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

comparative advantage over existing customary forum in that, in theory, theywill be more accountable since they will be subordinate to the High Court.Safeguards must, however, be put in place to avoid destroying the positiveattributes of the informal justice systems in the process. This can be achievedby allowing these forums relative independence. The formal system shouldonly come in by way of appeal or review. Although deliberate codification ofcustomary law is an exciting idea, it should be approached cautiously.Attempts to codify customary law in other jurisdictions met with limitedsuccess regardless of the approach that was taken. What has been successfulhowever have been attempts to restate in an authoritative form the customarylaws of a given society. The object of these attempts has not been to prepare acode but to furnish to the courts a guide to the applicable laws. Nevertheless,whatever form it takes the reduction of customary law into writing would notfail to have a very important effect on the administration of law in that it willbring in more certainty to its application. However, it might have thedisadvantage of rendering customary law less adaptable to changing socialconditions. We would, therefore, concur with those who recommend thegradual development of customary law through court rulings. Scholars wouldonly then be able to sift common customary law rules from them. We alsorecommend that higher courts must start sitting with assessors to guarantee theauthenticity of customary law jurisprudence that will emanate from them.18 The law must introduce mechanisms to ensure that victims and witnesses areprotected from abuse. More specifically these programmes must be targeted atraising awareness of the needs of the vulnerable or intimidated witnesses. Thesystem should also adopt legislation to co-ordinate victim support services.Additionally, courts must be given statutory power to exclude the public fromthe courtroom when vulnerable victims are giving evidence.19 Case files are poorly kept. Record-keeping is sub-standard. This ispredominantly due to a lack of stationery, official forms and storage facilities.However, it may also be due to low levels of meticulousness and training. It istherefore necessary to provide the necessary stationery, forms and storagefacilities. Administration staff should also be trained. The use of meticulousand trained staff could be sent on circuit to train other administration staff,who seem not to understand the purpose of keeping files in good order orattaching a copy of the summons to the file of the court record.20 The throughput of cases was surprisingly good. Problems seem to occurpredominantly in the Lilongwe District Courts, especially where othercriminal justice departments are tardy. An integrated criminal justice approachneeds to be applied to minimise delays. Magistrates should urge other criminaljustice department staff to ensure that they do not delay matters, and wheredilatory practices continue should use their powers of dismissing the case.21 There appears to be an uneven distribution of the workload among 2 nd grademagistrates in Lilongwe District Courts. In addition, there are too fewcourtrooms, which means that many magistrates and their clerks are notoptimally utilised. A needs and output analysis of these courts should be49