CUSTOMARY LAW AID ADMINISTRATION OR JUSTICE IN MALAWI l&HO - /? 3 ^ BY Emily Nyamazao MA1IWA Thesis submitted for the Degree of M. PHIL* LOEDOh UNIVERSITY, 1965. ProQuest Number: 10731241 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a com plete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest ProQuest 10731241 Published by ProQuest LLC(2017). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States C ode Microform Edition © ProQuest LLC. ProQuest LLC. 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106- 1346 CONTENTS Customary law and the Administration of Justice in Malawi 1890 - 1933. Page Abstract 1 Preface 4 PART I Chapter One haw of Persons 13 Male Adult 13 Women 17 In fan ts 25 A lien s 32 Slaves - 34 Lunatics 45 Chapter Two The Law and C la s s ific a tio n of Wrongs 47 Crimes 54 Burglary 61 Drunkenness 63 Cases relating to women 64 Adultery 64 Other Crimes 69 Property law 71 Chapter Three i ■■'ii i r 11 ii ii ------------- Pamily haw Marriage, Divorce and Inheritance 78 Other Porms of Marriage 82 Bride p rice 91 Polygamy 92 Widowhood 98 Position of wives 101 Marriage with sla v es 102 Divorce 103 Adultery 104 Property after divorce 105 The position of children after divorce 106 PAGE Inheritance and Succession 108 Ohapter Pour Courts VIS 112 Composition of Courts 116 The Chief 120 The V illa g e Headman 128 Procedure 132 Mwavi T rial 134 Diviner 137 Witchcraft 139 Criminal cases 141 Appeals 147 Sanctions . 149 PART II Chapter Pive Establishment of Courts of Justice in Malawi 151 District (Native) Administration0rdinance,1912 181 The District (Native) Administration Ordinance, 1924 190 The duties of Principal Headman 193 (a) The Native Authority Ordinance, 1933 201 (b) The Native Courts Ordinance, 1933 215 The Position of Hereditaiy Chief under Various Ordinances 228 Chapter Six The Law of Persons 251 The Role of Male Adult 251 Women 273 Infants 278 A lien s 282 Lunat ic s 284 Property of the lunatics 292 Chapter Seven Courts o f Appeal 293 District Native Court of Appeal 298 District Court of Appeal 299 The High Court of Nyasaland 308 gage The Supreme Court o f Appeal for Hyasaland at Gape Colony 303 The East African Gourt of Appeal 306 Powers of Courts of Appeal to call Assessors. 309 The High Court Practice and Procedure Ordinance, 1906 312 Other Courts of Appeal 314 Chapter Eight i Hew O ffences 315 T rial by Mwavi 315 Ordinances to regulate the Intoxicating Liquor. 323 Rules regarding hunting 326 Seditious publications 328 % Epilogue 333 Abbreviations 346 Sources 347 Interview s 355 ABSTRACT The question of administration of justice was one of the problems facing the British Administration in Malawi during i t s early days, the reasons being th at there were many social groups in the country each having its own different code of law. To bring these various social groups under one administration, and to have their laws administered by British officers as the only machinery of justice, it was necessary to establish one comprehensive system of law. It is to be expected that with the advent of a new and alien administration, a conflict of laws between those brought in by the new administration and those that were indigenous should occur. This study seeks to examine these conflictso Part I of th is work trie s to examine the numerous -codes of law practised by various so cial groups of Malawi at the time of the establishment of British rule. Part II will attempt to examine why and how some of these existing laws were abolished or modified by the ordinances passed by the British administration. The fact that certain customary laws were abolished or modified led to the creation of new offences such as the laws regarding hunting, which, before the British came, was a source of pleasure as well as sustenance for the people, but which now, under the new rule, was made illegal. Section 20 of the British Central Africa Order in Council 1902 laid down th at native law and custom were to be ad­ hered to, if and when required, unless repugnant to justice and morality. The standards of justice and morality, however, in these cases, were not those of the people of Malawi, but those of the English. An apparent conflict arising from the application of such standards of justice and morality was seen in the cases of adultery, mwavi trials and marriages, as understood by the African people. I 1 1 order to effect modifications in the practice of customary law, the British administration required an authority from Her Majesty’s Government. The authority to introduce such a