Overview
The Constitution of the Republic of Malawi (1994) is the supreme law of the land. While it guarantees broad human rights, the application of these rights to refugees is complex due to the specific limitations in the Refugees Act and Malawi’s reservations to international treaties.
Key Sections for Dzaleka Residents
Section 39: Freedom of Movement
“Every person shall have the right to freedom of movement and residence within the borders of Malawi.”
The Reality for Refugees: While this section says “every person,” the High Court and government policy have interpreted that the Refugees Act (1989) acts as a specific exception to this general right.
- Reservation: Malawi entered a reservation to Article 26 of the 1951 Convention regarding freedom of movement.
- Implication: The Encampment Policy (requiring refugees to live in Dzaleka) is currently legally enforced, overriding the general constitutional right to free movement for this specific group.
Section 41: Access to Justice & Asylum
Subsection (1): “Every person shall have a right to recognition as a person before the law.” Subsection (2): Explicitly guarantees the Right to Asylum.
“…every person… who has a well-founded fear of persecution… shall have the right to asylum in Malawi.”
The Reality: This is a strong protection. It means:
- You have a constitutional right to apply for asylum.
- You cannot be rejected at the border if you are fleeing persecution (non-refoulement).
- You have the right to administrative justice (fair process) if your application is rejected.
Section 24: Rights of Women
Guarantees full and equal protection by the law for women, including strict prohibitions against discrimination.
- Relevance: This protects women in Dzaleka from gender-based violence (GBV) and discrimination. Any customary practice or local rule in the camp that discriminates against women is unconstitutional and void.
Section 19: Human Dignity
“The dignity of all persons shall be inviolable.”
No matter your status—refugee, asylum seeker, or undocumented—you have the right to be treated with dignity. This prohibits cruel, inhuman, or degrading treatment by police, camp security, or any authority figures.