Traditional Courts in Malawi
Encyclopedia
In Malawi
a system of Traditional Courts (also referred to as Local Courts) have been used for much of the twentieth century to prosecute crimes and mediate disputes. The current government of Malawi has proposed an expansion of this system. Although traditional courts have handled a variety of offences in the past, the proposed courts will handle only civil cases and some minor criminal acts.
made extensive use of courts, as part of his efforts to establish traditional systems in Malawi. The traditional courts eventually became the primary means of law enforcement in Malawi. In these courts, prosecutors had much greater power than in the parallel government judicial system.
Many critics have characterized the use of these courts as political persecution. Bakili Muluzi
abolished the use of traditional courts for criminal cases after taking power in 1994. The traditional courts continued to be used by the rural poor, however, but they were limited to mediating disputes.
crimes as well as crimes such as defamation. Some Malawian politicians and human rights activists have derided the bill, characterizing it as a plan for Kangaroo court
s that could be used for political repression. Ibrahim Matola
of the United Democratic Front
has argued that the courts will provide too much power to local chiefs and could devolve into a "draconian system". Opposition leader John Tembo
has condemned the plan as incompatible with a multi party democracy. The Malawi Congress Party
has also criticized the plan, claiming that it will unconstitutionally takes away power from the Judicial branch of government. The Solicitor General of Malawi, Anthony Kamanga, has disputed this claim, arguing that the Constitution of Malawi allows for the limited use of local courts. The Justice Minister of Malawi, George Chaponda
, has also defended the bill, citing the fact that serious crimes will not be handled by the local courts as proof that there is no danger of human rights abuses. Chaponda claims that the plans are popular with most Malawians, and that his critics are not “conversant with the historical development of this country.”
in the bill. Chaponda initially said that under the bill, it would be a minor crime to fart in public. After the idea received criticism he emphatically defended the measure, noting that a similar measure was in place during the colonial era and claiming that there is broad public support for the ban. Anthony Kamanga
later disputed Chaponda's assertion that the bill's reference to "fouling the air" refers to farting. Chaponda contradicted Kamanga and maintained that the bill does refer to farting, and argued that the ban was necessary due to a recent increase in public farting. He alleged that during the single party rule of Hastings Banda Malawians refrained from farting in public, but said that "Now because of multipartism or freedom, people would like to fart anywhere".
Chaponda later retracted his claims and endorsed Kamanga's position that the language does not refer to public farting.
Malawi
The Republic of Malawi is a landlocked country in southeast Africa that was formerly known as Nyasaland. It is bordered by Zambia to the northwest, Tanzania to the northeast, and Mozambique on the east, south and west. The country is separated from Tanzania and Mozambique by Lake Malawi. Its size...
a system of Traditional Courts (also referred to as Local Courts) have been used for much of the twentieth century to prosecute crimes and mediate disputes. The current government of Malawi has proposed an expansion of this system. Although traditional courts have handled a variety of offences in the past, the proposed courts will handle only civil cases and some minor criminal acts.
History
The traditional court system in Malawi existed in precolonial times and remained in use during British rule of Malawi. In 1969 the government of Malawi provided the traditional court system with criminal jurisdiction by the Local Courts Act. This act was prompted by widespread public criticism of the judicial system after government prosecutors failed to secure a conviction in a high profile murder case. Hastings BandaHastings Banda
Hastings Kamuzu Banda was the leader of Malawi and its predecessor state, Nyasaland, from 1961 to 1994. After receiving much of his education overseas, Banda returned to his home country to speak against colonialism and advocate for independence...
made extensive use of courts, as part of his efforts to establish traditional systems in Malawi. The traditional courts eventually became the primary means of law enforcement in Malawi. In these courts, prosecutors had much greater power than in the parallel government judicial system.
Many critics have characterized the use of these courts as political persecution. Bakili Muluzi
Bakili Muluzi
Elson Bakili Muluzi is a Malawian politician. He was the President of Malawi from 1994 to 2004 and was Chairman of the United Democratic Front until 2009.-Presidency:...
abolished the use of traditional courts for criminal cases after taking power in 1994. The traditional courts continued to be used by the rural poor, however, but they were limited to mediating disputes.
