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African Human Rights Law Journal

versão On-line ISSN 1609-073X

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KAPINDU, Redson E. Courts and the enforcement of socio-economic rights in Malawi: Jurisprudential trends, challenges and opportunities. Afr. hum. rights law j. [online]. 2013, vol.13, n.1, pp. 01-27. ISSN 1609-073X.

Socio-economic rights are of special significance in a developing country such as Malawi. The framers of the Malawian Constitution included the right to development in the country's Bill of Rights. The right to development is not only included as a self-standing right, but is also a conduit for the guarantee of equal access to a range of other socio-economic rights. Regrettably, the record of judicial enforcement of these rights subsequent to 1994 is disappointing. Only in a few cases, largely focusing on a narrow range of rights such as property, work, economic activity and, to a lesser extent, education, have courts directly and significantly dealt with socio-economic rights. Such consideration has also been deficient as courts have failed to develop the content of the rights and to define the nature of the obligations of both the state as well as non-state actors in relation to socio-economic rights. There has been little or no attempt to apply norms of international human rights law and comparable foreign case law. Worse still, in some related cases, courts have stated that they will not deal with any issues that raise policy considerations as such matters are outside the province of judicial competence. This is a problematic approach that could stultify the development of socio-economic rights jurisprudence. The Masangano case, however, offers some hope as it represents the first real attempt to address key socio-economic rights issues such as access to food, clothing, adequate housing and healthcare, albeit in relation to prisoners. While the final decision ultimately turned on cruel, inhuman and degrading treatment or punishment, the High Court of Malawi made some definitive affirmations of the guarantee of a number of these key rights and presented a first real attempt to fashion a time-bound remedy, that also required the state to take positive steps in allocating sufficient resources for the realisation of socio-economic rights for prisoners. The Masangano case represents a good stepping stone upon which courts can stand in developing more systematic and sophisticated jurisprudence on socioeconomic rights in Malawi.

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