The effectiveness of environmental law in Malawi : an analysis of the principal legal tools for achieving environmental protection with emphasis on the criminal sanction.

Thesis (LL.D.)-Universityof KwaZulu-Natal, Durban, 2006.

The magnitude of environmental degradation in Malawi suggests that environmental law has not been effective. While inadequate enforcement of the law is certainly a significant cause of ineffectiveness, it is demonstrated that the other cause is the current normative state of the law. Malawi uses three traditional legal tools for achieving environmental protection: the criminal sanction, administrative measures and civil measures. An examination of the current environmental laws reveals that the criminal sanction is the primary tool prescribed in Malawian environmental circles. From a stage when the criminal sanction was used to reconcile the parties to a dispute and to discipline the recalcitrant party, the criminal sanction has evolved to the current stage when its purposes are retributive and utilitarian. It is contended that in the context of environmental protection the most acceptable aspect of retribution is just deserts, especially the notion of proportionality. With regard to utilitarianism, deterrence, prevention and reinforcement may in various degrees be regarded as legitimate purposes of the criminal sanction in environmental law. In the current stage of the criminal sanction its operation is affected greatly by the Bill of Rights in Malawi's Constitution. It is suggested that in dealing with various aspects of the criminal sanction vis-a-vis the Constitution, Malawian courts should lean towards saving them from unconstitutionality in the interest of environmental protection. An analysis of Malawi's environmental statutes shows that some of the criminal offences have not been articulated clearly and others conflict with constitutional provisions in a non-defensible way. The criminal sanction is also shown to have weaknesses. When these weaknesses are weighed against the criminal sanction's strengths, it is clear that the criminal sanction has more weaknesses than strengths. This scenario has led many scholars to conclude that criminal sanctions are not appropriate for crimes of all sorts. They suggest that criminal sanctions should be reserved for serious offences and that other measures should be used for less serious offences. While this suggestion certainly has merit especially in respect of First World and Second World countries, the practical realities in Malawi as a Third World country urge a different - but related - approach. These practical realities relate to the availability of alternatives to the criminal sanction in Malawi. An analysis of the alternatives reveals that most of them are not viable alternatives to the criminal sanction in Malawi at present and so criminal sanctions inevitably remain the primary tool for achieving environmental protection. In these circumstances, it is suggested that certain aspects of the criminal sanction should be attended to in order to improve its performance. In this connection, it is suggested that corporate criminal liability must be reformed in order to make available additional bases upon which corporate offenders may be made answerable for their activities. Sentencing must also be reformed in order to prescribe more effective punishments. Further, the use of strict criminal liability should be discouraged: instead there should be wider use of negligence as the fault element and wider use of the due diligence defence. In addition, vicarious criminal liability may be retained as long as an element of fault on the part of an employer or principal is introduced or the defence of due diligence is made available to the employer or principal. Alternatively, vicarious criminal liability may be abrogated in favour of primary criminal liability. Finally, it is suggested that provision be made for the award of costs after successful prosecution of environmental offenders and for the payment of fines to government departments or public bodies responsible for environmental protection.