In pre-colonial times, customary African law comprised a flexible set of rules on conduct and social obligations which was accepted by the community.
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.
[2] 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.
Indirect rule was instituted in 1933; the chiefs and their councils became Native Authorities with limited judicial powers, usually restricted to civil cases under customary law and little money to enforce them.
[7] It was argued by Martin Chanock that, as a reaction to the rapid social and economic changes that took place in the late pre-colonial and early colonial periods, older men in many African communities sought to impose their authoritarian and restrictive interpretation of customary law, which they used to control younger men and particularly women.
By 1969, Aleke Banda, the Minister of Finance, openly attacked the use of defence lawyers and the safeguards or restrictions imposed by the English-law Rules of evidence.
Dr Banda specifically linked traditional law to punishment, and claimed that lack of evidence was not proof of innocence.
This legislation provided guarantees of a fair trial, including the possibility of legal representation and the right to appeal to the High Court.
Traditional courts only apply those such sections of the penal code that the Minister of Justice directed and had their own rules of procedure.
They were not bound by the same rules of evidence as the High Court, but applied the customary law of their area, supplemented by ministerial directions.
Defendants had no right to call witnesses; this was at the discretion of the judges (an in the case of the Chirwas, it was refused), and they are not given a summary of the charges against them before the trial, so cannot prepare a defence.
Chairmen and assessors, who were supposed to be individuals who commanded respect and with a considerable knowledge of the customary law of the area served by the court, were appointed by the Minister of Justice, Banda, and could be dismissed by him.
Perhaps the most flagrant misuse of the Traditional Court system occurred in the trial in 1976 of Albert Muwalo (also known as Albert Muwalo Nqumayo), Secretary General of the Malawi Congress Party and Focus Gwede, Head of the Police Special Branch, on a charge of attempting to assassinate President Banda.
However, the Traditional Court admitted as evidence three anonymous and unsubstantiated letters that denounced the men, on the basis, “…there is no smoke without fire” and recordings of two telephone conversations about the guns, which did not discuss any plans to use them.
At the end of their appeal in 1983, the minority of the appellate judges, those that had legal training, questioned the guilty verdict, but were overruled by the majority composed of traditional chiefs.
On appeal to the National Traditional Court of Appeal, the refusal of the lower court to allow defence witnesses, its admission of the unsigned statement and its acceptance of a police officer as an expert witness were all criticised, and minority of the judges did not accept that creating unpublished handwritten documents amounted to treason.
the majority however regarded the documents, which they treated as genuine, as evidence of an intention to overthrow the state by force, which they equated to treason.
[22][23] In 2007 the government of Malawi established a commission to review the possibility of re-introducing formal local traditional courts.
Some Malawian politicians and human rights activists have derided the bill, characterizing it as a plan for Kangaroo courts that could be used for political repression.
[24] 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".
[24] The Malawi Congress Party has also criticized the plan, claiming that it will unconstitutionally takes away power from the Judicial branch of government.
[1] 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.
However, although the current Malawian government recognises the need to provide the rural poor in particular with an accessible system of justice, it lacks the funds to implement the proposed reform.