Megan Crouch, University of Pittsburgh School of Law Class of 2013, spent the summer working at the Malawi Human Rights Resource Centre. She writes on the ability of rural villagers to access the justice system in Malawi and argues that new legislation to address this issue might improve the situation, if implemented properly...
The number of people in Malawi that have access to the legal system is few and far between. This is not new to Malawians; the government has strived to remedy this problem since changing to a multiparty democracy in 1994. While in the past the government has been unable to find a solution, it recently passed the Local Courts Bill, which may have an effect on how the justice system is accessed.
In 1964, Malawi gained independence from the UK and two years later it became a one-party state. The legal system at the time consisted of both a conventional court system and a traditional court system, running parallel to one another. In 1969, the traditional courts were given jurisdiction over criminal cases. Soon after, these courts developed into the primary means of law enforcement. Hastings Banda, the "President for Life," used these traditional courts to prosecute political opponents and accordingly they became exceedingly corrupted.
When the government became a multiparty democracy in 1994, Banda's successor abolished the traditional courts. Only the conventional legal system remained, and to this day it is still the only court system used in Malawi. The Malawian legal system has three different levels of courts: magistrate courts, high courts, and the Supreme Court of Appeal. The magistrate courts are the lowest level of courts and handle both civil and criminal matters within their jurisdiction. They are located at the district and city level, with about one court in each of the nation's twenty-seven districts and one to two in its four cities. The High Courts of Malawi preside over the magistrate courts. These courts have unlimited jurisdiction over criminal and civil matters and also hear appeals from the magistrate courts. They are situated in the four cities of Malawi. The Supreme Court of Appeal is the highest appellate court, and it hears appeals from the high courts and other tribunals.
Despite the variety, none of these courts function at the village level. Even with the magistrate courts situated at the district level, many people still do not have access to the justice system. The lack of any legal structure in the rural areas of Malawi is one of the main reasons why people are not able to access the justice system. For those who live in a village, the closest magistrate court might be 25 to 30 miles away. Most villagers cannot afford a personal vehicle, and public transportation in rural areas is non-existent. The only options available to villagers are walking, biking or hitchhiking to a court. Furthermore, it is necessary to arrive at the courthouse a couple days in advance of the trial starting. This requires one to raise money for food, accommodation and anything else one might need while travelling away from their home. In the event the magistrate court does not have jurisdiction to hear the case, the only other option is to bring the case before the High Court in the closest city, which can be over 200 miles away. All of this puts a huge burden on villagers and makes it nearly impossible for them to access the justice system.
February 2011 brought a potential change to those living in the rural outskirts of Malawi. Parliament passed the local courts legislation in an attempt to address this problem. According to the bill's memorandum, the act "seeks to introduce a new genre of courts ... with the primary function of dispensing familiar and affordable justice for the ordinary Malawian in line with the spirit of the Constitution which aims at enhancing the right of access to justice by all citizens." In 2009, the Special Law Commission was appointed to review the old Traditional Courts Act in light of the current Malawi legal system. The commission concluded that local courts could benefit society by providing a point from which to access justice in rural areas. As a result of this report, a proposal was created for a bill that would reintroduce these courts.
The Local Courts will be subordinate to the High Courts. This is different from how the traditional courts previously functioned. In the past, the traditional courts had no interaction with the High Courts or the Supreme Court of Appeal. According to the new act, two levels of courts will be constructed. At the lower level, there will be the multiple local courts established in each of Malawi's 27 districts. These will be located near, if not in, villages, making it easier for people living in rural areas to access them. Appellate courts, called the District Appeals Local Courts, will be created in each district to hear appeals from the Local Courts.
A chairperson will head both the Local Courts and the District Appeals Local Courts. The chairperson must be at least 35 years old, in possession of a Malawi School Certificate of Education and have adequate knowledge of the customary law of the area in which the court presides over. It is not necessary for the chairperson to hold a degree in law. The chairperson must also have adequate command of the language of the court but also be proficient in English. Furthermore, the Local Courts will have a panel of assessors that will advise the court in civil matters concerning customary law; however the advice will not be binding. The requirements for the assessors are similar to those of the chairperson, but the assessor must be at least 50 years old and does not need to hold a Malawi School Certificate of Education.
The Local Courts will have jurisdiction over criminal matters, in accordance with Malawi Criminal Procedure and Evidence Code, and over most civil matters. Given the history of Malawi, the creators of this bill have been conscious of the past and have specified certain civil matters the courts will not have the authority to hear. The Local Courts will not have jurisdiction over any civil case at customary law: when the title or ownership of customary land is in question, if the case relates to inheritance of deceased property, wherein the guardianship or custody of infants is in question, if the case relates to issues of witchcraft under the Witchcraft Act, or if the case relates to chieftaincy. This is to help limit corruption of the courts.
While the bill has been created to benefit Malawians, many have concerns with the new legal regime. The largest concern is fear that the courts will still be used for political ends and oppression. Looking at the current government, Malawians are not mistaken for fearing the misuse of the local courts. Recently, President Bingu wa Mutharika shut down the main college campus within a moment's notice and kept it closed for 107 days because a teacher was explaining the government's role in Malawi's current economic crisis. Bingu and his party also passed a bill that gives him control over what is published in the newspaper, limiting the freedom of the press despite its guarantee in the Malawi Constitution. Many Malawians fear the courts will once again be used for persecution of dissenting views.
Nonetheless, if the courts are used to further justice, the new act could be a step closer to providing all Malawians access to the legal system. Desmond Kaunda, a Commissioner for the Malawi Human Rights Commission and Director of the Malawi Human Rights Resource Centre, will spend six months researching whether the local courts will help increase access to justice and benefit society. He has his own concerns, but Kaunda believes the best thing Malawians can do to improve their access to justice is support the bill and make sure the traditional authorities presiding over the courts are held accountable.
A major benefit provided by these local courts is their accessibility to the rural population. They can help increase villagers' access to justice, not only through their proximity, but also through the fact that the proceedings will be carried out in the local language of the village. Simple proceedings may not even require the services of a lawyer, and many of the typical delays associated with the formal justice system will likely not be encountered. Hearings should run more smoothly and quickly, allowing more cases to be heard.
Even with all the potential benefits that could result from the new local courts, many Malawians hope the bill will not take effect. It has only been 17 years since the change from an authoritarian regime to a multiparty system. People have not forgotten what they suffered during Banda's presidency and the ends for which the traditional courts were used. The outcome of this new bill is yet to be determined, as it is yet to take effect and the new courts still have not been established. Only time will tell whether it is a benefit or a detriment to society.
In the end, what is important is the fact that the government is attempting to address Malawi's access to justice problem. The Constitution of Malawi guarantees that every person shall have access to justice and have the right to bring their issues before a court. While it is true that many women and men in Malawi are still provided with that constitutional right, there may be hope for the future with the new Local Courts Act.
Megan Crouch recently graduated from Arizona State University with a bachelor's degree in geography with a minor in history. She participated in the Human Rights and Peace Studies Summer Intensive in Cape Town, South Africa, and work as a HEAL International Volunteer in Arusha, Tanzania.
Suggested citation: Megan Crouch, Improving Legal Access for Rural Malawi Villagers, JURIST - Dateline, August 18, 2011, http://jurist.org/dateline/2011/08/megan-crouch-local-courts-malawi.php.
This article was prepared for publication by Megan McKee, the head of JURIST's student commentary service. Please direct any questions or comments to her at firstname.lastname@example.org