Understanding human rights application in Malawi
Accredited human rights writer, James W. Nickel, defines human rights as basic claims, demands or entitlements and guarantees which are rationally justifiable as they are set against societal threats.
In line with the same view, a prominent Malawian lawyer Chikosa M. Silungwe partially informs that a right also connotes having a claim, liberty of personhood and a state of power or immunity.
Thus, rights are supposed to be basic claims, entitlements and/or guarantees which should be demanded by people as additive base for attainment of their liberty of personhood for empowerment and protectection.
This condition sensibly relates to the primary objective on advent of human rights, which is the achievement of freedom, justice and peace in the world, as Nickel states in his 2007 publication.
Historically, human rights get their genesis from the English’s ancient welfare and livelihoods constitutional bedrock known as the Magna Carta. To date, the world embraced a universal framework on human rights called the Universal Declaration of Human Rights (UDHR).
Based on chapter four of the Republican Constitution of Malawi, human rights should be recognised as legitimate by virtue of their incorporation therein.
That is, adoption of the Bill of Rights into the Constitution of Malawi, with reference to Chapter 4, under sections 15-46, means that the Bill of Rights become part and parcel of the law of the State of Malawi.
Relatively, human rights are also observed with reference to some national and internationally applicable subsidiary and private laws such as the Lands Act (2017) of Malawi and some principalities under the International Labour Organisation (ILO) accordingly.
Otherwise, it has to be taken note that human rights, among other means, are supposed to be legitimately and variably applied through the principle of reasonableness.
Meaning that broad and constitutionally instituted rights should not only be applied absolutely or rigidly but with elaborate invocation of other validly related subsidiary and private laws which espouse on them.
For example, Section 134 of the Lands Act (2017) in Malawi provides specifics as conditionalities over customary land acquisition and/ or ownership. Legislatively provided conditions over land as property discourage possible unfair absoluteness towards application of section 28 (2) of the republican Constitution.
This means that as much as Section 28 (2) of the supreme law provides that ‘no person shall be arbitrarily deprived of property’, as also propounded under Article 17 (2) of the UDHR, ownership of customary land shall not be attained without permission of any person lawfully entitled to such possession as expanded under Section 134 of the Lands Act (2017).
Also, with regard to subsidiary legislation espousing on broad constitutional statements, the Land Acquisition (Amendment) Act No. 9 of 2017 provides powers to the Minister of Lands to acquire land for public utility with respect to assessment and procedural requirements including, in case of necessity, appropriate compensation on subjects.
When human rights are reasonably and relatively applied in the spirit of the veil of constitutional morality, it also implies respect for their legitimate existence.
Dichotomic positions, of both; rights-holders, those who demand enjoyment of rights as well as addressees, ones assigned with duties and responsibilities to fulfil respect for rights, need to uphold reasonableness and variability when applying and living human rights in their daily lives and/or occupations.
This view is justifiable as it also resonates with Nickel’s advocacy on the quest for moral consideration.
Therefore, in view of the foregoing, as we long for interest and betterment of the Republic of Malawi, there is need to be aware that constitutionally embedded rights are part of law and that they are supposed to be reasonably and relatively applied and lived. This position is vital as it would lead to national justice, freedom, and peace thereby mitigating and probably ending some human-rights-based conflicts in the country.
One question of interest arises: Are those demanding as well as addressing human rights in the country cognisant of reasonable constitutional variations or exceptions which render the status of constitutional limitation on human rights enjoyment in Malawi?
