Expanding Access to Justice for the Poor Malawi's

EXPANDING ACCESS TO TO ACCESS EXPANDING FOR THE POOR JUSTICE FOR MALAWI’S SEARCH SOLUTIONS ANALYSIS A COMPARATIVE SELECT INFORMAL WITH OTHER SYSTEMS JUSTICE DESMOND MUDALA KAUNDA PARTNERSHIP RESEARCH PROGRAMME INSTITUTE FOR HUMAN DANISH RIGHTS (DIHR)

EXPANDING ACCESS TO JUSTICE FOR THE POOR MALAWI’S SEARCH FOR SOLUTIONS EXPANDING ACCESS TO JUSTICE FOR THE POOR MALAWI’S SEARCH FOR SOLUTIONS

A COMPARATIVE ANALYSIS WITH OTHER SELECT INFORMAL JUSTICE SYSTEMS WORKING PAPER BY DESMOND MUDALA KAUNDA RESEARCH PARTNERSHIP PROGRAMME DANISH INSTITUTE FOR HUMAN RIGHTS (DIHR) DECEMBER 2011

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The Research Partnership Programme of compliance with human rights standards (RPP), funded by the Danish International concerning participation and accountability, Development Assistance (Danida) and fairness of procedures (including the protection organised by The Danish Institute for Human of the vulnerable) and substantive outcomes. Rights (DIHR) offers a small number of researchers from developing and transitional During his stay at DIHR, Desmond Mudala countries the unique opportunity of becoming Kaunda’s research work was supervised by a guest researcher at the DIHR for a period of Senior Legal Adviser Lone Lindholt. five months. The RPP is one component of the DIHR strategy to upgrade and expand the resource bases in developing and transitional countries within the field of human rights. The aim of the programme is to build human rights research capacity in these countries, and in general to contribute to stronger academic environments and increased exchange between institutions in the human rights field internationally.

For 2011-2013 the programme operates under the thematic focus of “Informal Justice Systems” (IJS), including the opportunities for access to justice where state systems lack outreach and forums in which a diversity of cultures and values can be respected as well as challenges and weaknesses in respect

3 Author

DESMOND MUDALA KAUNDA

Desmond Mudala Kaunda is a holder of a by civil society organisations and development Master’s Degree in International Human agencies in designing development Rights Law obtained from the University of interventions in Malawi, including the UK DFID Essex (UK, 1996) and a LLB (Hons) Degree sponsored Malawi Safety, Security, and Access obtained from Chancellor College, University of to Justice (MaSSAJ) programme. Malawi in 1994. Having completed his practical attachment and internship programme at the Further, Mr. Kaunda has served in various London-based International Centre for the civil society and Government committees Legal Protection of Human Rights, Interights, and boards. He is a former Commissioner in 1996, he worked for a brief period in private of the Malawi Human Rights Commission legal practice as an Associate with Racane (MHRC), and currently a Hubert Humphrey Associates in Blantyre, Malawi, before joining Fellow undertaking his one-year professional the NGO sector in late 1997 as Legal Officer development program at the University of for the Malawi Human Rights Resource Minnesota Law School in the United States of Centre (MHRRC) - a well-respected local America until June 2013. During his fellowship organisational capacity building human rights year, he will be investigating the interaction NGO and key partner to the Danish Institute for of USA Tribal Courts with State and Federal Human Rights (DIHR). Courts. He has a keen interest in the issue of “expanding access to justice for the poor” Mr. Kaunda is a passionate human rights through use of informal justice systems. While advocate and social justice researcher. His his life goal is “bringing order to chaos”, his extensive social justice research, spanning a goal for the next five years is “bringing justice period of close to 15 years, has contributed to out of every situation of injustice”. academic discourse on human rights and social justice in Malawi and Africa in general. Some of his applied research studies have been used

4 ACKNOWLEDGEMENTS

Access to justice is a complex subject, let alone professional development moments I shall live the topic of Informal Justice Systems (IJS). to remember and benefit from. During such It is a field which has generated significant times, I witnessed Dr. Lindholt truly live her research and debate. Consequently, upon personal values in practice. commencing my research at the Danish Institute for Human Rights (DIHR), I was I also extend my thanks to Fergus Kerrigan, for confronted with a significant volume of his professional guidance and support on the literature which had been generated over the theme of access to justice- and informal justice years. It would therefore have been all too easy systems in particular. Sisse Straede Bang Olsen to be overwhelmed by the shear amount of and Sofie Gry Fridal Hansen also deserve literature available for desk study and review. mention for professionally and tirelessly As such, I do owe a great deal of gratitude to organising the many seminars, workshops, a large number of people at DIHR who made and other informal events which enriched our the whole Research Partnership Programme research studies and also helped us deal with (RPP) experience attainable and worthwhile. rare moments of home-sickness. Of utmost importance, I must thank Dr. Lone Lindholt who was not only my supervisor and Most importantly, DIHR’s entire Management sparring partner throughout the four months and Staff also deserve to be thanked, for research period, but also doubled as my granting me the opportunity to join and work mentor. Being an excellent judge of character, with them for a period of four months as a Dr. Lindholt was quick to notice that other Guest Researcher and for providing me access challenges in my life were threatening to derail to a comprehensive set of relevant literature for me from my important research course. Indeed, review. In the final analysis, I believe that I have the moments of open and frank discussions benefited from the 2011 RPP in more ways than which I had with Dr. Lindholt regarding my one: firstly, brushing shoulders with DIHR’s ”mid-life crisis” and “burn out” shall remain world-class researchers has shaped me into a

5 better researcher; secondly, the four months period gave me an opportunity to reflect on my life’s purpose - resulting in me formulating a faith-based Personal Strategic Plan which will guide my activities for the next five years or more; and thirdly, I go back to Malawi not only with a diverse network of professional contacts but also a comprehensive data bank of electronic literature and documentation on the theme of access to justice generally and informal justice in particular.

Last, but not least in importance, I thank the Almighty God for bringing DIHR into my professional development path and for granting me the good health and intelligence necessary to successfully complete the 2011 DIHR RPP.

6 Content

1 INTRODUCTION 9 1.1 General Introduction 9 1.2 The Perceived Problem 10 1.3 Research Objectives 14 1.3.1 Research Goal 14 1.3.2 Research Outcomes 14 1.3.3 Research Outputs 14 1.3.4 Central Research Questions 14 1.4 Methodology 15 2 THE ‘ACCESS TO JUSTICE’ CONCEPT AT THE INTERNATIONAL LEVEL 16 3 THE MALAWI PRE-2011 ACCESS TO JUSTICE LEGAL FRAMEWORK 25 3.1 The Pre-Colonial Period 25 3.2 British Colonial Period 25 3.3 Post-Colonial Period under Dr. Kamuzu Banda 26 4 THE MALAWI POSt-2011 ACCESS TO JUSTICE LEGAL FRAMEWORK 30 4.1 The Malawi Political and Legal Context 30 4.2 The Need for Legal Reform 31 4.3 Linkages between Formal and Informal Judicial Systems 31 4.4 State Interventions Introducing Reforms Expanding Access to Justice for the Poor 32 4.5 The Legal Aid Act 32 4.6 Analysis of Potential Link between Legal Aid and Local Courts 39 4.7 The Local Courts Act 39 4.8 Analysis of the Local Court Bill 43 5 THE SHIFT TOWARDS ENGAGEMENT WITH INFORMAL JUSTICE SYSTEMS – STAKEHOLDER PERSPECTIVES 52

7 5.1 The United Nations Development Programme (UNDP) 54 5.2 Danida 56 5.3 UK’s Department for International Development (DFID) 57 5.4 The World Bank 58 5.5 Malawian Authorities and Stakeholders 58 5.6 Summing Up 59 6 THE CURRENT MALAWI STATE OF ACCESS TO JUSTICE BY THE POOR AND PROSPECTS FOR IMPLEMENTATION OF THE NEW LEGAL AID AND THE LOCAL COURTS ACTS 61 6.1 Concerns on Lack of Adherence to Human Rights Norms 62 6.2 Inadequate Capacities and Institutional Barriers 62 6.3 Lack of Will and Discipline for Practical Implementation 63 6.4 Negative Attitudes Among the Legal Profession and Justice Stakeholders 65 6.5 Inadequate Budgetary Provisions 67 6.6 Limited Choices Available for the Poor 68 6.7 Differences in Concepts, Processes and Procedures 69 6.8 Challenges in Reforming Plural Legal Systems 69 6.9 Opportunities for Further Interventions 71 6.10 Summing Up 72 7 COMPARATIVE CASE STUDIES: LESSONS TO BE LEARNED FROM OTHER SELECT INFORMAL JUSTICE SYSTEMS 73 7.1 General Lessons 74 7.2 Other African Jurisdictions- Zambia, Republic of South Africa, Uganda 75 7.2.1 Zambia 75 7.2.2 South Africa 76 7.2.3 Uganda 78 7.3 Summing Up 80 8 GENERAL CONCLUSIONS AND RECOMMENDATIONS 81 8.1 General Conclusions 81 8.2 General Recommendations 84 9 LITERATURE 87 NOTES 92

8 Chapter 1

Introduction

1.1 General Introduction Having been modelled on the key international human rights instruments, Malawi’s democratic Constitution of 1994 was poised to be a transformative Constitution with the potential for protecting and promoting rights of the poor, vulnerable, and marginalised Malawians if implemented in practice. While the judiciary has, over the years, generally emerged as a surprisingly strong institution in an otherwise weak political system, a body of pro-poor jurisprudence has failed to develop correspondingly, despite the transformative nature of the Constitution.1 Indeed, there seems to be no disagreement among politicians, the judiciary, the human rights, and legal community as well as donors in Malawi, that the legal needs of the poor are not being met. This is largely due to the lack of operation of local courts, on the one hand, and the ineffective functioning of magistrate courts, on the other hand.2 This research examines the efforts of the Malawi Law Commission, the Parliament, and the Judiciary to promote and enhance access to justice for the poor.3 The research investigates three main contentions; firstly, that

9 Introduction

the Malawi Law Commission’s law reform and empowerment, and enhancement of access to Parliament’s legislative efforts at promoting justice for the poor. and enhancing access to justice for the poor have been fairly comprehensive, progressive 1.2 The Perceived Problem and pro-active: in this regard, the simultaneous passing of the new Legal Aid and Local Courts The lesson is clear. When democratic Acts in February, 2011 will be our primary point rules are ignored and there is no law of examination. Secondly, that despite positive capable of providing shelter, the people law reform and legislative efforts, constitutional who suffer most are those who can least discourse on the right of access to justice for afford to lose. Creating an infrastructure the poor and the associated rights of legal of laws, rights, enforcement, and representation and legal aid are virtually adjudication is not an academic project absent in practice in Malawi.4 Thus, the judicial of interest to political scientists and practice of promoting and enhancing access to social engineers. The establishment justice for the poor has, to a large extent, not of such institutions can spell the matched Malawi’s constitutional, law reform, difference between vulnerability and and legislative rhetoric. Thirdly, the paper security, desperation and dignity for advances the argument that local courts have hundreds of millions of our fellow the potential not only to provide solutions to human beings.”7 both the under-representation of poor people in Malawi’s formal justice system5 and lack of (Co-Chairs of the Commission on Legal respect for human rights and the Rule of Law Empowerment for the Poor) under the informal justice system, but also to contribute to reforming the conventional The above quotation resonates well with justice system.6 The paper advocates for a the situation regarding access to justice for reconciliation of informal and formal justice the poor across the globe generally and in systems not just on paper but in practice. Malawi in particular. This includes those living Examination of practicalities of moving in the in absolute poverty (i.e. living on less than direction proposed by the two new pieces of a dollar a day), as well as other vulnerable legislation is the basis of this research. Our and marginalised groups such as women and analysis illustrates the limits in institutional and children. It is said that over four billion people social-legal reforms of the nature proposed live outside the Rule of Law around the world.8 by the Malawi Parliament. In the final analysis, A majority of poor people have little or no specific recommendations are made with a contact with the formal legal system and are view to advocating for the practical promotion, not likely to increase their contact with the

10 Introduction

system, even if all aspects of the access to violations and maladministration respectively. justice and legal empowerment agenda are The inaccessibility and lack of functioning and implemented. In lieu of access to the formal effective legal structures in the rural areas system, they seek justice from customary law of Malawi continues to be one of the main and from informal systems. For example, in reasons why poor people are not receiving sub-Saharan Africa, customary land tenure effective access to justice.14 For those who law covers roughly 75 percent of land and in live in villages, the closest Magistrate Court some countries, such as Mozambique and might be 25 to 40 kilometres away15. Most Ghana, over 90 percent of land transactions villagers cannot afford a personal vehicle, are governed by customary law.9 In the case and public transportation in rural areas is of Malawi, most Malawians cannot access the non-existent. The only options available for formal state mechanisms for resolving civil villagers are walking, biking, or hitch-hiking to disputes. Consequently, they use non-state the court. Furthermore, it is necessary to get institutions and draw on the processes available to the courthouse a couple of days prior to the in the ‘informal’ or ‘primary’ justice sector. A trial’s beginning. This requires Malawians to ‘rapid assessment’ by the British Department raise money for food, accommodation, and for International Development (DFID) MaSSAJ anything else they might need while traveling Primary Justice Pilot Project10 confirmed that away from their homes. If the Magistrate Court most people in Malawi depend on non-state does not have the jurisdiction to hear the case, institutions, of which the most frequently used the only other option is to take it to the High were found to be traditional family counsellors Court of Malawi in the closest city, which can (ankhoswe), traditional leaders, religious be over 200 kilometres away. All of this puts a leaders and community, non-governmental, huge burden on villagers and makes it nearly and faith-based organisations. The lack of impossible for them to access the justice access to justice is not new to Malawians; guaranteed under the Constitution. the government has been fighting this problem since the transition to a multi-party In this manner, while ‘equal justice under law’ is democracy in 1994 by, among others, adopting one of Malawi’s most firmly embedded rights, it a comprehensive law reform programme, is also the most widely violated legal principles. which is currently being implemented by the It comes nowhere close to describing the Malawi Law Commission11, and by establishing justice system in practice which is largely due state accountability bodies such as the Malawi to the inadequate resources allocated to the Human Rights Commission12 and the Office judiciary in general, and legal aid and lower of the Ombudsman13 to receive and redress courts in particular. Governmental legal service complaints from the public on human rights budgets are capped at ludicrously low levels,

