Traditional Courts in Malawi

In Malawi a system of Traditional Courts (also known as Native Courts or Local Courts under colonial legislation) has been used for much of the twentieth century to mediate civil disputes and to prosecute crimes, although for much of the colonial period, their criminal jurisdiction was limited. From 1970, Regional Traditional Courts were created and given jurisdiction over virtually all criminal trials involving Africans of Malawian descent, and any appeals were directed to a National Traditional Court of Appeal rather than the Malawi High Court and from there to the Supreme Court of Appeal, as had been the case with the Local Courts before 1970.

The Traditional Courts were supposed to operate in accordance with African law and custom, although they applied an authoritarian, restrictive and punitive version of customary law, in line with the views of Hastings Banda, the first President of Malawi. During the 1970s and 1980s, these courts gained a reputation for being used to prosecute Banda's political opponents and being corrupt. After the restoration of multi-party politics, the operation of the Regional Traditional Courts and the National Traditional Court of Appeal was suspended in 1993.

Many of the former lower-level Traditional Courts became magistrates' courts, able to apply customary law, but subject to appeal to the High Court. The Malawi Constitution of 1994 recognised customary law as an integral part of the legal system and provided for Traditional Courts with limited jurisdiction over civil and minor criminal cases, but no legislation to set up such courts was introduced until 2011. In February 2011, the Malawi Parliament approved legislation re-introducing local traditional courts handling most civil cases and some minor criminal cases, as a means of making justice more accessible to rural Malawians. This legislation had not been put into effect because of financial constraints as of May 2017.

In pre-colonial times, customary African law comprised a flexible set of rules on conduct and social obligations which was accepted by the community. Customary African law has been typified by as more concerned with the resolution of disputes than the punishment of crimes. Many systems of customary African law have little recognition of crimes, in the sense of a specific offence committed against, and prosecuted by, a society as opposed to torts or civil wrongs to be pursued by the individual affected as a plaintiff. Some offences, for example patricide, incest or witchcraft were, however, so serious as to be regarded as crimes against the community involving the death of those guilty. Although it has sometimes been claimed that, because of its flexibility and basis in custom, it was not really law, experts in African legal systems such as Eugene Cotran have demonstrated it was. Cotran also showed that, despite some informality, assemblies of people meeting to administer customary law are clearly courts. However, in the colonial period, English law and legal procedures were introduced and given priority over customary Law, which tended to be labelled “native law”, “local law” or “traditional law”. Europeans also sought to codify these laws, which as a result, became increasingly rigid.

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