Chief Justice of Malawi

The Judiciary of Malawi is the branch of the Government of Malawi which interprets and applies the laws of Malawi to ensure equal justice under law and to provide a mechanism for dispute resolution. The legal system of Malawi is based on English law, modified since 1969. The Constitution defines the judiciary as a hierarchical system of courts, with the highest court being a Supreme Court of Appeal, together with a High Court and a number of magistrates' courts.

The Supreme Court of Appeal has jurisdiction only in appeals from lower courts. It is composed of the Chief Justice and nine other Justices.

The High Court of Malawi has unlimited original jurisdiction to hear and determine any civil or criminal proceedings. It has a General Division which may also hear appeals from subordinate courts, and a Commercial Division, dealing with commercial or business cases. Most High Court cases are heard before a single judge, without a jury, but cases on constitutional matters must be heard by three judges.

One subordinate court is the Industrial Relations Court with jurisdiction over employment issues. Cases before it are heard informally, and with some restrictions on legal representation, by a panel consisting of a chairperson and one representative each of employers and employees. Other subordinate courts are the magistrates' courts and local or traditional courts. These have defined criminal and civil jurisdiction depending on their level, but expressly excluding cases of treason, murder or manslaughter.

During colonial rule, the hierarchy of courts began with magistrates' courts in the towns, rising to a High Court and finally a Supreme Court of Appeal. In addition, mainly in rural areas, there were several levels of local courts with varying powers to hear disputes such as divorces and other matrimonial issues, inheritance and access to land based on traditional customary law. These courts also heard minor criminal cases specified in the Malawi Penal Code, using an expedited procedure. These were subordinate to the High Court, and subject to legislation giving the guarantee of a fair trial, including the right to legal representation and the right to appeal to the High Court.

After independence in 1964, Prime Minister Hastings Banda, and Minister of Justice Orton Chirwa began to criticise such principles of English-based law as the presumption of innocence, the need to establish guilt beyond reasonable doubt and the requirement for corroborating evidence. In 1969, the acquittal of five defendants in the first Chilobwe murders trial caused outrage. Parliamentary reaction was hostile, and several speakers, including ministers, openly suggested that European judges and the European-style legal system had allowed clearly guilty defendants to escape punishment, although another individual was later found guilty of all the murders in a second trial. Aleke Banda, the Minister of Finance, particularly attacked the use of defence lawyers and the legal safeguards imposed by the English-law rules of evidence. Banda (who was President from 1966) suggested that the judge should resign and specifically linked traditional law to making punishment certain, claiming that lack of evidence was not proof of innocence.

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