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Using the Courts to Protect Vulnerable People: Perspectives from the Judiciary and Legal Profession in Botswana, Malawi, and Zambia

By: Southern Africa Litigation Centre, Republic of Malawi Judiciary, National Association of Women Judges and Magistrates

Vulnerable groups are generally understood to be people who are easily susceptible to discrimination, marginalisation or criticism. These groups experience socio-economic and attitudinal barriers which hamper their ability to exercise their rights. In such cases, there is a need for protection by the state, including the courts, in order to avoid exploitation or harm.

This publication starts from the premise that the judiciary has an important role to play in upholding human rights and promoting the rule of law. The papers represent personal views and experiences, with authors providing reflections on the role of the courts, either in their role as judge tasked with protecting the rights of vulnerable groups, or in their role as lawyer or activist appreciating the potential for courts to protect the rights of vulnerable groups in society.

Table of Contents;
Foreword – Sanji Mmasenono Monageng, First Vice-President, International Criminal Court
Introduction
The Role of the Judiciary in Protecting the Rights of Vulnerable Groups
The Role of the Judiciary in Protecting the Rights of Vulnerable Groups in Malawi – Andrew K.C. Nyirenda SC JA
Judicial Activism and the Protection of the Rights of Vulnerable Groups in Malawi – Lovemore P. Chikopa SC JA
The Role of the Judiciary and the Legal Profession in Protecting the Rights of Vulnerable Groups in Botswana – Dr Oagile B.K. Dingake J
Judicial Decision-Making and Freedom of Expression in Zambia: The Case of
People v Paul Kasonkomona – Sunday B. Nkonde SC
Overcrowding and its Effects on the Health of Prisoners in Malawi: A Role for the Malawian Courts? – Kenan T. Manda J
Realising the Full Potential of Civil and Political Rights for Marginalised Populations in African Countries – Priti Patel
Accused’s Rights and Access to Prosecution Information in Subordinate Courts in Zambia – Sunday B. Nkonde SC and William Ngwira
Examining the Constitutionality of Rogue and Vagabond Offences in Malawi – Chikosa Banda and Anneke Meerkotter
Invoking International Law in Domestic Courts to Protect the Rights of Vulnerable Groups
The Relevance of International Law in Judicial Decision-Making in Malawi – Dr Redson E. Kapindu J
The Role of International Labour Standards in Decision-Making on the Rights of Vulnerable Groups in Botswana – Harold Ruhukya J
International Law, Women’s Rights, and the Courts: A Zambian Perspective – Lillian Mushota
Protecting the Rights of Persons with Disabilities: A View from Zambia – Wamundila Waliuya
Realising the Right to Equality for Vulnerable Groups
An Analysis of Malawi’s Constitution and Case Law on the Right to Equality – Kenyatta Nyirenda J
The Ambit of Prohibited Grounds of Discrimination: Comparative Jurisprudence on HIV Status and Sexual Orientation – Mandala D. Mambulasa
Resolving the Tension between Gender Equality and Culture: Comparative Jurisprudence from South Africa and Botswana – Chipo Mushota Nkhata and Felicity Kayumba Kalunga
Lingering Inequality in Inheritance Law: The Child Born Out of Wedlock in Botswana – Elizabeth Macharia Mokobi
Developing a Conceptual Framework against Discrimination on the Basis of Gender Identity – Dr Chiwoza Bandawe and Anneke Meerkotter