In Malawi a system of Traditional Courts (also known as Native Courts or Local Courts under colonial legislation) has been used for much of the twentieth century to mediate civil disputes and to prosecute crimes, although for much of the colonial period, their criminal jurisdiction was limited. From 1970, Regional Traditional Courts were created and given jurisdiction over virtually all criminal trials involving Africans of Malawian descent, and any appeals were directed to a National Traditional Court of Appeal rather than the Malawi High Court and from there to the Supreme Court of Appeal, as had been the case with the Local Courts before 1970.
The Traditional Courts were supposed to operate in accordance with African law and custom, although they applied an authoritarian, restrictive and punitive version of customary law, in line with the views of Hastings Banda, the first President of Malawi. During the 1970s and 1980s, these courts gained a reputation for being used to prosecute Banda's political opponents and being corrupt. After the restoration of multi-party politics, the operation of the Regional Traditional Courts and the National Traditional Court of Appeal was suspended in 1993.
Many of the former lower-level Traditional Courts became magistrates' courts, able to apply customary law, but subject to appeal to the High Court. The Malawi Constitution of 1994 recognised customary law as an integral part of the legal system and provided for Traditional Courts with limited jurisdiction over civil and minor criminal cases, but no legislation to set up such courts was introduced until 2011. In February 2011, the Malawi Parliament approved legislation re-introducing local traditional courts handling most civil cases and some minor criminal cases, as a means of making justice more accessible to rural Malawians. This legislation had not been put into effect because of financial constraints as of May 2017.
History of customary law In pre-colonial times, customary African law comprised a flexible set of rules on conduct and social obligations which was accepted by the community. Customary African law has been typified by as more concerned with the resolution of disputes than the punishment of crimes. Many systems of customary African law have little recognition of crimes, in the sense of a specific offence committed against, and prosecuted by, a society as opposed to torts or civil wrongs to be pursued by the individual affected as a plaintiff. Some offences, for example patricide, incest or witchcraft were, however, so serious as to be regarded as crimes against the community involving the death of those guilty.T O Elias, (1972). The Nature of African Customary Law, Manchester University Press, pp. 110-12, 116 . . Although it has sometimes been claimed that, because of its flexibility and basis in custom, it was not really law, experts in African legal systems such as Eugene Cotran have demonstrated it was. Cotran also showed that, despite some informality, assemblies of people meeting to administer customary law are clearly courts. However, in the colonial period, English law and legal procedures were introduced and given priority over customary Law, which tended to be labelled “native law”, “local law” or “traditional law”. Europeans also sought to codify these laws, which as a result, became increasingly rigid.E Cotran, (1966). The Place and Future of Customary Law in East Africa in East African Law Today, London, British Institute of International and Comparative Law, pp 72, 82-3.
From 1902, English law was established as the normally-recognised legal code in the Nyasaland Protectorate, and a High Court was established on the English model. Customary law was allowed (but not mandatory) in cases involving Africans, if that "native" law or custom was not repugnant to English legal principles. It was generally regarded as repugnant in three areas; witchcraft, the use of poison ordeals and existence of slavery. The prohibition of customary law in these areas weakened the authority of traditional leaders who administered that law.Z. Kadzimira (1971), Constitutional Changes in Malawi, 1891–1965, Zomba, University of Malawi History Conference 1967, pp. 82. From the late 19th century, the protectorate was divided into districts, with a Collector of Revenue (later called a District Commissioner in charge of each, responsible for collecting taxes and also with judicial duties that were not finally revoked until 1962.J McCraken, (2012). A History of Malawi, 1859–1966, Woodbridge, James Currey pp. 70, 222-5. . At first, the powers of existing chiefs were minimised in favour of direct rule by the Collectors. Hereditary chiefs and appointed headmen with very limited powers acted as local intermediaries between the protectorate administration and the local people. Indirect rule was instituted in 1933; the chiefs and their councils became Native Authorities with limited judicial powers, usually restricted to civil cases under customary law and little money to enforce them. However, the Native Courts established by legislation in 1933 provided a recognised forum in which customary law applied, mainly in such areas as marital disputes, inheritance and disputes about the right to use certain land.R. I. Rotberg, (1965). The Rise of Nationalism in Central Africa: The Making of Malawi and Zambia, 1873–1964, Cambridge (Mass), Harvard University Press, pp. 48–50. The procedures in these courts were meant to be simple and expeditious, and the Native Courts Ordinance 1933 prohibited legal representation of defendants in the interests of achieving substantial justice, without involving legal technicalities.S Roberts, 1963. A Note on Recent Legal Developments in Nyasaland, Journal of African Law, Vol. 7, No. 3, p. 179.
