Justice Sector and the Rule of Law - AfriMAP

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