11 Introduction

rendering effective legal assistance for most may be inaccessible for those who lack low-income litigants a statistical impossibility. legal representation, which is generally too This is not, of course, the only legal context in expensive for the poor.17 Restrictions on who which rhetoric outruns reality, but it is one of may practice law and provide legal services are the most disturbing, given the fundamental other barriers that can block more accessible nature of the individual rights at issue. forms of legal services such as law student legal clinics and paralegals. For the above cited reasons, among many others, despite their apparent need for the The foregoing analysis serves to illustrate the legal system, many poor Malawians steer clear need for alternative means, approaches, and of it, and from state institutions in general. practical solutions to addressing the prevalent They believe, often correctly, that these need for other conflict-handling mechanisms, institutions will not help solve their problems. and therefore, explains a much more pervasive Even if the system could conceivably provide phenomenon: the predominance of non-state adequate redress, it may take too long, cost justice systems as the primary mode of dispute too much, and require expertise that they lack resolution in the lived experiences of the and cannot afford.16 This scenario reflects a overwhelming majority of the world’s, as well as deeper problem; a fundamental lack of trust in Malawi’s poor. the formal legal system and state institutions by the majority of Malawians, compounded The challenge facing the Malawi justice system, by a combination of ineffectiveness and the government, and their international inaccessibility of the state institutions. development partners, is formidable: the key question, therefore, has been how to turn the Furthermore, the poor Malawians may be law into an effective tool for those living in unable to access the justice system simply absolute poverty (i.e. living with less than a because they do not understand it, or lack dollar a day) as well as other vulnerable and knowledge about it. They may be illiterate, marginalised groups such as women and which severely hampers their ability to interact children? with the justice system. In Malawi, the law is drafted and administered in the official Existing political, administrative, and judicial language, English, which many poor people institutions are not geared to protect the rights are unable to speak and/or read thereby of the poor. Much of the development- and excluding the majority of the population that donor community is in crisis as it comes to speak only local languages. Courts may also acknowledge that old approaches are not good be under-funded, and judicial procedures enough.18 Now is the time to reckon with reality,

12 Introduction

and strive for new solutions. As Albert Einstein In the same vein, a Special Law Commission observed, ”We can’t solve problems by using Report on the Review of the Legal Aid Act, and the same kind of thinking we used when we the Proposed Draft Legal Aid Bill, was debated created them.” 21st-century solutions are called and passed by the Malawi Parliament at the for to complement or even replace strategies same time as the Local Courts Bill in February, that were developed in the last century. As this 2011.21 The preamble to the Legal Aid Act paper demonstrates, we cannot expand access introduces it as an to justice to the poor who have no choice but to approach Informal Justice Systems (IJS) for Act to make provision for the granting their justice needs, if our attitudes towards the of legal aid in civil and criminal matters informal institutions are primarily negative and to persons whose means are insufficient if our belief and support is solely rooted in the to enable them engage private legal idea of the ‘judiciary’ as representing the entire practitioners and to other categories justice system. of persons where the interests of justice so require; to provide for the It was in light of the foregoing outlined establishment of a Legal Aid Fund; problems that a Special Law Commission in to allow for limited eligibility of other 2004 was appointed to review the old Traditional persons, besides legal practitioners, Courts Act (1969) in light of the current Malawi to provide legal aid for the purposes of legal system. The Special Law Commission this Act.”22 concluded that local courts can be a benefit to society by helping provide access to justice in As such, February 2011 brought about rural areas. As a result of this report, a proposal a development which could, ultimately, was formulated for a bill that would formally materialise into potential change for the poor re-introduce these courts into society. According living in the rural outskirts of Malawi. The to the Local Courts’ bill’s memorandum, the Act two new complementary bills were passed ”seeks to introduce a new genre of courts to be simultaneously in Parliament in an attempt to named ‘Local Courts’ with the primary function address the problem of access to justice by the of dispensing familiar and affordable justice for poor: the Local Courts Act and the Legal Aid the ordinary Malawian in line with the spirit of Act. These two pieces of legislation, when taken the Constitution, which aims at enhancing the together, may have a positive effect on the right of access to justice for all citizens.”19 The current legal system if implemented in practice. Special Law Commission Report and Draft bill But, many Malawians are wondering whether were debated and passed into law by the Malawi these new pieces of legislation will actually Parliament in February, 2011.20 enhance and expand their access to justice.

13 Introduction

The current research study aims at unearthing At another level, the research contributes to the answers and formulating recommendations in following development objectives: relation to this very question. • The enhancement of the operations of local 1.3 Research Objectives courts and legal aid through the generation of new knowledge and data concerning their 1.3.1 Research Goal potentials and limitations; This research aims at making recommendations • Improvement in the representation and for improving the functioning of local courts participation of poor and marginalised and legal aid in ways that empower users and community members, and integrating better protects the rights of poor, vulnerable, safeguards aimed at protecting their rights; and marginalised Malawians. • Improvement in the ability of poor and marginalised community members to make 1.3.2 Research Outcomes use of local courts and legal aid to uphold This research contributes to: their rights and obtain outcomes that are fair and equitable. • Understanding the futility of attempts at expanding access to justice for the poor 1.3.3 Research Outputs by working solely with the ‘judiciary’ as A comprehensive research report analysing representing the entire justice system; qualitative data, knowledge, and insights • Understanding the need to work relating to processes of local courts and legal collaboratively with both the formal and aid systems and advancing recommendations informal justice systems, and the need to for improving local courts and legal aid as well deal with negative attitudes towards informal as legal empowerment of poor, vulnerable and justice systems; marginalised people. • Appreciating the challenges that stand in the way of effective implementation of the newly 1.3.4 Central Research Questions passed Legal Aid and Local Court Acts; This research report analyses findings from • Learning of lessons to be learnt from other the extensive literature review in terms of the similar local courts and legal aid initiatives in following four principal research questions: other contexts and jurisdictions within Africa. • The difference between rhetoric and reality: How do the proposed operations in the local courts and in legal aid provision compare to what is happening in practice? Will the

14 Introduction

proposed operation of the local courts and meetings, and interviews were conducted with legal aid be appropriate to the unmet needs key informants and officials from Malawi’s of the poor and vulnerable groups? justice sector - from both formal and informal • Outcomes of delivery of Justice by Local systems at national and district levels. Key Courts and provision of legal aid: Will the documents which form the basis of the desk outcome be different now that local courts study, were solicited and obtained from the will officially be allowed to hear poor and justice sector institutions. These documents vulnerable peoples’ cases? Will the provision include: Malawi Law Commission Law Reform of expanded legal aid under the new Legal Reports and Draft Bills on Legal Aid and Local Aid Act make any difference? Courts; the Malawian Constitution; Laws of • Impact of Systems Change: Will the Malawi (Old Courts Act, Traditional Courts change in the system work as it is currently Act, Chiefs Act, Legal Practitioners and Legal conceptualised, structured, and proposed? Education Acts etc.); Parliamentary Hansards If not, how should it be changed to provide debating the draft Legal Aid and Local Courts access to affordable, fair, and appropriate Bills; The Legal Aid and Local Courts Acts justice for poor and vulnerable people? How passed and Gazetted by Parliament. The main can the operation of local courts be improved reason for conducting the interviews and in terms of appropriate jurisdiction, enhanced obtaining these documents prior to travelling representation, participation, and rights to Denmark was the realisation that it was protection of women, children, and other poor highly unlikely that the same sources could be and vulnerable groups? obtained in Denmark. • Lessons to be learnt from case studies of Informal Justice Systems from other jurisdictions: What lessons can be learned from other similar local courts and legal aid initiatives in other contexts and jurisdictions within Africa?

1.4 Methodology The two predominant research techniques will be (1) meetings and interviews with key informants and justice sector stakeholders, and (2) a desk study of available literature and further follow-up contacts. Prior to travelling to Denmark and embarking on the study,

15 Chapter 2

THE ‘ACCESS TO JUSTICE’ CONCEPT AT THE INTERNATIONAL LEVEL

‘Justice’ is an ideal of accountability There is no universal definition for the term and fairness in the protection and ’rule of law’ or a common approach towards the vindication of rights and the prevention Rule of Law. Various authorities have articulated and punishment of wrongs. Justice the concept of the Rule of Law in various ways. implies regard for the rights of the Justice Anthony Kennedy, of the US, refers to accused, for the interests of victims, and the Rule of Law as for the well-being of society at large. It is a concept rooted in all national (…) a principle of governance in which cultures and traditions and, while its all persons, institutions and entities, administration usually implies formal public and private, including the state judicial mechanisms, traditional dispute itself, are accountable to laws that are resolution mechanisms are equally publicly promulgated, equally enforced relevant. The international community and independently adjudicated, and has worked to articulate collectively which are consistent with international the substantive and procedural human rights norms and standards. requirements for the administration of It requires, as well, measures to justice for more than half a century.”23 ensure adherence to the principles of supremacy of law, equality before the (UN Secretary General, Kofi Annan) law, accountability to the law, fairness in the application of the law, separation Access to Justice is not a stand-alone right; of powers, participation in decision- rather, it is a concept. It is therefore necessary making, legal certainty, avoidance of at the outset to investigate and interrogate arbitrariness, and procedural and legal the concept of access to justice. In this regard, transparency.”24 ‘access to justice’, as a concept, is closely connected to another broader concept, ‘the Rule of Law’.

16 THE ‘ACCESS TO JUSTICE’ CONCEPT AT THE INTERNATIONAL LEVEL

From this statement, it is possible to state Incredibly difficult to fulfil. Even that there are some universally agreed key fully fledged democracies with well- distinctions and principles relating to the Rule functioning state institutions struggle of Law. to do so. In countries where democracy is weak, institutions are more likely to A key distinction that is generally accepted be captured by elites. All too often, the is between ‘rule by law’ and ‘rule of law’: law is a tool of the state and ruling elites under ‘rule by law’, law is an instrument of to use as they please – an option for government and government is considered the few, not an obligation that applies above the law; while under ‘rule of law’, equally to all.”25 everyone in society is bound by the law, including the government itself. The ‘rule of Access to justice as a concept has been law’ also connotes the horizontal relations outlined in a number of international and amongst citizens. regional instruments, which establish principles and minimum rules for the administration Common principles of the Rule of Law, of justice and offer fairly detailed guidance therefore, include: to states on human rights and justice. These include Basic Principles on the Independence • Predictability, certainty, publicity and clarity of of the Judiciary, Basic Principles on the laws; Role of Lawyers, Guidelines on the Role of • Open, clear and stable rules for making such Prosecutors, Guidelines and Principles on laws; the Right to Fair Trial and Legal Assistance in • Prevention of arbitrary exercise of power; Africa (adopted by the African Commission • Promotion of formal equality before the law; on Human and Peoples’ Rights in 2003), and • Promotion of order. the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 26. As fundamental as the principle of equality In addition, the concept of access to justice before the law is, it is also can be drawn from a composite of related provisions in the international human rights instruments, including the United Nations Universal Declaration of Human Rights (UDHR) and specific covenants, conventions, rules, guidelines, and standards promulgated by the international community under the auspices of the United Nations. Relevant provisions of

17 THE ‘ACCESS TO JUSTICE’ CONCEPT AT THE INTERNATIONAL LEVEL

the UDHR are articles 6, 8, and 10. Article 6 of freedoms guaranteed by the present Charter.” UDHR simply provides that “everyone has the The Malawi Constitution also domesticates and right to recognition everywhere as a person entrenches the concept of access to justice before the law” 27. Article 8 builds on this under Sections 41. Section 41(1) is couched in and states that: “everyone has the right to an similar terms as Article 6 of UDHR. Section effective remedy by the competent national 41(1) states that “every person shall have a tribunals for acts violating the fundamental right to recognition as a person before the law”. rights granted him by the Constitution or by Section 41(2) builds further on this by stating law”. Further, article 10 states that “everyone that: “every person shall have access to any is entitled in full equality to a fair and public court of law or any tribunal with jurisdiction hearing by an independent and impartial for final settlement of legal issues.” Further, tribunal, in the determination of his rights and Section 41(3) provides that “every person obligations and of any criminal charge against shall have the right to an effective remedy by him.” 28 a court of law or tribunal for acts violating the rights and freedoms granted to him by this At the African regional level, access to justice is Constitution or any other law.” As stated in the enshrined in the African Charter on Human and earlier chapter of this paper, in an effort to Peoples’ Rights under Articles 5, 7, and 26 in translate the concept of access to justice into the following terms: Article 5 states that “every practice – apart from establishing a system of individual shall have the right to the respect courts under the judiciary – Malawi has also of the dignity inherent in a human being and established state accountability bodies such to the recognition of his legal status”. Article as the Malawi Human Rights Commission 7 states that “every individual shall have the and the Office of the Ombudsman, to receive right to have his cause heard. This comprises and redress complaints from the public on (a) the right to appeal to competent national human rights violations and maladministration organs against acts violating his fundamental respectively 29. rights as recognised and guaranteed by conventions, laws, regulations and customs in Several principles seem likely to command force.” Further, Article 26 entrenches the rights broad agreement within the concept of access to access justice by stating that “States Parties to justice. Access to justice rests on three to the present Charter shall have the duty to key foundations 30: substantive law, legal guarantee the independence of the Courts and institutions, and legal services. First, the shall allow the establishment and promotion substantive law must advance appropriate of appropriate national institutions entrusted norms that promote productivity, efficiency, and with the promotion and protection of rights and social justice. If they do not, then improving

