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

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undertaken. Based on the findings of such an analysis, excess staff shouldeither be posted out to vacant posts or more courtrooms should be built. In theinterim, magistrates should make more optimal use of the ‘idle’ time ofcourtrooms, e.g. postponements and summary judgements could be givenbefore 9h00 or during the lunch break.22 There appears to be an uneven distribution of the Justice budget between theHigh Court and Subordinate Courts and between Regional Magistrates Courtsand the lowest subordinate courts, particularly in far-flung rural areas.Considering that a large percentage of cases are brought to the lowestsubordinate courts, a more equitable distribution of the Justice budget shouldbe formulated.23 As a short-term measure and to ensure that traditional authorities become aliveto the democratic and Constitutional landscape that they now have to operatein, pressure for change can be fostered both by an informed and mobilisedcitizenry and by providing traditional authorities with insights into the humanrights and democratic principles that customary law frustrates. Such trainingand sensitization programmes will not overcome the fundamental legalobstacles of the absence of separation of powers that the role of chiefscurrently represent, nor necessarily ensure accountability and fair trials that nodoubt will continue to take place in customary justice forums, but it isessential for traditional authorities to see themselves as part of the solutionrather than as an intractable problem. This means that sustained and inclusivetraining in human rights, gender rights, principles of democracy, the MalawianConsitution and the underlying principles and administrative practices ofrunning a court, need to be provided both to communities as well as totraditional authorities.24 The situation of chiefs in Area 19 sector 3 of Lilongwe is somewhat differentfrom the traditional authorities in the rest of the country. We thereforerecommend adoption of the following logical process in relation to urban andperi-urban chiefs:♦ recognition of the role that urban and peri-urban chiefs play in theircommunities. This could be done at both policy and legislative levels. Werecommend the adoption of a process similar to that adopted in relation tocreation of community policing structures in urban and rural areas. Thereshould therefore be specific policy framework and rules and regulationsfor the proper functioning of urban and peri-urban chiefs. Such a processshould proceed to the extent of defining the transparency andaccountability required of such chiefs and the possible implications andconsequences of flouting such requirements. Their linkage to stateinstitutions and officials should also be clearly defined to allow forindependence of such urban and peri-urban chiefs. Consideration shouldbe given to making them part of local government.♦ The functioning of urban and per-urban chiefs should be regulated bylinking such structures to the formal institutions such as the police, DC50
offices and magistrates courts. These should provide guidance and regularfollow-ups on matters handled by such chiefs.♦ Alternative Dispute Resolution (ADR) mechanisms should be developedwith the involvement of the chiefs and local communities. Suchmechanisms should provide a basis for training urban and peri-urbanchiefs in ADR. This should be complemented by guidance and supervisionfor institutions in the formal system. Where necessary, Police, DCs orMagistrates could sit in on some ADR cases as part of the hands-ontraining for such chiefs.♦ Appropriate referral mechanisms should be developed for referring casesfrom urban and peri-urban chiefs to the formal system of justice and viceversa.♦ The government, NGOs and donor agencies should support suchinstitutions by providing them with regular training and sensitizationsessions in such issues as human rights, the Constitution and gender. Theurban chiefs should also, at minimum, be provided with resources andfacilities such as stationery (paper and pens) and transport (bicycles).♦ Appropriate incentives should be created for urban and peri-urban chiefs.The current system of “allowances” paid to traditional authorities may beconsidered with the necessary adjustments to make the allowancesmeaningful.<strong>THE</strong> APPENDICESThe report provides, by way of appendices, a Literature Review, a Profile ofMagistrates that were interviewed and a Profile of Traditional Authorities that wereinterviewed.51
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 and 20: against the defendants on grounds t
Page 21 and 22: societal values in order to bring 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: comparative advantage over existing

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

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