It was argued by Martin Chanock that, as a reaction to the rapid social and economic changes that took place in the late pre-colonial and early colonial periods, older men in many African communities sought to impose their authoritarian and restrictive interpretation of customary law, which they used to control younger men and particularly women. It was this view of traditional law as a punitive instrument rather than a means of mediating disputes that was presented to the Europeans codifying these laws. It was also the view of traditional law in Malawi that inspired both the then-Prime Minister, Banda, and the Minister of Justice Orton Chirwa to criticise such principles of English-based law as the presumption of innocence, the need to establish guilt beyond reasonable doubt and the requirement for corroborating evidence. By 1969, Aleke Banda, the Minister of Finance, openly attacked the use of defence lawyers and the safeguards or restrictions imposed by the English-law Rules of evidence. Dr Banda specifically linked traditional law to punishment, and claimed that lack of evidence was not proof of innocence.M Chanock (1976) Neo Traditionalism and the Customary Law in Malawi, pp. 80-4. http://www.jlp.bham.ac.uk/volumes/16/chanock-art.pdf
The traditional courts Shortly before independence, which took place in 1964, a Local Courts Ordinance in 1962 amended the 1933 Native Courts legislation, and recognised several levels of courts with varying powers to hear disputes based on customary law and some criminal cases. After independence, this ordinance was renamed the Traditional Courts Act, 1962. The local courts set up were no longer solely the courts of traditional chiefs, as had been the case under the 1933 legislation, although many such chiefs were appointed to them. This legislation provided guarantees of a fair trial, including the possibility of legal representation and the right to appeal to the High Court.F E Kanyongolo, (2006). Malawi: Justice sector and the Rule of Law, Open Society Initiative for Southern Africa, p. 44. . The 1962 Act, provided that customary law should only apply if not inconsistent with any written law in force, and its courts could only hear types of case they were specifically authorised to try, generally excluding the more serious criminal cases. The legislation made it clear that, in criminal cases, these courts were to apply the existing penal code and not customary criminal rules. The Local Courts Ordinance 1963 allowed legal representation of defendants, at the discretion of the court. Also in 1962, the judicial powers of the district commissioners were ended and they were replaced by legally trained magistrates.S Roberts, 1963. A Note on Recent Legal Developments in Nyasaland, Journal of African Law, Vol. 7, No. 3, pp. 178-9, 183.M Nzunda, (1985). Criminal Law in Internal Conflict of Laws in Malaŵi, Journal of African Law, Vol. 29, No. 2, pp. 129-30.
From 1970, the Local Courts (Amendment) Act, 1969 transformed the traditional courts system. It set up three Regional Traditional Courts and a National Traditional Court of Appeal above the existing network of lower-level traditional courts set up under the 1962 Act, and gave them extended criminal jurisdiction (including all homicide and treason cases involving Africans), using "customary" rules of evidence and procedure. These lower courts consisted of two grades of local traditional courts, Traditional Appeal courts that heard determine appeals from these courts and District Traditional courts. In each case, the civil and criminal jurisdiction of the court was determined by the warrant that established it, as varied by any later ministerial orders. Although the criminal law set out in the Malawi Penal Code, which was based on the colonial code of 1930, remained unchanged and applied to both the High Court and the Traditional courts, cases were dealt with in different ways in the two sets of courts. Traditional courts only apply those such sections of the penal code that the Minister of Justice directed and had their own rules of procedure. They were not bound by the same rules of evidence as the High Court, but applied the customary law of their area, supplemented by ministerial directions. Defendants usually had no choice of which court would try them; if they were African, it would be a Traditional Court.M Nzunda, (1985). Criminal Law in Internal Conflict of Laws in Malaŵi, pp. 138, 140.