18 THE ‘ACCESS TO JUSTICE’ CONCEPT AT THE INTERNATIONAL LEVEL

access to the legal system cannot be counted of access to legal justice emphasise the as improving access to justice. Secondly, the element of “access”. It is important to note institutions that develop, apply, and enforce in relation to the third foundation that most the law - especially, but not exclusively the of the people cannot use the legal system courts - must be competent, impartial, efficient, effectively without the assistance of specialist and effective. Access to an unjust legal system legal service providers. Without access to such does not qualify as access to legal justice, no providers, access to the legal justice system is matter how excellent the laws appear on the difficult or impossible. However, the tripartite statute books. Third, potential users of the legal categorisation of the three foundations of system must be able to rely on an efficient and access to justice should not obscure the fact equitable system for producing and allocating that these three aspects of access to legal legal services. The first two foundations justice are interdependent. 31

FUNDAMENTAL ELEMENTS OF ACCESS TO JUSTICE

ACTIONS NEEDED CAPACITIES NEEDED

GRIEVANCE RECOGNITION LEGAL PROTECTION

AWARENESS LEGAL AWARENESS

CLAIMING LEGAL AID & COUNSEL

ADJUDICATINGG ADJUDICATION

ENFORCEMENT & CIVIL REMEDY ENFORCING SOCIETY OVERSEIGHT

19 THE ‘ACCESS TO JUSTICE’ CONCEPT AT THE INTERNATIONAL LEVEL

UNDP defines ‘access to justice’ as “the ability the rule of law is too fragile seldom of people to seek and obtain a remedy through lead to lasting democratic governance. formal or informal institutions of justice, and in We have learned that the rule of law conformity with human rights standards.”32 delayed is lasting peace denied, and that justice is a handmaiden of true While the main focus of access to justice and peace. We must take a comprehensive Rule of Law is the creation of an efficient, approach to Justice and the Rule of effective system for delivering legal services, Law. It should encompass the entire the reality on the ground is that many poor criminal justice chain, not only police, people do not use the legal system because but lawyers, prosecutors, judges and they believe, often correctly, that the legal prison officers, as well as many issues system will not provide them with an effective beyond the criminal justice system. remedy for their problems. Many poor people, But a “one-size-fits-all” does not work. who might otherwise avail themselves of the Local actors must be involved from the legal system to resolve disputes and advance start.”34 their interests, do not do so because they lack the time, resources, and expertise necessary All these challenges are largely because to navigate the legal system on their own, “access to justice is (…) much more than and because they are not able to source the improving an individual’s access to courts, or assistance of legal service providers who could guaranteeing legal representation. It must be help them.33 defined in terms of ensuring that legal and judicial outcomes are just and equitable.”35 It is for these reasons that Kofi Annan, the then Indeed, UNDP underscores the importance of Secretary-General of the United Nations warns; access to justice by going as far as to regard ”access to justice” as a basic human right as The United Nations has learned that well as an indispensable means to combat the rule of law is not a luxury and that poverty, prevent and resolve conflicts.”36 In this justice is not a side issue. We have seen regard, access to justice is also closely linked to people lose faith in a peace process poverty reduction since when they do not feel safe from crime. We have seen that without a credible machinery to enforce the law and resolve disputes, people resorted to violence and illegal means. And we have seen that elections held when

20 THE ‘ACCESS TO JUSTICE’ CONCEPT AT THE INTERNATIONAL LEVEL

Being poor and marginalized policy and welfare systems, as well means being deprived of choices, as a lack of recognition of economic opportunities, access to basic resources assets/activities, worsens existing and a voice in decision-making. Lack of vulnerabilities and further constrains access to justice limits the effectiveness the economic and social development of poverty reduction and democratic opportunities of the poor.”40 governance programmes by limiting participation, transparency and It is for the above reasons that UNDP adopts a accountability.”37 human rights-based approach41 to its access to justice programming: At another level, as linked to the concept of access to justice, poverty manifests itself • Focus on the immediate, as well as in multiple others ways: especially in the underlying causes of the problem - the sense that “laws that are vital to the poor factors impeding access (lack of safeguards are often unclear, contradictory, outdated, or to access, or insufficient mechanisms discriminatory in their impact.”38 In Malawi, for that uphold justice for all under any instance, an absence of, or poorly designed circumstances); procedural laws, i.e. lack of functioning • Identify the “claim holders” or beneficiaries mechanisms to implement rights, are important - the most vulnerable (rural poor, women reasons for ineffective substantive laws. This and children, people with diseases and may partly explain why constitutional rights, as disabilities, ethnic minorities, etc.); progressive as they may appear, remain so on • Identify the “duty bearers” - the ones paper only; taxes are not efficiently collected; accountable for addressing the issues/ and public investments in social services stay problems (institutions, groups, community below ‘guaranteed’ levels.39 leaders, etc.); • Assess and analyse the capacity gaps of Another staggering fact about poverty is that claim-holders to be able to claim their rights, and of duty-bearers to be able to meet their the vast majority of the world’s obligations, and use such analysis to focus economy lives their daily lives in what capacity development strategies. is often referred to as the informal or extra-legal sector. At all levels As the World Bank acknowledges, “the concept (individual, family, community of access to justice [should] focus on two and national) the lack of access to basic objectives of a legal system: (1) that effective legal protection and formal it is accessible to people from all levels of

21 THE ‘ACCESS TO JUSTICE’ CONCEPT AT THE INTERNATIONAL LEVEL

society; and (2) that it is able to provide fair a bottom-up approach in the sense that decisions and rules for people from all levels it is based in the realities of poverty and of society, either individually or collectively. The exclusion as experienced by the poor, fundamental idea to be mainstreamed in this and requires their active participation concept is the achievement of social justice for and buy-in. At the same time, pro- all citizens.”42 Emphasis on achieving ‘social poor access to justice requires political justice for all citizens’ stretches the concept of leadership and commitment from the ‘access to justice’ even further in undertaking top and alliances with key stakeholders. the dimension of ‘access to justice for the poor’ It is a political approach based on broad - in other ways, ‘pro-poor access to justice’. This coalitions for change, rather than a requires further elaboration. technical or bureaucratic approach that engages only with international civil Recent World Bank justice projects may serve servants, government leaders, and to illustrate the concept of ‘pro-poor’ access to elites. Above all, while pro-poor access justice. An example is the World Bank’s Justice to justice is buttressed by international for the Poor (J4P)43 program which is a global human rights principles, its priorities research and development program aimed at are set by the poor and grounded in informing, designing, and supporting pro-poor local needs and conditions.”44 approaches to justice reform. It is an approach to justice reform which: In this paper, the concern is more with ‘pro- poor’ access to justice. While the bulk of the Sees justice from the perspective of the poor or other literature reviewed has addressed the marginalised; concept of access to justice in general terms, Is grounded in social and cultural contexts; this paper understands the concept as being Recognises the importance of demand in directly linked to human rights. As such, it building equitable justice systems; is acknowledged that human rights take a Understands justice as a cross-sectoral issue. deliberate bias in favour of the vulnerable and marginalised groups - hence the concern As such, ‘pro-poor access to justice’ is viewed with ‘pro-poor’ access to justice. Further, as being about the distinctive manner in which as a recent study commissioned by UNDP, access to justice as a concept is understood, UNICEF, and UNIFEM and undertaken by DIHR articulated, and carried out in practice. In other acknowledges; words, ‘pro-poor access to justice’ is

22 THE ‘ACCESS TO JUSTICE’ CONCEPT AT THE INTERNATIONAL LEVEL

human rights standards offer the state institutions tend to serve the possibility of fairness in three established networks of the political dimensions of justice: and economic elites rather than the · Structure, encompassing participation poor. Comparative global statistics on and accountability aspects: Particular access to justice are hard to come by; attention must be paid to the rights of even accurate measurement is tricky. A groups not strongly represented in IJS. country that is thronging with lawyers, This includes women, minorities, and for instance, may not necessarily have children. a better and fairer legal system. But · Procedure, giving guidance for figures can still indicate the scale of the adjudication processes that ensure problem. In India, for example, where that the parties to a dispute are treated there are reportedly only 11 judges for equally with each other, having their every million people, more than 20 case decided by a person who has no million legal cases are pending, and interest in the case and who is obliged some civil cases take over 20 years to to decide it only on facts and objective reach court. Around a million cases are rules rather than personal preferences, pending in Kenya, over 300,000 before or that a person making an assertion the High Court in Nairobi alone. The or accusation has to prove it with average judge in the Philippines has a verifiable evidence. backlog of 1,479 cases.”46 · Substantive rules that protect the vulnerable, such as when children The Malawi situation is not any better; “between should not be married off for the 80 and 90% of all disputes are processed economic benefit of parents or through customary justice forums”47. guardians, or widows have the right to inherit.”45 While equal access to justice may currently be an implausible ideal, adequate access to In this regard, despite the unequivocal provision fair justice should remain a societal concern in the Universal Declaration of Human Rights, and aspiration. To begin with, the law should tens of millions of people still experience a lack be regarded as a public good. As such, of access to justice. The lack of access to justice promoting and protecting legal rights of the experienced by the majority of the poor leaves poor, vulnerable and marginalised people will them even more vulnerable to exploitation. As often have value beyond what those rights are the UN Commission on Legal Empowerment of worth to any single client. What constitutes the Poor acknowledges that the appropriate balance in terms of ‘adequate

23 THE ‘ACCESS TO JUSTICE’ CONCEPT AT THE INTERNATIONAL LEVEL

access to justice’ should therefore be a matter concern in the international policy decisions of debate within the legal and justice services which have yet to impact access to justice community. The point is simply that the current programming, constitutional jurisprudence, or state of access to justice has inappropriately law school curricula in countries like Malawi. skewed the balance. There has been little or no Later chapters of this article argue for a more effort to effectively address common access attainable aspiration. They focus on a candid to justice problems, nor efforts at helping to confrontation of our failures: our unwillingness organise community initiatives that will help to take the justice needs of the poor seriously at the poor to access justice. And such challenges conceptual, doctrinal, political, or professional are likely to persist unless policy makers, and levels. We pose a challenge to do better. The justice and legal professionals are persuaded objective is to explore the outlines of a more of the importance of adequate access to manageable commitment, adequate access justice in practice as well as in principle. To that to justice for the poor, and some strategies for end, one would have thought that courts, bar pushing us in that direction. associations, law schools, legal aid providers, and communities would be engaged in dialogue towards reaching agreement about this concern and aspiration. On the contrary, the reality as we shall see in later chapters, is that ‘access to justice’ remains a “legal context in which rhetoric outruns reality”48. This is a most disturbing irony given the fundamental nature of the individual rights at issue. It is even more disturbing that the inequities in accessing justice attract so little attention and concern. Neither the public nor the legal profession has been moved to respond in any significant fashion. Entire categories of the “poor” have been denied legal assistance, and political leadership and the judicial profession have largely acquiesced in these limitations. Access to justice for the poor is the subject for countless research agendas, law commissions, committees, conferences, and colloquia, but it is only now beginning to be voiced as a core

24 Chapter 3

THE MALAWI PRE-2011 ACCESS TO JUSTICE LEGAL FRAMEWORK

3.1 The Pre-Colonial Period the Ngoni in the 17th century in the Northern The first of the several related Maravi clans to Region of Malawi. These groups of people are settle in what is known as Malawi today, arrived predominantly patrilineal, and mostly occupy in the area in the 13th Century AD from the the northern region of Malawi. Simultaneously, northern Shaba province, and settled near Lake the Yao and Lomwe, other matrilineal groups Malawi. From this area they branched out into of people, moved in from Mozambique and the Shire Valley, settling in the western and settled in some parts of the southern Region southern shores of Lake Malawi and in nearby of Malawi, where they have stayed up to the Zambia and Mozambique, in search of good present day49. All these various clans brought land. In the course of these migrations, one with them their own mechanisms for settling clan, the Phiri clan, emerged as the leader of disputes - largely distinguishable - and the other clans, namely, the Banda, Mwali, and influenced by whether they were predominantly Nkhoma clans. In time, the group had identified matrilineal or patrilineal. This then was the a leader out of the many leaders who led the genesis of the pluralistic composition of justice match into Malawi, as a paramount chief, and systems in Malawi. he was bestowed with the title of Karonga. The Maravi clans came to be known as the Chewa, 3.2 British Colonial Period who later branched further into the Mang’anja The British colonial rule led to a hybrid and Nyanja tribes. They are predominantly system of law. British common law applied to matrilineal, and primarily occupy the central Europeans and was enforced in formal courts, region of Malawi. Alongside the settlement while Africans fell under the jurisdiction of of this group, was the settlement of a series customary law and adjudication mechanisms. of other clans referred to as the Tumbuka, However, “native courts,” being subject to a followed by the Ngonde, in the 15th Century, different set of laws, still fell under the control and later on the Phoka, Nkhamanga, and Henga of the Colonial Government; they attained in the 17th and early 18th Century, and finally quasi-formal status in the threshold between

