Between the Global North and the Global South
Edited by David Bilchitz and David Landau
Chapter 8: Separation of powers and the accountability role of NHRIs: the Malawi Human Rights Commission through the courts
National Human Rights Institutions (NHRIs) play an important role in ensuring that Governments are held to account in respect of their human rights obligations. These NHRIs are variously established. Some are established under the Constitution, others are established through ordinary legislation, whilst others are established by executive decrees. This chapter first explores whether NHRIs may always fit into the tripartite separation of powers model of the executive, the legislature and the judiciary (the trias politica). It argues that they may not always fit well into this model and that there are instances where NHRIs should simply be treated as organs of the state sui generis, falling outside this tripartite model. The chapter then examines the specific instance of the Malawi Human Rights Commission (MHRC), and concludes that the MHRC is one of those NHRIs that do not sit well within the trias politica. The chapter winds up by examining how the MHRC has sought to ensure checks and balances with the other organs of the state, especially the executive, through participation in litigation; and also the contribution that the MHRC has made in developing human rights and constitutional law jurisprudence.
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