courts, according to the report. A review of the Ombudsman Act began in 2005 after it came under attack. Section 121 of the Constitution states the independence of the office from interference or direction of any other person or authority. However, the Executive has been accused of political interference and unwillingness to release adequate funding for the MHRC through the Treasury.
Malawi Human Rights Commission: http://www.malawihumanrightscommission.org/ [opens new window] (accessed 8 Mar 2010).
BUREAU OF DEMOCRACY, HUMAN RIGHTS AND LABOR 2007 Country Reports on Human Rights Practices 2006: Malawi.
CONSTITUTION OF THE REPUBLIC OF MALAWI 1994, [www] http://www.sdnp.org.mw/constitut/brfindx.html [opens new window] (accessed 22 Feb 2010).
HUMAN RIGHTS COMMISSION ACT, 1998.
HUMAN RIGHTS WATCH 2001 "Government Human Rights Commissions in Africa" IN Human Rights Watch Report 2001.
TRANSPARENCY INTERNATIONAL 2004 'National Integrity Systems Country Study Report-Malawi'.