25 THE MALAWI PRE-2011 ACCESS TO JUSTICE LEGAL FRAMEWORK

judicial and administrative functions of the and was far less effective than the indigenous colonial government. This is best reflected in system. However, as supervision was fairly loose two observations, firstly, that European District in many parts of the country, practices in these Commissioners, responsible for administrative parts were undoubtedly less affected.52 functions at the district and local levels, held broad powers of review over lay judges in 3.3 Post-Colonial Period under Dr. customary courts. And, secondly, Africans could Kamuzu Banda sometimes appeal judgments in criminal cases Malawi’s post-colonial period still relied to British lower courts. In practice, customary heavily upon the basic legal architecture that institutions came to occupy a third tier of the was constructed to support colonial rule. Dr. colonial judicial system, beneath magistrate Kamuzu Banda’s regime did not only retain and high courts. Customary practices were basic matters of criminal and civil procedure transformed under colonial rule as un-amended, but also other statutes governing the most fundamental aspects of Malawi’s ’Indigenous’ norms and procedures economy and society, including the Penal Code. were allowed to coexist, provided they Many of these statutes centralised power in the were not repugnant to the European executive, and heavily curtailed accountability notion of natural justice and morality. and basic citizens’ rights. It was a further feature They were administered directly, either of the colonial and post-colonial legal systems by colonial authorities (advised by local that they involved regulation through top-down personnel), or by a traditional authority rules, and the application of criminal sanctions, officially invested with judicial powers. rather than systems of consultation with the In this way, a parallel system of laws regulated. The legislation also created strong and courts emerged, transforming police powers and limitations on civil rights dynamic traditions into rigid customary such as preventive detention and limitations on laws, sometimes even codified and freedom of assembly. ruled by an uncontested authority.”50 The Traditional Courts were granted sweeping This process paved the way for indirect rule, powers equal to the High Court to try Criminal as it isolated individual chiefs who could serve Cases including murder, treason, and sedition as points of control to the administration51. in 1969. Before this, during both Colonial and Thus, the British policy of selecting chiefs who Post-colonial periods, represented their interests to newly established local/native courts fundamentally changed the original balance of power among communities,

26 THE MALAWI PRE-2011 ACCESS TO JUSTICE LEGAL FRAMEWORK

magistrates’ courts had no power to state justice systems54 rather than through the administer customary law. That power formal courts. Traditional Courts functioned as was vested in both formal and informal officially recognised customary courts in Malawi traditional courts, and the power to under the Traditional Courts Acts, which dated hear appeals against their decisions from the colonial period and were expanded in was vested in the High Court. Through authority under the regime of Hastings Kamuzu the exercise of this power, the High Banda. The Traditional Courts Act remained Court participated in judicialisation technically in force until 201155 even though of customary law. However, in 1969, the courts it regulated were abolished with the the power was transferred to district, transition to a multi-party system in 1994, due regional and the national traditional to their excesses. courts and common law courts no longer had any role in the judicialisation The Traditional Courts were permitted to use of customary law or establishment of the customary law of an ethnic group in a precedents. However, after the de facto particular locality in civil cases and criminal abolition of the formal traditional court cases, as long as this did not conflict with system in 1994 magistrates’ courts and statutory law and was not repugnant.56 It has the High Court had been once again been argued that been empowered to apply customary law alongside statutes, common law the relationship between (what has and principles of equity.”53 been deemed) customary law and state law leads to even more confusion. However, as in many other developing Most colonial regimes introduced countries, prior to 2011 as is the case today, colonial repugnancy clauses thereby Malawian citizens often faced substantial recognizing customary law only to the barriers in accessing the formal court extent that it conformed to European structures. These barriers include, inter alia, legal norms. Similarly, most African substantial delays and comparatively high constitutions now recognize customary usage costs, limitations on available remedies, courts only in so far as they do not perceptions of bias, language barriers, violate any of the fundamental rights inadequate information, and lack of access enshrined in state constitutions. While to legal aid, corruption, as well as differing this may sound reasonable to those views and concepts of justice. As a result, sympathetic to human rights norms, where possible, local communities often communities are left with the difficult pursued cases through alternative or non- task of defining which practices

27 THE MALAWI PRE-2011 ACCESS TO JUSTICE LEGAL FRAMEWORK

violate these norms (presuming that With the change of governance to a multi-party there is any attempt to monitor such system in 1994, a new focus on governance compliance). Such limitations may also and justice work emerged in Malawi. Since be seen as an attempt to undermine then, good governance and human rights customary systems by setting the practices have been high on the agenda of the standard too high, particularly Malawi government and the general public, considering it could hardly be claimed as supported by international development that many state systems currently partners. The right to a fair public hearing of comply with international human rights any dispute was constitutionally enshrined standards that are often also enshrined under ’Access to justice and legal remedies’ in state law.”57 within Section 4159 of the 1994 Republic of Malawi Constitution. For example, Section 41 With such a plural system of justice, the provides for certain rights to facilitate access to interface of these different avenues could be, justice and legal remedies such as the right of and still are, very challenging for the poor, every person to recognition as a person before marginalised, and vulnerable Malawian who the law, the right of access to any court of law may have had a grievance, as he or she was or any other tribunal with jurisdiction for final forced to choose between multiple, and often settlement of legal issues and the right to an conflicting, Justice and Rule of Law systems. effective remedy by a court of law or tribunal, Since informal justice methods were based for acts violating the rights and freedoms largely on local value systems, they could guaranteed by the Constitution. Further, section provide conflict resolution in a way that is 44 has isolated and entrenched the right to perceived as more legitimate in the eyes of the ’equality and recognition before the law’ as involved parties. Nevertheless, these systems non-derogable among the rights under section could also be discriminatory and captured by 41. vested interests – as exemplified by the way in which the Traditional Courts were captured In order to further emphasise the importance and abused by politicians under Dr. Banda’s of access to justice and legal remedies, the regime as a means of retaining power.58 They Malawi Law Commission considered this right may also be ill-equipped to address issues extremely important and recommended that it involving actors outside of the communities, be included among the non-derogable rights such as between communities with competing under Section 44 of the Malawi Constitution. customary law systems. The Commission argued that this right is closely associated with the right to ’equality and recognition before the law’ (both non-

28 THE MALAWI PRE-2011 ACCESS TO JUSTICE LEGAL FRAMEWORK

derogable rights) to the extent that the two cannot be separated. Consequently, the Commission recommended amendment of section 44(1) (g) to incorporate “the right of access to any courts of law or any other tribunal with jurisdiction for final settlement of legal issues”60 as a non-derogable right. Malawi Parliament is yet to debate such recommendations by the Malawi Law Commission.

29 Chapter 4

THE MALAWI POSt-2011 ACCESS TO JUSTICE LEGAL FRAMEWORK

4.1 The Malawi Political and Legal justice to provide effective and fair access to Context justice - especially for the poor, vulnerable, and Malawi is a country in transition. The country’s marginalised Malawians. institutions of democratic governance, justice, and Rule of Law have been established against The Malawi Constitution also recognises a historical background of a “closed society the existence of traditional leadership. The (… ) where silence ruled”.61 Until recently, Constitution provided for the possibility of “Malawians did not live in an open society. traditional leaders holding judicial functions Seventy years of colonial rule (1891-1961) through local courts subordinate to the High were immediately followed by thirty years of Court. Section 110(3) of the Constitution provides: one-party dictatorship (1964-1994)”62. The last 15 years have been characterised by a Parliament may make provision for transition to multi-party democracy and the traditional or local courts presided over institutionalisation of rights and freedoms. by lay persons or chiefs: Provided that These changes necessitated the establishment the jurisdiction of such courts shall of new institutions to respond to the new be limited exclusively to civil cases at challenges. More importantly, the political customary law and such minor common changes entailed the emergence of a new law and statutory offences as prescribed political, legal, and socio-economic culture by an Act of Parliament.” in which people have become freer than was hitherto the case. Malawians have acquired This is a function, which traditional leaders social, political, and economic rights that have held by custom throughout history. have to be fulfilled. Civil liberties and various The Chiefs Act also recognises the role of forms of human rights and freedoms are traditional leadership. However, the latter piece constitutional rights. This also necessitates the of legislation dilutes the powers of traditional reform or establishment of new institutions of leadership by subjugating it to the office of

30 THE MALAWI POSt-2011 ACCESS TO JUSTICE LEGAL FRAMEWORK

the President. Traditional leaders therefore donors who provide most of the funding become an extension of the Executive arm of for its programmes than to those of the government. the executive, which may favour only legislation focused on the delivery 4.2 The Need for Legal Reform of immediate social and economic Despite Malawi’s strong support for benefits.”63 constitutionalism and an independent judiciary, there has always been the need for laws that 4.3 Linkages between Formal and are suited to the needs of the majority poor Informal Judicial Systems both in form and content. There are several In 2010, Malawi Parliament saw the need to reasons why Malawi’s legal system was not establish clear institutional linkages between better adapted to the justice needs of the poor: the informal judicial system and the judiciary firstly, the substantive laws applied by the when inspired by a 2007 Report by the Malawi courts were, and still are, largely out-of-date Law Commission64. They preferred an official and some still carry the stamp of Dr. Kamuzu way of creating or appropriating informal Banda’s authoritarian rule. Secondly, Malawi dispute resolution forums that draw from has been far behind its law reform programme, local norms/customs and practices, while and in the few cases where law reforms have having their operation focused on general civil been proposed, mainly by the Malawi Law jurisdiction and criminal jurisdiction limited Commission, there has been either a lack of to minor cases65. Such a linkage would also political will or parliamentary time to legislate allow routine reviews to prevent gross abuses the reforms. Apart from the fact that the Malawi of natural justice and human rights, in much Parliament gives too much priority to debating the same way that high courts routinely review political issues, Dr. Edge Kanyongo advances lower Magistrate court decisions. two other reasons for the parliament’s failure to legislate on the Law Commission’s However, the Malawi Law Commission and recommendations: Parliament had to bear in mind that, in the past, relations between formal and informal the first is that the Law Commission courts have not always been smooth. In most is not the only source of proposals for instances they have been openly hostile. Some law reform and its proposals have to of the common points of tension that arose compete for space on the government’s during Dr. Kamuzu Banda’s parallel system legislative calendar. It is also possible of courts’ failure to define the relationship that the Law Commission’s priorities between formal and informal judicial may be closer to those of the foreign institutions were:

31 THE MALAWI POSt-2011 ACCESS TO JUSTICE LEGAL FRAMEWORK

• IJS over-stepping their jurisdiction. In some 4.5 The Legal Aid Act cases, intervening in cases that were already The Legal Aid Bill was first introduced and before magistrates’ courts; debated in the Malawi Parliament during • Lack of clear understanding by IJS of their the Third Meeting of the 42nd Session on functions due to lack of training since many December 9th, 2010.66 The Minister of Justice of the Chiefs presiding over traditional courts and Constitutional Affairs, Hon. Chaponda did not receive training similar to that of their stated that the Legal Aid Bill was prepared by counter parts under magistrate courts; the Malawi Law Commission in 2005, following • Poor record keeping by IJS, which made nation-wide consultations which started in it difficult for formal courts to consult the 2003. This was in conformity with Section 42 of decisions arrived at; the Malawi Constitution, which obliges the state • Lack of monitoring or supervision, largely to provide legal aid to indigent clients in both because such responsibility for monitoring criminal and civil matters. Indeed, the preamble had not been assigned under any statute; to the Legal Aid Bill introduces it as an • Former traditional courts being granted criminal jurisdiction equal to the High Court Act to make provision for the granting - entailing that a ‘chief presiding over a of legal aid in civil and criminal matters Traditional Court was parallel to the Chief to persons whose means are insufficient Justice’. to enable them engage private legal practitioners and to other categories 4.4 State Interventions of persons where the interests of Introducing Reforms Expanding justice so require; to provide for the Access to Justice for the Poor establishment of a Legal Aid Fund; Guided by the 1994 Malawi Constitution (s110), to allow for limited eligibility of other in February, 2011, the Malawi Parliament persons, besides legal practitioners, enacted and passed legislation granting to provide legal aid for the purposes of general civil and limited criminal jurisdiction to this Act (…).”67 Local Courts. Local Courts now have concurrent jurisdiction with the lower Magistrates’ Courts in The Minister of Justice and Constitutional Affairs civil matters and petty criminal offences. At the further introduced the purpose of the Bill as “to same time, the Malawi Parliament also passed repeal the Legal Aid Act [Chapter 4:01] in order a new Legal Aid Act expanding the scope of to expand Legal Aid Services so as to make legal aid for poor and indigent Malawians. In justice accessible to all”. 68 In expounding on turn, each of the two new Acts and the debate how the Bill was going to “expand Legal Aid surrounding their passing into law will be services”, the Minister of Justice alluded to the analysed below. following as some of the ways:

32 THE MALAWI POSt-2011 ACCESS TO JUSTICE LEGAL FRAMEWORK

• Expansion of the ambit of legal aid to include The Legal Aid Bill (now Legal Aid Act) is a pre-trial assistance, legal advice, and legal liberal piece of legislation, which provides education; an expanded access to justice for the poor • Recognition of the role of other players in the and indigent Malawi’s. Some of the notable provision of legal aid services such as lawyers, innovative features of the new law, which set law students, paralegals, and NGOs; it apart from the old law as highlighted in the • Addressing the problem of organisational above table include the following: structure of the existing Legal Aid Department by introducing a new Legal Aid Expounding on the right of access to justice Board independent of the Ministry of Justice through legal representation as enshrined and Constitutional Affairs; under section 42 of the Malawi Constitution • Narrowing down the authorities eligible for (1994): granting Legal Aid; • Reviewing the criteria for granting legal aid; • Broadening of the ambit of legal aid: • Introduction of a Legal Aid Fund. traditionally, legal aid under the old law was equated to legal representation in court. The In order to further appreciate the changes new law goes beyond this narrow definition introduced by the new Legal Aid Bill, a of legal aid and expands it to include legal schematic comparison of the old and new Legal advice, legal education, pre-trial assistance, Aid Acts is provided below: and pro-bono assistance.