system was contained In the Africa Order in Council of 1889, which authorised that the Common Law, Statutes and rules of equity enforced in England were to be applied in the administration of British and British protected subjects. The 1893 Africa Order in Council author ised the adm inistration of Malawi by B ritish o ffic e rs. The machinery to put into effect such a system was gradually developed. First were the Consular and Col­ lector’s Courts 'which were established in many districts of the protectorate. They were to preside over cases where Europeans and Asians only were p arties or where a European and an African were involved in any dispute. Powers of 3* Consularsand Collectors as judicial officers were extended to deal with cases where Africans only were parties. During this period, that is, 1$90~1902, when Collectors and Consular Courts were abolished, hereditary chiefs were encouraged to try minor cases,, A further attempt to systematize the administra­ tion of justice and that of local government was brought about in 1912, when Governor William Manning, the Governor of Nyasaland, proposed to the Colonial Office to put into effect a system of Principal Headmanship, thereby indirectly resulting in the replacement of hereditary chiefs, as the Governor had power to appoint any person or chief to act as the Principal Headman. This is dealt with in Part II. 4 1 ® PREFACE As the main object of this work is to deal with two systems of laws, it has, for the sake of convenience, been divided into two parts; Part I deals with Malawi*s customary law and Part II deals with the effect of English law on the former* Ordinances were passed to abolish or modify the customary laws* Hence, Part I deals e n tire ly with the customary laws as they were before the establish™ ment of British Rule in Malawi„ Due to lack of written evidence by African people on the nature of their laws and customs, it has been found necessary to supplement this deficiency with interview s with elderly Malawi people who have visited England since this work was started, especi­ a lly a fte r Independence of Malawi in 1964 when more Africans have been to London on official visits0 Among these people were the chiefs whose opinions and knowledge have been put to constructive use. I have been careful in my interviews to select people who were in Malawi during at least the latter part of the period of this work, that is during the 1920*3 and 1930*s. This selection was made bearing in mind that they were in close contact with those who were directly connected with the chiefs who dealt with the early British administra­ tion* On th is ground i t w ill be noted throughout th is work th at the present chiefs in Malawi have been quoted whenever 5. their information in my int erviews with them has been appropriate , No intervieitf has been made with anyone who may not have had knowledge of the affairs during the period of my work. I have made use of many anthropological works which constitute some of the written evidence I have de­ pended on in dealing with customary laws of Malawi, It will be noted also that although this work is mainly his­ torical it has been necessary to make constant use of anthropological works due to their substantial contribution to the study of Malawi so c ie tie s, I have, however, used these anthropological works with care; it has been necessary to corroborate such works with historical evidence as well as the evidence of the pioneering missionaries who directly d ealt with African people with whom they worked „ Thus i t can be noted that pioneers such as David Livingstone, RoweleV, Duff Macdonald, W.A, Elmslie and many other mis­ sionaries have been constantly quoted throughout this work. Other works which have also been used extensively are the following: Gamitto’s King Kazembe, Werner’s Natives of British Central Africa, Sir Harry Johnston’s works, and particularly his British Central Africa; in addi­ tion Coupland’s Kirk on the Zambezi, Mitchell’s study of rt the Yao, Steppers on and Price’s Independent Africa!, RD 6 „ Oliver1 s Sir Harry Johnson and the Scramble for Africa., Harm a* s Beginnings of Nyasaland and North Eastern Rhodesia * These and many others have all provided me with interesting material for my work. As can he seen from the nature of the work in Part IIs it will be appropriate to state that the bulk of its sources has come from the following: i) Ordinances passed by the then Nyasaland Legislative Council, including some of the minutes of the Legislative Council; ii) Certain U.K.