Justice Sector and the Rule of Law - AfriMAP

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limit its effectiveness in protecting human rights. 573 It is also not clear whether the courts wouldbe willing to enforce the recommendations of the commission since they refused to do so inrelation to the determinations of the ombudsman in the case of Munthali v Malawi Institute ofEducation. 574Most Malawians cannot access the formal state mechanisms for resolving civil disputes.Consequently, they use non-state institutions and processes in what is known as the ‘informal’or ‘primary’ justice sector. A ‘rapid assessment’ by the British Department for InternationalDevelopment (DFID) MASSAJ Primary Justice Pilot Project confirmed that most people dependon non-state institutions, of which the most frequently used were found to be traditional familycounsellors (ankhoswe), traditional leaders, religious leaders and community, non-governmentaland faith-based organisations. 575 The most common types of disputes dealt with in these forainvolved land, chieftaincy, marriage and domestic violence. 576Although the Constitution recognises customary law as part of the law of Malawi (see above,Chapter 1, section B), the customary law regime consists in general of rules of conduct andinstitutions for their enforcement which are structurally and operationally independent of theinstitutional framework established by the Constitution. Although they share certain basic characteristics,customary laws vary across population groups in the country. The last comprehensivesurvey of customary law applicable to Malawi was conducted in the 1970s. 577It is likely that that the vast majority of civil disputes in Malawi are processed by customaryjustice fora presided over by traditional leaders. 578 It has been estimated that there are at least 24000 such fora, which operate in almost every village. 579 Most communities in Malawi, particularlythose in rural areas, recognise various levels of traditional leadership, including village headmenand women, group village headmen and women and senior ‘traditional authorities’ (chosenaccording to customary rules, but recognised by the president under the 1967 Chiefs Act). 580Traditional authorities, also known as chiefs, are not only physically and financially accessible,but are also experienced in the customary law of the people and readily available. They also
command the respect of their communities by virtue of their customary authority. 581 The experience,availability and respectability of traditional authorities enable them to deliver justice notonly by presiding over adjudicative court processes, but also through mediation and arbitration,even though they have no state-sanctioned powers to impose or enforce punishments.Different customary systems across the country have various levels of non-state traditionalcourts. These courts apply the customary law prevalent in their area of jurisdiction. One keysimilarity across the customary laws of many areas is the dominance of men in the membershipof the courts. On the other hand, customary systems have significant differences amongtheir traditional courts. In the Northern Region and in small parts of the Southern Region, theauthority and power of the courts is based on patrilineal succession. In the Central Region andmost of the Southern Region, however, traditional power and the authority to interpret and applycustomary laws is based on rules of matrilineal succession. This does not mean that judges arenecessarily female, but that chiefs are succeeded to office by their sisters’ children rather thantheir own. There has been no comprehensive survey of the customary laws of Malawi for at least30 years. Therefore, it is impossible to catalogue the similarities and differences among the manytraditional courts that apply customary laws with any greater detail. 582The only link that exists between non-state traditional courts and the formal judiciary is thatthe High Court can in theory review any decision made by any person or institution, includingtraditional authorities, to determine whether it respects and upholds the human rights guaranteedby the Constitution. The constitutional duty to respect and uphold human rights is imposednot only on the three branches of government, but also all its agencies and all persons. 583 Bydefinition this includes the traditional authorities, which are recognised by the president underthe Chiefs Act, as well as those who operate non-state ‘courts’ outside the ambit of the act.Some communities in urban and peri-urban centres also have ‘chiefs’ who play an importantrole in resolving civil disputes. Although they are modelled on the traditional authoritiesrecognised by the president under the Chiefs Act, such ‘chiefs’ do not derive their authorityfrom customary law as such, but operate by the general consent of the community. 584 However,because they operate without specific legal authorisation, decisions of such ‘chiefs’ are open tochallenge by the government, particularly where they run counter to its policies and plans. Anexample of such situations is when the ‘chiefs’ resolve disputes related to land by allocating landfor occupation in areas that are subject to government planning laws. 585Non-state traditional courts have benefited from the growing institutional and publicinterest in informal justice systems. This interest has resulted in interventions which aim tostrengthen the informal sector and its institutions, including traditional courts. An example of
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MalawiJustice Sector and the Rule o
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Judicial review of the constitution
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Numerous individuals and research o
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The 1994 democratic Constitution th
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This discussion paper is based on t
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The Law Commission makes its recomm
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In recent years, government respect
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the effective follow-up of recommen
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funds for this purpose are still su
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The Constitution establishes safegu
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In order for lawyers to effectively
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enhancing consistency, compensation
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tions consistent with human dignity
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As a result of these barriers, most
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The Human Rights Commission is esta
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The end of Banda’s dictatorial ru
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The adoption of a new Constitution
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However, the government withdrew th
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provides the legal framework within
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order. In 1993, after pressure from
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public servant, provides that a pub
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his or her defence at the close of
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The High Court has unlimited origin
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Commission should first undertake f
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court of appeal for cases in tradit
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The Constitution provides for the L
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(CIDA), the Norwegian Agency for De
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annually financed by grants and con
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to pay lawyers in private practice
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give the attorney-general two month
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country-wide food shortage in 2000.
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upon the seriousness of the governm
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country’s vice-president. 173 Amo
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tutions of the justice sector were
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efforts to lobby the government to
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controlled by the Treasury. 201 The
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improving supervision of court regi
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of the deceased spouse. 230 They at
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for other sufficient reason’ to b
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Under the Banda dictatorship the ju
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after official working hours, there
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country. 267 Women, therefore, cons
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has been accepted in lieu of formal
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included extensive coverage of huma
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held disciplinary hearings relating
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for the case from the date when the
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By September 2005, the country had
Page 107 and 108: Legal Education and Legal Practitio
Page 109: Both lawyers and members of the pub
Page 112 and 113: lished between extreme poverty and
Page 114 and 115: on public goodwill to support any r
Page 116 and 117: crime-fighting operations. The oper
Page 118 and 119: Since 1996, the Public Service Act
Page 120 and 121: a change of behaviour of police off
Page 122 and 123: mechanisms for enforcing the author
Page 124 and 125: minister responsible for justice au
Page 126 and 127: The official language of the courts
Page 128 and 129: According to the study, the crimina
Page 130 and 131: his or her continued incarceration.
Page 132 and 133: Conference in 1995. 446 The confere
Page 134 and 135: the Prison Inspectorate, the Prison
Page 136 and 137: long-standing problems. 473 Followi
Page 138 and 139: national standards on the rights of
Page 140 and 141: There is only one known facility th
Page 143 and 144: Court fees in Malawi’s judicial i
Page 145 and 146: In addition to distance, other fact
Page 147 and 148: ing any person access to the courts
Page 149 and 150: There have been several initiatives
Page 151 and 152: Any person or group of persons with
Page 153 and 154: Mwadzangati v Daud Wood t/a Wood Co
Page 155 and 156: The full reports by the ombudsman a
Page 157: The powers of the Human Rights Comm
Page 161 and 162: officers of the ‘traditional or l
Page 163 and 164: The justice sector in Malawi is hea
Page 165 and 166: Another structure that provides the
Page 167 and 168: Most development partners provide t
Page 169 and 170: Donors hire their staff both locall
Page 171 and 172: Department of Legal Aid, the judici
Page 173 and 174: national budget. In the event, the
Page 176: Indicative summary of donor assista
Page 182 and 183: Phiri KM and Ross KR (eds.), Democr
Page 184: Kalekeni Kaphale, lawyer in private
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Justice Sector and the Rule of Law - AfriMAP

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