Areas Reviewed OLD LEGAL AID ACT NEW LEGAL AID ACT Ambit of Legal Aid • Silent on manner and form Expanded to include: in which legal aid becomes • Provision of information. available. • Provision of education. • No provision for legal advice. • Pre-trial assistance and advice. • No provision for legal • Legal assistance through pro bono education. services. • Remits the grant of legal aid to • Alternative Dispute Resolution (ADR) Magistrate Courts, High Court processes recognised as options. and Supreme Court.

33 THE MALAWI POSt-2011 ACCESS TO JUSTICE LEGAL FRAMEWORK

Recognition of the • Role of other players not Role of other players legally recognised role of other players legally recognised and and defined, such as: defined as having a bearing in • Malawi Law Society. expanding provision of legal • Senior law students. aid services. • Paralegals. • Civil society organisations. Problem of organi- • Legal Aid Department as a • Legal Aid Department transforms into sational structure department of the Ministry of an ‘independent’ Legal Aid Bureau Justice (not independent). headed by a Director (appointed by the • Legal Aid Department Public Appointments Committee). operating only in three regions • Geographical extension of legal aid of Blantyre, Lilongwe and services: Legal Aid Bureau to operate Mzuzu. beyond regional centres and to open District Legal Aid Offices. Authorities eligible • Minister of Justice authorised • The number of officials eligible for to grant Legal Aid to grant legal aid. granting legal aid narrowed down, and • Judicial officers the Minister removed from the list. • Principal Legal Aid Advocates. Criteria for granting Areas not qualifying for legal • Revised to be more in tune with the legal aid Aid: times. • Non-court proceedings and tribunals. • No guidelines for eligibility of persons seeking legal aid. Legal Aid Fund Legal Aid Fund introduced. Sources to • Sole reliance of Government consist of: funding. • Allocations from Treasury. • No Legal Aid Fund. • Contingency fees. • Costs awarded by courts. • Deductions from costs awarded by courts. • Contributions made by legally aided persons.

34 THE MALAWI POSt-2011 ACCESS TO JUSTICE LEGAL FRAMEWORK

• Extending coverage of legal aid to civil69 and right to legal representation is entrenched in criminal70 matters which directly concern and the law. Whether this translates into practical affect poor people’s rights. reality depends largely on whether Malawians, who have been described elsewhere as people Section 23 grants powers to courts, in who accept to “suffer in silence”, will now open appropriate cases, to proactively direct that a up and take advantage of their new-found person who is appearing before them (in civil rights. Bearing this challenge in mind, the role as well as criminal cases) be assisted through of legal aid and court officials in promoting legal aid. This is a positive development since access to such rights closer to communities in most cases in the past, once the Legal Aid cannot be overemphasised. Department had refused to offer legal aid, the person affected did not have the right of At the present moment, in order to gain a recourse against the decision. further appreciation of the dilemmas facing Malawi in adopting the new Legal Aid law, it The above power of the courts complements may be necessary to present an analysis of the Section 24 under the new law, which gives a manner in which the Legal Aid Bill was debated person who is denied legal aid, the right to in Parliament. In the next few paragraphs, a appeal against the decision. flavour of the views of Members of Parliament during debate in the house is presented. The legal aid system that proposes to include a wider spectrum of stakeholders should have The introduction of the bill was generally a broader appeal. And the idea that financial welcomed by both sides of the National support for such a system should come from Assembly (government and opposition) as a a variety of sources such as donor funding, positive development. The main opposition rather than general tax funds, is also likely to party, the Malawi Congress Party (MC), speaking command greater support, as is promoting the through its Spokes Person on Legal Matters sustainability of the Legal Aid Fund. However, Hon. Menyani, represented the view that due to currently strained relations between once the bill becomes law, it would assist the the Malawi Government and some traditional poor, vulnerable, and marginalised Malawians donors to the justice sector, there have not including: been any substantial inflows to support implementation of the new Legal Aid law71. A certain category of accused persons which solely rely on legal aid such In many ways, it would appear that the new as homicide suspects overstaying on Legal Aid Act tries very hard to ensure that the remand for a period exceeding 8 to

35 THE MALAWI POSt-2011 ACCESS TO JUSTICE LEGAL FRAMEWORK

10 years contributing to congestion in Thus, Hon. Menyani proposed that, in order prisons.”72 The MCP also welcomed to attract more lawyers to work in the Legal the provision for ‘pro bono’ services Aid Department (Bureau), and in order to in the bill on the basis that “generally retain them, they should be provided with speaking, in [Malawi] legal costs could the necessary ’incentives’ and be ‘properly be classified as being exorbitant, it motivated’. This proposal was premised on the is beyond the reach of many average fact that “just bringing the [Legal Aid] Bureau in Malawians.” itself does not solve matters- we have seen for example how the Anti-Corruption Bureau has This view point was further elaborated by Hon. failed to retain lawyers”.75 Dr. Mwalwanda, who added the dimension that: In the same vein, Hon. Menyani challenged The cost of legal practitioners in Malawi is his fellow MPs, arguing that unless the extremely exorbitant..[that] even us [MPs government/Parliament were to “fix some sort cannot afford them].”73 Moreover, Hon. Menyani of percentage of the State’s criminal justice was quick to warn that “quite a number of legal budget” the problems that the Legal Aid Bill practitioners are perceived by most Malawians was to address, would not go away. He said: as being reluctant to be involved in pro bono work”. While supporting the idea for pro bono I am saying this because for a very services as “lessening the burden placed on long time in [Malawi] the budget that lawyers working in Legal Aid Department.” we use for legal aid, the ceiling (…) is K30million. I have seen that the Hon. Menyani went further in offering worrying budget has been close to K28million, statistics about the state of legal aid services in K30million for seven [consecutive] Malawi: years, things going on like that and what the K27million translates into(…) is that At the moment, unless things have government of Malawi allocates K2 per taken a dramatic change, the research capita or each and every Malawian has carried out by the Malawi Congress to use about K1.70 for legal aid of which Party revealed that there were only is not practical (…) cant’s we seriously about 16 lawyers in the Legal Aid look at issues of legal aid as being a Department to assist perhaps over 6 constitutional issue, being a human million to 10 million Malawians, our rights issue, so that we have a threshold fellow countrymen who cannot afford to that can really translate into practicable pay for private practice lawyers.”74 means of legal aid.”76

36 THE MALAWI PRE-2011 ACCESS TO JUSTICE LEGAL FRAMEWORK

The second largest opposition Party in While supporting the Bill, Hon. Reverend Parliament, the United Democratic Front Ngwira warned against “abuse” of the Legal (UDF), also applauded the introduction of the Aid Fund proposed under the bill. Citing the Legal Aid Bill. The UDF Spokesperson on Legal example of a series of abuses of deceased Matters, Hon. Muluzi, welcomed the narrowing estate funds at the Administrator General, Hon. down of the number of officials authorised to Reverend Ngwira warned that: “we absolutely grant legal aid and the removal of the Minister need to protect our people against exploitation from the list. He argued that: by the legal aid department.”80

This (…) is undesirable, the powers Hon. Nawena wondered why the Legal Aid Bill of the Minister were so wide that the was proposing ‘contributions’ towards legal aid Minister may even order the Principal from the very same poor who, within the Malawi Legal Aid advocate not to undertake Banking sector, were failing to access soft loans representation for any person in any because Banks were similarly demanding proceedings. This was extremely ‘collateral’. He lamented what might pose a undesirable. The new law on the other further challenge to the implementation of the hand proposes to expand the legal aid bill once passed into law: services so as to make justice accessible to all.”77 We are discussing here very serious matters because for years and years While welcoming the geographical extension the poor have suffered because of the of legal aid services by providing for District absence of legal aid (…) what I am Legal Aid Offices, Hon. Muluzi cautioned that seeing here is a little contradiction “what will be important, however, is to ensure because when we talked about banks that when this bill becomes law, the Ministry not helping the poor, the reason was will ensure there is mass public awareness on and still stands that banks demand the changes which have been proposed, and collateral. Give us collateral we will give the services will be available”78. This point was you a loan (…). It is not right that this echoed by Hon. Kunkuyu who went further in bill should include such demands. If saying that “ignorance will still cost us a lot. If you have no property you cannot access people are ignorant, even if we pass the bill, legal aid (…) .the poor in the village it may be of no use to the people that really must make available the very collaterals deserve the services under this bill”79. they have not been able to provide for loans.”81

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On the other hand, Hon. Chilumpha focused on running this government as a canteen. the requirement for practical implementation You are running this government as of the bill once it became law. He appealed to your own personal property. You are the Minister of Justice and Constitutional Affairs supposed to resign. The Minister of to ensure Justice should resign.”83

That in the implementation of this bill, The debate on the Legal Aid Bill was not two things should be done: The funding problematic. It was passed into law with a has got to be adequate otherwise the consensus of both sides of the house on Act will be just a deal letter on the shelf; February 2nd, 2011, and published in the Secondly, I hope that we will cut the government Gazetted on 8th April, 2011. bureaucracy involved in the decision The debate on the Legal Aid Bill however, is whether legal aid should be granted… revealing in a number of respects; Because justice delayed is justice denied.”82 Firstly, the debate demonstrates the dilemma of legal aid services in Malawi in his practical demonstration, Hon. Matola as access to justice itself remains in a (Leader of UDF in the House) almost caused state of flux. It also reflects the degree of uproar in the National Assembly, when he neglect by the government when it comes proposed that certain non-performing Ministers to the infrastructure for legal aid, since the present in the house should resign since, if they concentration of resources, and decision- were incapable of running the government, making is still a preserve of the Ministry of they could be entrusted with implementing the Justice and Constitutional Affairs at Capital Legal Aid law itself. Hon. Matola said: Hill, Lilongwe. The disproportionate imbalance in the resourcing and staffing of positions at What I am saying is also affecting the legal aid offices is sufficient evidence of lack poor of this country (…) I beg to move of government attempts at ameliorating the that the following Ministers should problem. Under such circumstances, one can resign from today (…) Minister of Justice fairly assume a total absence of moral and and Constitutional Affairs, Minister material incentives for the support staff at the of Information and Civic Education, legal aid offices. Minister of Finance, Economic Planning and Development (…) all these Ministers The crisis of legal aid is a reflection of the crisis are not capable. You are running this of the judiciary and access to justice in general, government as a hawker. You are and paints a picture of the degree of decay and

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neglect of public institutions, which are one 4.7 The Local Courts Act distinct hallmark of any democratic society. The Local Courts Act, which was debated only five days after the passing of the Legal Aid The decline and neglect of legal aid services Bill, presents a completely different story. As is consistent with the misplaced priorities of analysed below, it is difficult to appreciate that the government and its efforts to effectively it was the same members of Parliament, at decentralise the operations of public the same sitting of Parliament, who five days institutions. The debate demonstrates that earlier had passed into law, the Legal Aid Bill,84 a highly centralised state system such as and who were now debating the Local Courts Malawi’s, cannot effectively design institutions Bill. The emotions, which the Local Courts Bill that reflect the justice needs of the poor and invoked, will be analysed later. grassroots. The Local Courts Bill was also introduced and debated in the Malawi Parliament during Finally, the debate on the Legal Aid Bill the Third Meeting of the 42nd Session on demonstrates that one sure test of the February 7th, 2011.85 The Minister of Justice effectiveness of a democratic society like and Constitutional Affairs, Hon. Chaponda, Malawi is the manner in which the grassroots stated that the Local Courts Bill was prepared have access to public institutions such as legal by the Malawi Law Commission in September, aid services. 2007, following nation-wide consultations. This was in conformity with Section 110(3) of 4.6 Analysis of Potential Link the Malawi Constitution, which provides for between Legal Aid and Local the introduction of Traditional Courts or Local Courts Courts. The Minister stated that the purpose Although legal representation is generally not of the Bill was to “introduce a genre of courts available during proceedings in informal or to be named Local Courts with the primary lower courts, now that the scope of legal aid has function of dispensing familiar and affordable been expanded to include pre-trial services, justice for the ordinary Malawian” 86. This was legal advice, and legal education, these are in line with the spirit of the Constitution, which areas necessary even for clients appearing is aimed at enhancing the rights of access to before Local Courts. It would be interesting to justice for all citizens. In expounding on why it see if such a link was made during the debate was necessary to introduce Local Courts, the and passing of the Local Courts Act analysed in Minister of Justice alluded to the following: the next few paragraphs. • The Law Commission was of the view that former Traditional Courts which were

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“integrated into the High Court” in 1994 could never be replaced by Magistrate Courts “due to their differences in practice and procedure”87; • The Law Commission also observed that “ordinary Malawians residing in rural areas might be denied [access to justice] if matters including customary civil matters continued to be handled by Magistrate Courts, which were ill equipped to handle such matters”; • Local Courts would provide “timely access to justice to the rural masses” and contribute to “unclogging” the backlog of cases in various registries of the Magistrate and High Court system; • Local Courts would complement the Decentralization Policy and Local Government Act passed in 1998. The Policy and Act aim at ensuring that services are brought closer to communities. They would also help government enforce by-laws by dealing with cases under the by-laws. Local Council currently have problems managing cases arising under the by-laws;88 • Local Court would adopt simple procedures to allow for easy access; • Local Court proceedings would be conducted in the local language and apply the customary law of the local area;

Meanwhile, it will also be necessary to present a schematic analysis of the differences between the Old Traditional Courts Act and the New Local Courts Act:

40 THE MALAWI POSt-2011 ACCESS TO JUSTICE LEGAL FRAMEWORK

Areas Reviewed OLD TRADITIONAL COURTS ACT NEW LOCAL COURT ACT Jurisdiction • Unlimited in both civil and • In civil and minor criminal matters, criminal. Could try e.g. murder, criminal jurisdiction is limited in sedition, and treason. terms of type of law (customary), size and complexity of the matter, as well as geographical territory and (local) and monetary considerations. • Will not try inheritance issues, custody of children, cases of witchcraft, land disputes, and distribution of matrimonial property. Practice and • S40 empowered the Minister of • To be prepared by the Chief Justice Procedure Justice to make rules for practice and provided for in subsidiary and procedure. legislation. • Minister promulgated the • Mode of commencing proceeding Traditional Court (Procedure) vested in the Director of Public Rules. Prosecutions. Legal • S40 prohibited legal • Legal representation prohibited in Representation representation in Traditional civil matters. Courts unless the Minister of • Legal representation allowed in Justice allowed it in writing. criminal matters on the basis that it is a ‘non-derogable’ right under the Constitution. Laws to be • S12 empowered Traditional Courts • In civil matters, customary law of the Administered to administer customary law and geographical area where the court is provisions of any Act authorised by located. the Minister of Justice. • In criminal matter, only the laws included in a Schedule to the Local Courts Act. • To have regard for the Constitution and human rights. Review and • Review and supervision by an • Review and supervision by the Chief Supervision Executive officer known as Justice. Traditional Courts Commissioner under the Minister of Justice.