2011 Local courts bill
In 2007 the government of Malawi established a commission to review the possibility of extending the authority of traditional courts. After the completion of the review, the government proposed a bill that would provide the courts with the ability to prosecute some criminal cases. The 2011 Local Courts bill proposes that local courts should primarily handle nuisanceNuisance
Nuisance is a common law tort. It means that which causes offence, annoyance, trouble or injury. A nuisance can be either public or private. A public nuisance was defined by English scholar Sir J. F...
crimes as well as crimes such as defamation. Some Malawian politicians and human rights activists have derided the bill, characterizing it as a plan for Kangaroo court
Kangaroo court
A kangaroo court is "a mock court in which the principles of law and justice are disregarded or perverted".The outcome of a trial by kangaroo court is essentially determined in advance, usually for the purpose of ensuring conviction, either by going through the motions of manipulated procedure or...
s that could be used for political repression. Ibrahim Matola
Ibrahim Matola
Ibrahim Matola is a liberal politician from Malawi. Matola currently serves as the leader of the opposition United Democratic Front in the National Assembly of Malawi.-National assembly:...
of the United Democratic Front
United Democratic Front
*United Democratic Front *United Democratic Front *United Democratic Front , a political party in Malawi, which won the 2005 general election.*United Democratic Front *United Democratic Front...
has argued that the courts will provide too much power to local chiefs and could devolve into a "draconian system". Opposition leader John Tembo
John Tembo
John Zenus Ungapake Tembo is a Malawian politician and the President of the Malawi Congress Party , the strongest opposition party in Malawi. Tembo comes from the Dedza District in central Malawi, and he is a teacher by profession...
has condemned the plan as incompatible with a multi party democracy. The Malawi Congress Party
Malawi Congress Party
The Malawi Congress Party is a political party in Malawi.It was the successor to the Nyasaland African Congress , which was banned in 1959.The MCP was founded by Hastings Banda and other NAC leaders in 1960....
has also criticized the plan, claiming that it will unconstitutionally takes away power from the Judicial branch of government. The Solicitor General of Malawi, Anthony Kamanga, has disputed this claim, arguing that the Constitution of Malawi allows for the limited use of local courts. The Justice Minister of Malawi, George Chaponda
George Chaponda
Dr. George T. Chaponda born , is a Malawian diplomat and politician. He is currently the Minister for Justice and Constitutional Affairs....
, has also defended the bill, citing the fact that serious crimes will not be handled by the local courts as proof that there is no danger of human rights abuses. Chaponda claims that the plans are popular with most Malawians, and that his critics are not “conversant with the historical development of this country.”
Farting ban controversy
The Local Courts bill gained significant media attention in Malawi and in international media due to the perceived inclusion of a ban on public farting2011 Malawian Air Fouling Legislation
The 2011 Malawian Air Fouling Legislation is a section of the Local Courts bill submitted to the parliament of Malawi in February 2011 that bans fouling the air. When the Minister of Justice claimed that the bill made farting in public illegal, the story made headlines around the world...
in the bill. Chaponda initially said that under the bill, it would be a minor crime to fart in public. After the idea received criticism he emphatically defended the measure, noting that a similar measure was in place during the colonial era and claiming that there is broad public support for the ban. Anthony Kamanga
Anthony Kamanga
Anthony D. Kamanga is a lawyer who has held various senior official positions in Malawi, and as of 2011 was the Solicitor General.-Career:Mamanga earned an LLB in Malawi in 1978, an LLM in Toronto, Canada in 1982 and a Diploma in Legal Drafting in Ottawa, Canada in 1993.He was appointed Senior...
later disputed Chaponda's assertion that the bill's reference to "fouling the air" refers to farting. Chaponda contradicted Kamanga and maintained that the bill does refer to farting, and argued that the ban was necessary due to a recent increase in public farting. He alleged that during the single party rule of Hastings Banda Malawians refrained from farting in public, but said that "Now because of multipartism or freedom, people would like to fart anywhere".
Chaponda later retracted his claims and endorsed Kamanga's position that the language does not refer to public farting.