To what extent do the poor have access to justice in Malawi? How can access to justice be improved in this context? This report, commissioned by the UK Department for International Development, analyses these questions with specific focus on the lower levels of the justice system – the subordinate and the traditional courts. It suggests policy alternatives to better link formal and informal justice systems and recommends new approaches to improve overall accessibility.
In 1994-1995 reforms were introduced in Malawi’s justice sector, but these had an overall negative impact on access to justice. The reforms attempted to centralise and consolidate the structures and processes of justice by abolishing the regional and national traditional courts. Lower level courts that should arguably have been integrated into the judiciary were dissolved and the rural poor were almost entirely excluded from accessing formal justice mechanisms. In their place, Subordinate Courts (SC) were established, but with little success. Lack of adequate resources, limited capacity and a shortage of skills have severely hampered the effectiveness of the state justice system.
As a consequence, customary village forums, lead by traditional chiefs, are now widely perceived as the only way of resolving disputes. This customary justice system (not related to the traditional courts) is providing access to justice outside the formal legal framework with some degree of success. The system is run by over 20,000 village leaders/ chiefs who operate in almost every village across Malawi. In contrast, there are barely 217 state courts in the country.
The customary system does make up for the shortcomings of the Subordinate Courts (SC) but both justice mechanisms face significant challenges in their own right. Key points about these two institutions are:
- SCs are not available in rural areas and therefore the rural poor are forced to walk on average 6 to 8 hours to access the nearest court.
- SCs are run by poorly qualified Magistrates (many admitting to not once having read the Constitution). They lack support services, work unsupervised and, in rural areas, are rarely available to hear cases.
- Barriers to access include: SCs carry hearings in English instead of local languages, procedures are complicated and incur high litigation costs. Additionally, compensation tends to be poorly enforced.
- Customary law is based on restorative justice, concerned with social harmony. In this system, Justice is a negotiated process of agreement between the parties, aided by social pressure from the local community.
- Customary forums are more accessible in terms of distance, cost, language, values and outcomes. But there are serious human rights violations, especially in cases involving women and children.
- Chiefs and traditional leaders were stripped of their formal adjudicative powers in 1995 and therefore find their decisions regarding cases sometimes ignored.
Clearly there is a need to work to improve both justice Mechanisms in Malawi. In this context donors should support efforts to:
- Strengthen the link between the formal and informal systems. The latter should not be swallowed up by the formal system and should not place a further financial burden on the state.
- Establish adequate supervision mechanisms, both for the SCs and for the customary system. Appeal courts should be reinstated.
- Enhance the legal capacity and knowledge of magistrates and supporting staff to ensure that procedures are adequately recorded and resolved. Chronic under-funding should be addressed.
- Ensure that vulnerable groups, especially women and children, receive fair treatment by both state and customary courts. Special provisions should be in place to protect victims who are afraid to bring cases to court.
- Eliminate retrograde features of the customary system, such as gender prejudice, without disrupting the social fabric of society.