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Appeals • From the grass roots and all the • To the High Court and Supreme way to the National Traditional Court. Appeals Court. Enforcement of • No stand-alone provision in the • Stand-alone provision highlighting Judgments Act. Provisions were embedded in the need for effective remedies. section dealing with awards in civil • Enforcement rule to be made by the matters. Chief Justice. • Minister promulgated Traditional Courts (Enforcement of Judgments) Rules. Institutional Setup • Completely separate and parallel • Parallel to Magistrate courts but to the High court system and appeal directed to the High Court and Supreme Court.89 Supreme Court. • Courts administered by the • Courts administered by the Chief Executive through the Minister of Justice. Justice. • The Chief Justice to recruit and • Executive through the Minister of choose judicial staff to sit on the Justice chose personnel who sat Local Courts. on Traditional Courts. • Lay Persons to preside over Local • Chief presided over Traditional Courts. Courts.

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4.8 Analysis of the Local Court Bill laws in writing, either in an informal record The Type of Legal Pluralism Chosen for use by local communities, or in a statutory Broadly speaking, there are three types of form for use by state courts. Ascertainment legal pluralism. The first is where legal orders assists communities in determining their own exist in parallel to the state system and are not laws but, unlike codification, the focus is on formally recognised or state-sanctioned. Such describing (not prescribing) the principles non-state legal orders exist in every country, applied. Codification and ascertainment is used including Malawi. The second kind of legal primarily to bring legal certainty to discrete pluralism is where the state legal order is plural areas of law, such as land ownership, where such as when family and some property matters clarity may be needed for development to take are governed by different laws for different place. religious or ethnic communities. The third kind of legal pluralism is where quasi-state legal Incorporation of customary fora into the orders are established or the State incorporates state hierarchy of courts: Hybrid courts apply non-state legal orders, for example, through customary law at first instance. On appeal, the decentralisation90. The third type is the route higher courts use assessors to determine the taken by Malawi’s new Local Courts Act. The content of, and how to apply, the customary Act has been adopted by the State to provide law. Integration is usually appropriate when the a means of resolving legal disputes and customary legal system is already cooperating grievances without recourse to the formal significantly with the state. This is the option court system. In a poor country like Malawi, used by Malawi with the new Local Courts Act. the use of these mechanisms is justified on the basis of providing a vital service where Adaptation of the laws and procedures in the state capacity is weak or overburdened. But it state legal system to accommodate customary should be emphasised, that even in countries precepts: This option attempts to harness the with relatively well resourced justice systems, best features of both systems. It is best suited such systems are used to divert some cases out to a common law system, which is inherently of the formal court system in order to reduce able to adapt to new circumstances, and backlogs and costs to the State91. certainly only when the state and the judiciary are open to cooperating actively with customary Other policy options, which Malawi may have societies. used include:92 State monitoring of the decisions made Codification and ascertainment of customary by customary systems using independent laws: Codification involves recording customary accountability mechanisms, such as Human

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Rights Commissions. This policy option may Local Court creates yet another dilemma; the be appropriate in cases where the state legal question as to whether robbing traditional system is incapable of dispensing justice. authority of judicial function does not “kill the However, it does not resolve jurisdictional very essence of tradition leadership.”95 The issues, and may need to be combined with Special Law Commission considered this issue additional regulatory reforms. from two perspectives;

State regulations of customary legal systems: Firstly, the Commission was of the view that These subject customary legal systems to state from a Rule of Law perspective, oversight on a wide range of matters, including observance of human rights standards. If any courts are established and are Regulation needs to be used with restraint, and presided over by chiefs, it may result only where intervention is strictly necessary in the erosion of the independence of to ensure that customary legal systems can the Judiciary from the Executive arm of operate. Government. This will go against the spirit of the Constitution.” In essence, Malawi’s new Local Courts Act adopted a combination of most of the policy Secondly, the Commission recognised the options above since most of its provisions are practical dilemma and scenario in which attempts at adapting laws and procedures Malawi’s pluralistic legal system is set. The in the state legal system to accommodate Commission states: customary precepts. At the same time, the Chief Justice has been designated the role of The involvement of chiefs in the formal regulating, supervising and monitoring the justice sector would have an adverse functioning of the Local Courts. effect on their role in the informal dispute settlement mechanism referred However, the Local Courts Act faces the tricky to as ‘the non-state customary system dilemma of recognising the traditional justice of justice’ which has always co-existed system and walking the tightrope of aligning it with and complemented the formal with the constitution.93 The biggest problem is justice system since colonization. that the traditional leaders come from a system The Commission recognized that re- of hereditary succession, and are aligned to establishing these courts excluding the Executive arm of government.94 In theory, the Chiefs from the system will not this challenge has been dealt with by making rob chiefs of their traditional judicial provision for lay persons (not chiefs) to preside functions as is feared from some over these Local Courts. Having, done so, the quarters.”96

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The Local Courts Bill did not go down well him “goose bumps” in view of the bad history with opposition members of Parliament. In of the old Traditional Courts. Hon. Dr. Cassim order to understand further the emotion, Chilumpha went straight to the point by saying which the introduction of the Local Bill that: invoked in Parliament, it will be necessary to analyse the debate, which emerged. The main Those who oppose these courts, they Opposition Party, the Malawi Congress Party are opposing them because of the (MC, speaking through its Spokes Person history - that these courts have been on Legal Matters, Hon. Menyani, started by abused. The reason why that is the describing the memorandum to the Bill as case is because they have always been “sincere and straight forward … at face value” created by an Act of Parliament, just as it was seeking “to bring a modern version like we are doing now (…) as a country, of the notorious Traditional Courts that were we have seen what has happened in synonymous with the one party era.” 97 In the the past. Our fore-bears who sat in same vein, Hon. Uladi Mussa believed that this House championed the law that the Local Courts Bill had a “hidden agenda.”98 changed the Local Courts to Traditional Hon. Mussa then accused the Hon. Minister of Courts; championed the law that Justice and Constitution Affairs of proposing allowed these courts to try murder such “bad” legislation as a consequence of the cases; championed the law that allowed Hon. Minister living outside Malawi during the these courts to punish people who had Dr. Kamuzu Banda regime.99 committed treason. The sad thing is when you look back historically, they However, Hon. Menyani was quick to state that were the first ones to face the wrath of there were “fears” that the “proposition of these courts.”102 such a Bill like this one would want to bring in the re-emergence of an autocratic state [and On the other hand, Hon. Menyani wondered be used] to suppress and oppress the people whether the introduction of Local Courts was of Malawi.”100 Hon. Menyani also feared that “yet another vote of no confidence in [the] such a Bill may set “the nation back several judicial system”. This question was posed after decades”101. In this regard, he observed that having observed that, in addition to jurisdiction it was not “mandatory that Parliament has to in civil matters at customary law, the Local introduce Local Courts” under Section 110(3) Courts were also being given jurisdiction of the Constitution. He therefore went further in criminal matters at statutory law.103 The to suggest that it was better for Parliament expressed fear was that it would be “very “to abolish the provision [section 110(3)] all dangerous and suicidal” for Local Courts to together” since the proposed Local Courts gave be granted such jurisdiction since they may

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be subject to manipulation and abuse as was Hon. Menyani also complained about the “long the case with the former Traditional Courts. process of appeal” proposed under the Local However, Hon. Dausi challenged his fellow Courts Act. He worried about the long process Members of Parliament in stating that Local involved in appealing from the Local Court, to Courts may not necessarily be the problem - the District Appeal Structure before proceeding rather the general governance challenges. He to appeal to the High Court and then the observed that: Supreme Court of Appeal. He observed that

When Late Kamuzu Banda was arrested What this means effectively is and searched for 13 hours, there were that justice is going to be de- no Local Courts. When Kamuzu’s layed because we do not know property was expropriated, there were how the district appellate court no Local Courts. When the Honorable is going to operate because it J.Z.U Tembo was searched for 25 hours, can either be very ineffective or there were no Local Courts. When the politically influenced so as to Malawi Congress Party was snatched delay the whole appellate pro- its headquarters property, there were cess.”106 no Local Courts (…) when Minister of Justice and Constitutional Affairs Having expressed the concerns of MCP on the ordered the freezing of Late Kamuzu Local Courts Bill, Hon. Menyani nevertheless Banda’s Bank Accounts, there were no recognised the importance of the Bill, stating Local Courts.” 104 that

The main issue therefore was expressed by We cannot just block this bill in its Hon. Uladi Mussa who observed that totality. We will offer a compromise to the Honourable Minister of Justice It would have been very, very imperative and Constitutional Affairs.” In the final for the government to repeal some of analysis, as a compromise, the MCP the [old] laws, they are too archaic for proposed that “the most important this nation to adhere to. We need to thing is to leave all criminal jurisdiction repeal some of these laws as far as our in the hands of Magistrate Courts.”107 democracy is concerned; they are not in conformity with our democracy in this This compromise position was shared by other country.”105 Members of Parliament on the opposition side of the House. In this regard, Hon. Khwauli

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Msiska said “what is of contention here is Conflict between the demands of whether what is contained in the substantive customary law on the one hand, and pages of this Bill manages to address the the imperatives of human rights on intention correctly.” Hon. Msiska went further: the other. Customary law appears to be insensitive to gender equity or When you look at the First Schedule equality. Our constitution together which lists the kinds of [criminal] with international law instruments offences that such courts would have emphasizes the rights and the equality jurisdiction over, you start wondering, of persons irrespective of gender. why it is necessary for [the presiding How the Local Courts will handle this officer] to have adequate knowledge of condition or contradiction appears to be customary law because 99 per cent of unclear.”110 the kind of offences listed in the First Schedule have very little to do with In the final analysis, Hon. Muluzi proposed a customary law.”108 balancing act: firstly, that “it will be prudent to address some of the financial expectations or The United Democratic Front (UDF) constraints that [the] current court systems are Spokesperson on Legal Matters, Hon. Muluzi, experiencing at the moment,”111 and secondly, also acknowledged the importance of the that “we must take care not to introduce Local Bill, stating that: “[if] properly managed Courts at the expense of Magistrate Courts and and implemented, the introduction of Local we must take care not to introduce a new cost Courts could perhaps play a pivotal role in centre which we may not be able to afford.”112 the settlement of disputes for the majority of our people within our local communities.”109 Unlike the Legal Aid Act, the Local Court Bill However, Hon. Muluzi was quick to point had a rough and bumpy ride in Parliament. out that “people need to have faith in the Debate was so intense and would have raged institutions we are attempting to create for on if it were not curtailed by vote through a fair arbitration.” Further, Hon. Muluzi raised “division”.113 As such, its passing into law was several concerns, one being the lack of a clear not with the consensus of both sides of the definition of customary law in the Bill and no house. The opposition side of the house was systematic development of the subject matter; strongly opposed to passing the bill in its the other, the expectation of totality without adopting the proposed changes to the bill. The major contention regarded whether the Local Courts should be granted criminal jurisdiction in the form that the Bill

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proposed. Consequently, Opposition members and jurisdiction of traditional or local of the house called for a “division” in passing courts. The Commission was also made the bill, which was later rejected by the Speaker. aware that the original draft of the The Bill was passed into law on 9th February, Constitution did not include criminal 2011, and published in the government Gazette jurisdiction for traditional or local courts on 8th April, 2011. but rather that this was inserted at a later stage in the drafting process. The The whole commotion and tension in original intention was that such courts Parliament can be traced back to the dilemma, should exercise jurisdiction in civil which the Malawi Law Commission faced in matters at customary law only.”114 considering whether to recommend criminal jurisdiction for Local Courts. The Report of the How such clear views and opinions from the Law Commission states: majority of stakeholders and the general public ended up in the Law Commission Public opinion as discerned from recommending criminal jurisdiction for Local the initial consultative workshop Courts is difficult to understand. What is clear was in favour of removing criminal is that in view of the context within which the jurisdiction from Local Courts. This was Local Courts Act was passed into law, it is highly principally due to the high standards unlikely that it will lead to a smooth practical that the Constitution has set in terms implementation as analysed in later chapters of of the conduct of the criminal process this report. starting from investigations to trial. Stakeholders did not have confidence in Nonetheless, the analysis of the passage of Local Courts to live up to the standards the two new laws (Legal Aid and Local Court set by the Constitution (…) Acts) in the National Assembly gives us a lot of insights into the current state and nature of With this background in mind, the politics, democratic governance, the Rule of Commission considered whether, Law, and human rights in Malawi: given the constitutional language, it would be possible not to grant • On the one hand, opposition MPs criminal jurisdiction to Local Courts. demonstrate how astute they are over such After lengthy debate, the Commission matters of national importance. They have concluded that the wording of shown that they are neither ‘push-overs’ nor Section 110(3) is permissive and gives ‘rubber stamps’ as hitherto portrayed. They Parliament discretion on the setting up demonstrate that they can stand for the

