ACCESS TO JUSTICE FOR THE POOR OF MALAWI? AN ... - GSDRC

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magistrates said they did not know what to do in such a case. What was surprisinghowever was that most magistrates who said they would strike down customary lawfor unconstitutionality claimed they did not have jurisdiction to do likewise withstatutory law. This means that they regard customary law as inferior. It is our view,however, magistrates are not competent to decide questions of constitutional validityof laws. This view is supported by the constitution.The study also revealed that in terms of application of constitutional principles tocustomary law three approaches could generally be isolated. These could be termed asthe ‘cautious’, ‘progressive’ and ‘retrogressive’ approaches.Some magistrates were of the view that customary law, unlike statutory law, was away of life for most Malawians and hence it had to be respected. Some of themobserved that they felt uncomfortable with undermining other people’s customs justbecause they disagreed with them. They also noted that judicial officers were in thelight of this fact supposed to exercise extreme caution when challenging customarylaw. They argued that even though they appreciated the fact that any unconstitutionalcustom should not be upheld, they felt they had to tactfully approach this issue inpractice. Indiscriminate challenges to custom would lead to a situation where theparties would lose confidence in the formal court system and consequently they willstart shunning it. This category would just deliver orders bypassing custom withoutcommenting on its constitutionality.The ‘progressive approach’ category of magistrates tries as far as possible to interpretthe laws in line with the constitution. Some radical ones claimed that they even strikedown unconstitutional customs.Although the progressive approach of the magistrates deserves encouragement itraises fundamental questions as to the extent to which magistrates may impose valuesfounded on certain individualistic assumptions to rural societies which are founded oncommunity values. This is partly due to the fact that most of the constitutional valuesthey apply are based on individualistic modes of life which might not be in line withrural modes of social life that are founded on interdependence. The nonindividualisticway of life in rural communities even defines the nature ofrelationships members of the community enter into.Interestingly, some magistrates observed that they did not personally believe in thenorms they were enforcing. The study also established some kind of correlationbetween a magistrate’s cultural background and the type of norms they were ready tochallenge. This might explain why some communities have problems with the valuesthe courts apply. Indeed some communities still insisted that as far as they wereconcerned they would never recognise marriages by permanent cohabitation. Othersclaimed that they had problems with the magistrates’ conceptions of gender equality.The preceding discussion demonstrates the problems of applying human rights valuesin practice and emphasises the fact that magistrates must be slow to arbitrarily imposetheir value systems on communities. Considering that customary law is a way of lifefor these people, modern values must be marketed to the people and they should beallowed to receive and embrace the values. One needs to explore how to transform20
societal values in order to bring them in line with the constitution without necessarilydisrupting the social fabric. It is also doubtful whether the type of magistrate on theground is competent enough to handle this daunting task.This study also revealed certain instances whereby magistrates have condoned orencouraged gross human rights violations through their judgements and women haveparticularly fallen victims of this approach.Magistrates have for example made orders, which confirm negative gender basedstereotypes and consolidate patriarchy.The study found that the magistrates had a shallow understanding of constitutionalrights provisions. At least two of the interviewees confessed that they had never readthe constitution. One of them even alleged that he had received a copy of theconstitution from the first grade magistrate two days before the research team came tovisit him in June 2002.When asked to mention the Constitutional provisions they applied, the respondents,normally mentioned bail provisions. The other constitutional provision which mostmagistrates seemed to know is the one that validates marriage by permanentcohabitation.Resources and management of subordinate courtsOne of the necessary conditions for ensuring access to justice is that a system must beadequately resourced and organised. This study, however, revealed that the judiciarylacks resources to extend the proper administration of justice to rural areas. Morespecifically the judiciary has inadequate and poor quality infrastructure.These problems were said to be attributable to the following causes:• Chronic under-funding of the judiciary. The following data exemplifies theproblem. The approved monthly budget for the whole year is roughly K3 millionto be shared between the High Court and magistrates. The Regional Magistratesbudget fluctuates between K12000 to K100000 per month to cater for stationery,staff allowances, emergencies, funerals and transport.• Centralised administration of funding: Funds from the treasury are forwarded tothe Registrar who then transfers funds to the courts. Sometimes it takes time forfunds to trickle down the system. The judiciary is treated like a small Ministrywhile it is a separate branch of government.• A substantial amount of the judiciary’s resources are absorbed by the highercourts and the administration sections of the judiciary. This is because courtadministrators do not seem to know what the core functions of the judiciary are,hence they spend much time pleasing the higher judiciary.• The fact is that the judiciary does not have a political platform on which to tableits demands because it is not represented at cabinet level. The Minister of Justicewho represents the judiciary in parliament appears detached.• The resource base of the judiciary has not expanded to cater for its additionalresponsibilities following integration. Marshalls have no uniforms, no form oftransport.21
Page 1 and 2: ACCESS TO JUSTICE FOR THE POOR OF M
Page 5 and 6: THE SUBORDINATE COURTSHistory and c
Page 7 and 8: preside over persons who were gover
Page 9 and 10: legality or correctness of any find
Page 11 and 12: efuse to be deployed to rural areas
Page 13 and 14: were more conversant with local cus
Page 15 and 16: orally deliver judgement and the cl
Page 17 and 18: Failure to distinguish civil cases
Page 19: against the defendants on grounds t
Page 23 and 24: Human Resource and Management Issue
Page 25 and 26: Although this situation looks very
Page 27 and 28: needs to find ways of consolidating
Page 29 and 30: The report provides detailed result
Page 31 and 32: Figure 5: Type and number of finali
Page 33 and 34: Figure 7: Type and number of a samp
Page 35 and 36: Figure 10: Throughput of finalised
Page 37 and 38: Figure 13: Type and number of final
Page 39 and 40: THE CUSTOMARY JUSTICE FORUMSIntrodu
Page 41 and 42: JurisdictionCustomary justice forum
Page 43 and 44: democratic environment. In this reg
Page 45 and 46: Views of the informal justice syste
Page 47 and 48: prerogative of transferring them to
Page 49 and 50: comparative advantage over existing
Page 51: offices and magistrates courts. The

ACCESS TO JUSTICE FOR THE POOR OF MALAWI? AN ... - GSDRC

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