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human rights cause and interests of the poor mechanism is often needed. As has been stated and masses (and of course, their own political already, the most significant characteristic of interests); customary dispute resolution is that it seeks • On the other hand, the debate demonstrates to deliver restorative justice, rather than how much Malawi is still very much in its punitive sanctions, in order to achieve social infancy as a country in “transition”. Perhaps reconciliation. This then, is where Malawi’s new what is even more striking is the fact that Local Court Act invited unnecessary tensions the tensions also demonstrate how deeply in its debate in Parliament. It may be argued divided Malawians are on issues and matters that, for example, giving Local Courts the relating to Malawi’s past dictatorial regime. mandate to deal with such criminal offences The trend appears to be, that such issues as “publication of false news likely to cause can flare at any time in Parliament. As such, fear and alarm in the public” and “offences without effectively dealing with the past in relation to publications, importation of history of gross human rights abuses under which is prohibited”118 is not in line with the Dr. Kamuzu Banda, Malawi can be described traditional areas of law for such courts. In any as a ‘ticking time bomb’. Malawi has opted for event, these are the type of criminal offences, a “transition without transformation”115; which provide an entry point for politicians to • This further demonstrates the high level abuse Local Courts to silence opposition and of trust and confidence which opposition criticism. Granting Local Courts powers to pass MPs have with Magistrate Courts and the a maximum aggregated prison sentence of up High Court system. This is hardly surprising 2 years further aggravates this situation119. At given that the High Court has generally been the end of the day, the manner in which the progressive in adjudicating civil and political Local Courts Act was ‘rushed’ and ‘pushed’ matters in this otherwise weak political through parliament by the Minister of Justice system.116 Most of the MPs have benefitted and Constitutional Affairs demonstrates a from such positive jurisprudence of the High ‘missed opportunity’ for the government to rally Court - especially through judicial review all key stakeholders behind implementation processes and the granting of injunctions. of the new law. Implementation prospects for the Local Courts Act are now slim since the Ordinarily, customary legal systems deal government is being perceived, perhaps rightly, principally with three areas of law117: the law as re-introducing the local courts in order to of obligations; family law; and property law use them as a tool to silence opposition and and succession. These are areas in which criticism, as was previously the case under Dr. communal conflicts frequently arise and Kamuzu Banda with traditional courts. for which an effective dispute resolution

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Pushing for the new Local Courts Bill required • Links with non-state actors are rarely seen sober analysis of what was feasible, but also by governments as a perfect solution. required a readiness to take chances when the However, having some control over non-state timing looked right. The government failed actors may be worth the government losing to realise that “pragmatic policymakers look centralised, uniform justice provision. This for policy windows that open, and use them to was indeed the case of Malawi’s initiative with create a space for moving forward to solve the the Local Courts Act; particular access to justice problems facing the • Links can raise standards on both sides: poor.”120 the state increases its understanding of local needs and knowledge, and non-state Consequently, the debate in Parliament on actors conform more to constitutional and the new Local Courts bill failed to do the most international human rights standards. This important thing - that of linking the Local was among the aims and objectives for Courts bill with the Legal Aid Act passed proposing the Local Courts Acts; just five days earlier. Such links can have the • The adaptability of local non-state structures following dimensions:121 allows them to combine with external approaches to form more than just a link, and • Can benefit both laws, benefit one law but to create an original hybrid formation. weaken the other, or benefit one law while the other sees little benefit. In the particular According to the Minister of Justice and case of Malawi, such links were perceived as Constitutional Affairs, and the Report of the benefitting the formal justice system more Special Law Commission, Malawi Parliament’s than the informal justice system; attempts at actively developing links between • Links can be initiated by both sides, but the state and non-state systems was meant to state usually makes the first move. In the case offer the opportunity of judiciary oversight, of Malawi, links were initiated by the state according to constitutional standards and through the Malawi Law Commission’s review within an affordable national budget. Indeed, of the old Traditional Courts Act; the Malawi Judiciary was also to benefit from • Justice actors may also seek partners who can customary systems, which already enjoy local supplement their resources (their economic, legitimacy, ownership, sustainability, and cultural, or social capital). Indeed, the Malawi effective procedures.122 As such, initiating Government intended to reduce the backlogs and strengthening such links, which promise in the formal justice system through Local mutual enhancement could be beneficial. Courts which were perceived to offer more accessible and affordable justice familiar to Ideally, Malawi’s legal reform which the poor people’s concept of justice; contemplated links and engagement of both

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the state and customary justice systems, should have carefully navigated a delicate balance between several competing interests and many complex issues such as; the governance and political context, power structures, cultural practices, ethnic or tribal identities, attitudes toward customary justice systems, and sensitivities heightened after 70 years of colonial rule and 30 years of dictatorship under Dr. Kamuzu Banda. The poor choice of policy options, that might have been used to achieve such a balance is what challenged the passing of the Local Courts Bill - and is sure to pose as an even greater challenge to the implementation of the Local Courts Act.

51 Chapter 5

THE SHIFT TOWARDS ENGAGEMENT WITH INFORMAL JUSTICE SYSTEMS – STAKEHOLDER PERSPECTIVES

[T]hose who have criticized [informal development goals. In terms of traditional justice forums] as being too reform, they are often seen as overly traditional to promote development are localized and complex, with the often too simplistic in their arguments. diversity of systems making more They are bound up in the traditional- generalized initiatives too difficult. modern dichotomy in which ‘traditional’ They are often seen as undemocratic is equated with ‘backward’ and ‘modern’ - lacking democratic accountability with ‘advanced’. Development can thus mechanisms to induce reform - and only occur within a ‘modern’ framework. lacking in legal legitimacy, authority The main problem with this equation and enforceability.”124 is that it is based on a very static view of tradition. It ignores the fact that Meanwhile, other commentators observe that traditions are often ‘invented’ and hence, very ‘modern’ in content.”123 There is a temptation, particularly in common law societies, to equate the In terms of the use of, and view upon, traditional judiciary with the entire legal system, systems, it has been argued that and to look to judges to serve as the primary guardians of probity and Development organizations have fairness. Yet the judiciary is but a part not only tended to ignore traditional of the entire legal system, and both the systems, they have had a propensity scope of its powers and its political role to view them in fairly negative terms. vary considerably from jurisdiction to Traditional systems are often seen as jurisdiction (…) For these reasons, there archaic, ‘backward’, or rigid practices can be no one-size-fits-all analysis that are not amenable to modernization, of the role of judges in ameliorating efficient market relations, or broader poverty.”125

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In this regard, Tackling negative perceptions towards IJS is particularly challenging because it demands There is a general tendency for access behavioural change to reverse deeply ingrained to justice reform (both multilateral habits, attitudes, and ways of doing business. and bilateral) to focus on programmes Shifting attitudes toward excluded groups supporting formal mechanisms is crucial but takes time.129 However, it is of justice, especially processes of encouraging that there is gradual change in adjudication through the judiciary. This thinking. In this regard, DFID recognises that is understandable from a governance there may be ‘myths’ and ‘folklore’ about IJS. perspective. However, from access to DFID states that justice perspectives, it is essential that common parameters of assessment be Opinions and beliefs about NSJS applied to both formal and informal systems that are widely held may not justice mechanisms.”126 have a solid basis. Some assumptions may hold true in certain contexts, Indeed, where Customary Law has been but not in others. A research strategy recognised and its adjudication transferred to should recognize and respond to this. the formal courts, this “has in certain respects Dispelling a prevalent but erroneous caused Customary Law to lose its original force myth about NSJS systems may be a although provision was made for Customary strategic output in itself.”130 Law ‘expert witnesses’ to assist courts. In fact (…) it can be said that the customary system has As such, the negative trend does appear to be been reduced into a secondary source of law for slowly shifting, mainly because, as we shall the formal courts.” Against the backdrop of this see later in this report, reforms to the judiciary development, the formal system in general, and the formal justice system are either not certainly views Customary Law as subordinate, working or are too slow. Consequently, DFID if not so much in the same fashion as their has a specific policy on working with non- colonial predecessors did.127 state justice systems. The World Bank Justice for the Poor programme also works with Alarmed by such developments, others informal justice systems through their Justice also argue that “given the prevalence and for the Poor programme. In this Chapter, we importance of customary legal systems in most analyse the shifting attitudes and perceptions developing countries in the world, the relative of the development practitioners, justice lack of attention to the workings - and effects - stakeholders, and Malawian authorities towards of these systems by development practitioners engagement with IJS.131 We also assess the is striking, even if not surprising.”128 implications that such changing views have on

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the future of IJS and access to justice for the observed that “Informal justice systems poor. are the cornerstone of accessing justice for the majority of the population in 5.1 The United Nations Development many countries, and recourse to the Programme (UNDP) formal system is only contemplated, if at all, as a last resort.”132 In 2006, UNDP acknowledged that By 2005, UNDP’s support to the justice sector Justice sector reform is a rapidly had almost doubled within six years expanding area. However informal justice systems still remain largely From 53 countries reporting neglected by UNDP and most multi- programming on human rights or the lateral and bi-lateral development justice sector in 2000 to 95 in 2005. assistance. This is somewhat surprising Support to informal justice systems as the poor and disadvantaged are [had] increased slightly, but remain[ed] infrequent users of the informal justice minimal in comparison to formal justice system and UNDP’s specific niche lies systems; in 2005, 80 countries reported in ensuring access to justice for those support to the formal justice system, who are poor and disadvantaged … seven reported support to informal Given the prevalence of these systems justice systems and eight reported and the fact that so many people access support to some type of alternative them for their justice needs, the support dispute resolution or mediation to informal justice systems is very mechanisms.” limited. Most development assistance is channelled to what is referred to as the ‘rule of law’ approach. This type of approach has generally not focused on issues of accessibility, has tended to focus on institutions rather than people, has been top-down, has generally not been successful in improving access to justice for poor and disadvantaged populations, and has not been cognizant of where people actually go to seek justice.” Further, UNDP

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Source: UNDP, Doing Justice, pp. 11. Note: The ‘some degree’ category refers to reported support to mediation or ADR mechanisms, but the reports do not explicitly state that they work with informal or informal justice systems.

UNDP was then quick to recognise that; operations of informal justice systems. It is of course very important to take There is no denying that support to all concerns seriously. Any initiatives enhance the rule of law and improve undertaken should work towards the functioning of the formal justice gradually enhancing the quality of institutions is crucial. However dispute resolution and addressing the given the slow pace of reform, it is weaknesses faced by informal justice increasingly recognized that technical systems. Such initiatives should be part top-down fixes alone will not suffice of a broader, holistic access to justice to improve access to justice. Despite strategy, which focuses on achieving the challenges [facing IJS],.engaging the broader goal of enhancing access with informal justice systems is to justice by working with both formal necessary for enhancing access to institutions and informal justice justice for the poor and disadvantaged. systems.”133 Ignoring such systems will not change problematic practices present in the

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Hence, UNDP’s approach to justice sector institutions and put their trust into reform focuses on strengthening the the informal institutions. In many independence and integrity of both formal and cases, informal systems not only informal justice systems, making both more reflect prevailing community norms responsive and more effective in meeting the and values, but the state systems needs of justice for all - especially the poor and lack legitimacy; they are seen as marginalized.”134 mechanisms of control and coercion used by oppressive regimes. To become Marking a change in its approach, UNDP states efficient in overcoming barriers for that; people to access justice, strategies and reforms need to be designed in We cannot ignore informal justice and for the specific local contexts systems if we are true to our human and the process must be driven by rights-based approach. Ignoring national actors – both claim holders informal justice systems will not change and duty bearers. Therefore, UNDP in the problematic practices, which may be particular, and the broader development present in their operations. Existence community in general, needs, as a first of these systems cannot be overlooked. step, to assess the existing capacity We need to develop strategies to take gaps for the claim holders (in this advantage of the benefits of informal case ordinary citizens) to be able to systems while encouraging appropriate claim their rights, and duty bearers reforms.”135 (state and non-state officials bearing responsibility for delivering justice UNDP then committed itself services) to be able to meet their obligations - this includes working with To using a human rights-based informal justice actors.”136 approach in its programming, guided by international human rights 5.2 Danida standards and principles. If we apply In recent years, Danida has stated its objects the human rights based approach as clearly as ”enabling access to justice for the to the development of an access to poor and marginalized through an increased justice strategy in a given country, we focus on informal justice systems.”137 In this will likely find that poor people and regard, Danish support for informal justice disadvantaged communities show systems is “provided as an integrated part of ambivalence towards the formal support to justice sector reform.”

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However, Danida has also been quick to 5.3 UK’s Department for provide technical guidance and inspiration International Development (DFID) for programming choices to its Danish DFID’s policy on safety, security, and access to development cooperation staff in various justice (SSAJ) recognises the importance of countries around the globe through its Danida “How to Notes”.138 In essence; Traditional and informal systems as complements to formal state systems. Denmark will only support informal It notes that non-state justice and systems of justice that respect human security systems may need reform rights, or that are willing and able in order to become fairer and more to change norms and practices that effective.”140 DIFD’s Briefing Notes then infringe on human rights. Support proceeds to provide practical guidance should: to DFID in-country staff on how to work with non-state systems using evidence • Promote equal access to justice from past interventions and research. In for all by improving the quality of guiding its staff, DFID stresses that “in dispute resolution within the available general, actions should aim to identify systems and their compliance with and build on the strengths of the international human rights norms and systems, and address those aspects that standards; have a negative effect on poor people’s • Be provided as an integrated part safety and access to justice. Particular of support to broader, nationally attention should be given to whether owned justice sector reform that NSJS systems respect individual encompasses both state and non-state rights.”141 institutions and actors; • Build on the strengths of the systems DFID further notes that “engagement with and seek to reform their weaknesses NSJS systems is not a neutral, technical by, for example, building positive activity, but one that raises broader governance linkages between formal and informal issues.. [As] there is often no separation justice systems; between NSJS systems and local governance • Empower the users of both formal structures. Intervention may thus have an and informal systems to know and impact on existing power relations at both claim their rights and to demand local and national levels.”142 However, DFID is accountability from the different guided by its overall goal to which all its SSAJ justice systems.”139 programs contribute, that of “reducing poverty

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in its widest sense.” Consistent with a growing recognises that “rules and systems that international consensus, “DFID views poverty as most affect the poor frequently fall outside embracing such problems as powerlessness and of formal justice structures, and that efforts vulnerability, and not just material deprivation. that focus solely on formal institutions, while Given that in many developing countries NSJS valuable, can exclude large segments of the handle more disputes than do the courts and population.”145 The J4P approach focuses on other state institutions, they hold considerable the demand side of justice reform, seeking significance for SSAJ and poverty alleviation.”143 to understand the perspective of the poor and marginalised. It considers the role that 5.4 The World Bank local value systems play in determining how Prior to 2005, the scenario had been similar people perceive and interact with justice, the at the World Bank. While the World Bank had formal and informal institutions, the locally been increasing its efforts in promoting justice developed, and externally-influenced. It also sector reform in the countries where it was analyses the ways in which local power and working, yet none of these projects had been authority structures are perceived, and gain dealing explicitly with informal justice systems, legitimacy. Consequently, the J4P has helped despite their predominance in many of the the World Bank to appreciate that “building countries involved. Of the 78 assessments of an understanding that local traditions and legal and justice systems undertaken by the realities, as well as resources that affect Bank since 1994, many mentioned informal decisions about whether and where to pursue justice systems in the countries looked at, justice, can enable more effective targeting but none explored the systems in detail or and programming for poor and marginalized examined links between local level systems populations.”146 and state regimes.144 5.5 Malawian Authorities and The World Bank has undergone a fundamental Stakeholders shift in thinking with a view to promoting pro- Further, resistance to IJS may come from poor access to justice. The World Bank currently government officials, court officers, and others supports a Justice for the Poor (J4P) research who interpret and administer laws, statutes, program which is a multi-country study and regulations. Officials who gain from these that seeks to develop an empirically-based policies and legal instruments may sabotage understanding of how the poor or excluded reform.147 Their attitudes and perceptions are navigate through local justice systems, in therefore of utmost importance. In this regard, order to inform and evaluate innovative efforts the attitudes of lawyers, judges, magistrates, at local-level justice reform. The program and government or ministry officials towards

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IJS systems - especially at higher levels - may 5.6 Summing Up be openly hostile or at best indifferent. Despite It is evident that many criticisms of IJS by legal governments’ inability to offer effective and professionals fault these justice systems for not accessible justice services for the majority being like the courts. For instance, pointing out of citizens’ justice authorities, donors, and a lack of evidentiary rules, a lack of reference international organisations have been wary of to relevant laws and a lack of understanding supporting local non-state justice providers. of the principle of separation between judicial This reluctance seems to be based on an and executive powers. Some commentators ideological commitment to ‘state-building’. have characterised this as a ‘traditional lawyer’s DFID proffers the following as other possible response’ steeped in refusal to accept that lay diverse reasons for the ‘hostile attitudes’ or people can exercise judicial power.149 On the ‘indifference’148: other hand, it is important to note that such attitudes may be waning. For example, the • Many lawyers and judges are concerned recent Local Courts of Malawi, to be presided about human rights abuses in IJS systems over by lay persons, with civil and limited and believe they should be abolished; criminal jurisdiction, were proposed by a • Judges may be reluctant to acknowledge the Special Law Commission composed entirely weaknesses of the formal system; of 12 senior judicial officers (5 Judges and 7 • Lawyers may see the growth of informal lawyers).150 Nonetheless, attitudes of rural dispute resolution mechanisms as a threat to magistrates and groups engaged in community their incomes; outreach activities, such as NGO and paralegal • Those who work within the formal system may trainings, are more positive. Lower courts criticise IJS systems precisely for not being inevitably have more contact with the reality like formal courts with formalised rules of of the active role played by community-based procedures; systems. As such, it would be more meaningful • Government officials may criticize donor to focus any efforts at the lower levels of the support to traditional systems as obstructing judiciary.151 modernisation; • Potential political controversies over restoring So far, the shift in thinking towards greater or strengthening “traditional” forms of engagement with IJS has been premised on authority; a broad range of research and pilot projects. • Competition over the national budget and These have informed current policy as reflected foreign aid can lead judiciaries and Ministries in the various ‘Practice Notes’, ‘How-to Notes’, to view proposed support to IJS systems as a and ‘Briefing Notes’ as guides for programme threat to their own funding. staff. There is a general consensus among

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such policy guides that “actions should aim to identify and build on the strengths of the [IJS], and address those aspects that have a negative effect on poor people’s safety and access to justice. [And that] particular attention should be given to whether [IJS] systems respect individual rights.” If this is the generally agreed approach, it is surprising that efforts to work generally with IJS beyond research, pilot projects, and policy guidance towards practical programme implementation, are rare among the available extensive and overwhelming literature on IJS. Since the ‘test of the pudding is in the eating’, it remains to be seen as to how much of the high level policy guidance will translate not only into programme design at various country levels, but more importantly, into implementation. As the World Bank acknowledges, for any meaningful impact in an IJS sector, programmes need to be designed with long-term commitments spanning 15 years or more.152 Therefore, one can only assume that the next wave of research projects will focus on assessments of performance, and impacts of such innovative programmes’ engagement with IJS.

60 Chapter 6

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This chapter aims to provide an overview of no gains at all. This is not surprising. local experiences of the poor in accessing Given the low initial coverage in many of justice. This, together with the conclusions these countries, the expansion favoured and reflections drawn from previous sections, wealthier households. This does not should lead us into generating policy mean, however, that expanding access recommendations that respond to the Malawian when overall levels of service provision reality in the realm of access to justice and the are low is bad for equity. On the contrary Rule of Law. This Chapter argues for a more - better to expand access in this case attainable aspiration. It begins with a candid than to focus on upgrading quality, confrontation of our failures: our unwillingness which would benefit only the few who to take access to justice seriously at a already have access.”153 conceptual, doctrinal, political, or professional levels. And it concludes with a challenge to do Malawian law is drafted with the intent to better. The objective is to explore the outlines conform to various international human of a more manageable commitment, namely rights conventions and documents. Many of adequate access to justice, and some strategies these laws are conducive in promoting equal for pushing Malawi in that direction. access to justice. However, there are still major setbacks in achieving such equality in The World Bank acknowledges that; practice. Government in relation to the justice sector, particularly the Magistrate Courts, plays whether expanding general access only a peripheral role in solving disputes. It is benefits the poor depends on initial apparent that government involvement may levels of coverage. In many African in itself not be a guarantee of equal access to countries, overall access rates improved justice. Communities prefer to solve conflicts over the last decade, but the bottom 40 on the basis of their understanding of justice, percent of the population registered which reflects their ideas and values and social

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realities rather than relying on state institutions. 6.2 Inadequate Capacities and Various factors make the poor unequal users Institutional Barriers of justice. This Chapter will highlight the gaps As shown above, the institutional hurdles that between policy and practice in terms of access poor people face, arise from justice systems to justice and justice administration. Below that lack capacity and do not respond to poor follows some of the key dilemmas. people’s particular justice needs, including real accessibility in particular. Despite decades of 6.1 Concerns on Lack of Adherence donor-supported projects to build courtrooms to Human Rights Norms and train the police and judiciary in Malawi, In promoting equal access to justice, informal the reach of the formal system is very limited. justice systems may not necessarily present Social and institutional barriers deny the poor a better alternative. They are often based on - especially women and children - access to different concepts of justice, which may not legal redress. Gender discriminatory attitudes comply with the concept of individual rights among service providers are compounded by on which international human rights standards the lack of capacity of many justice systems. are based. Informal systems are also subject The high cost of litigation, language barriers to asymmetric power hierarchies, which can and the geographical distance of many courts, prevent the poor from accessing justice. This are just a few examples of the capacity deficits has a detrimental effect in poor people’s efforts that prevent the poor from coming forward to realise their rights. In the case of women, and pursuing their claims through formal legal they have to take up their grievances with channels. These problems result in very high the informal systems, most of which can be levels of under-reporting and attrition, which dominated by male authorities. means that only a fraction of cases that are initiated in the formal system ever results in Therefore, donors and the Government should a court decision or in a just outcome for the support reforms aimed at strengthening IJS’ poor. However, governments and civil society linkages with the judiciary so as to open up can respond by reforming justice services and avenues for the application of human rights by creating new models that are specifically principles to the operation of non-formal tailored to poor people’s justice needs. justice systems. As such, people’s access to Changes in the organisational mandates, higher courts that are vested with power to procedures, and cultures of justice sector uphold constitutional rights should not be service providers are needed in order to make unnecessarily hampered - rather, the process them more responsive and accountable to poor should be strengthened. people.154

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6.3 Lack of Will and Discipline for While the Malawi Government should be Practical Implementation applauded for pursuing the adoption of laws The inclusion of the poor through international promoting access to justice, practitioners conventions and domestic legal reform in and policy makers need to accompany such justice processes is illusory. The official justice law reform with activities that promote the system contains progressive laws for the application of the laws and their appreciation implementation of concepts of individual rights. by society. This holds particularly true for most However, the poor’s experiences with the law, Malawian communities, which are based on shows a typical dilemma: even progressive laws strong indigenous social systems that may are meaningless if they are disconnected from be at odds with the norms of the official law social realities.155 This disconnect is especially and human rights. It is important to infuse strong where local understanding of justice is knowledge of formal laws into informal based on a communal and restorative approach. processes. Informal processes are legitimate in For example, laws promoting gender equity are the eyes of the community, they are affordable good, but they cannot be simply applied and and they are nearby and easy to access. While enforced if not supported by society. With regard making use of these advantages, awareness to other grievances or conflicts, informal justice of official laws and principles can be infused systems come with a number of advantages for into these informal processes. Increasing communities since they are closely intertwined the knowledge of official rights in local with local value systems and social realities. In communities can have ample effect on informal theft or assault cases, for example, they can processes. Ways also need to be identified, deliver solutions in a time- and cost-efficient way to address male bias in both systems, and to that also complies with local understandings ensure equal treatment for women in all justice of how the conflict should be solved. However, systems. with regard to women’s grievances, only some features of the informal systems are As the Commission on Legal Empowerment for supportive in fostering gender equality, others the poor also observes, contradict the concepts of individual rights. While international and domestic instruments Reforming the law on paper is not are important in poor peoples’ empowerment, enough to change how the poor access to justice practitioners and policy makers experience it day to day. Even the need to place equal emphasis on fostering best laws are mere paper tigers if the practical implementation of laws, and to poor people cannot use the justice emphasise opportunities for increased equality system to give them teeth. Even the in informal systems. best regulations do not help the poor

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if the institutions enforcing them are The above situation if further aggravated by the ineffective, corrupt, or captured by realisation that, as Professor Wiseman Chirwa elites. It is therefore vitally important to observes: reform public institutions and remove the legal and administrative barriers [What] the country lacks is not that prevent the poor from securing law (although there are significant their rights and interests.”156 shortcomings that need focus), but disciplined implementation and Realisation of the full potential of the access to leadership to command compliance justice reform ultimately requires establishing with existing rules. The loose attitude more open, inclusive, and accountable toward rules evidenced in the fiscal institutions across the political, economic, and sphere has spread to the political judicial systems. Nonetheless, “everything realm. In crucial ways, the rule of law does not need to happen at once. Access to and the constitution have been eroded justice by the poor can start with changes in as political forces put short-term some policy areas. As the poor get empowered expediency ahead of principle.”159 legally and gain knowledge, assets, and power, they will be in a stronger position to call for Further, UNDP states: additional institutional and legal reforms.”157 The policy conclusion from this, however, Where adequate constitutional or legal should not be that: protection exists and risks of setbacks are not high, law enforcement—not law- Nothing can be done until exhaustive making—deserves priority. Expanding efforts have been made to ‘understand’ legislation when enacted laws are not local legal systems so that they can be implemented will be inefficient and made more ‘compatible’ with formal/ an ineffective use of resources. It can state systems; doing so would be erode public confidence in the legal hugely time consuming, and unlikely system”160. to fundamentally alter the balance of power or overcome the pervasive Nonetheless, it is important to recognise that information asymmetries that exists while it will often make sense to anchor the between local communities and legal access to justice for the poor agenda in existing professionals.”158 development processes, such as the Malawi Growth and Development Strategy, access to justice for the poor should not hide behind any

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processes that are stalled or dysfunctional. Efforts to increase the profession’s public Broad political coalitions for pro-poor change, service commitments have met with both that involve leaders from across societies, are moral and practical objections. As a matter of needed to galvanise and sustain reforms, and principle, some lawyers insist that compulsory to prevent such reforms from being diverted, ‘charity’ is a contradiction in terms. From diluted, or delayed.161 their perspective, requiring service would undermine its moral significance and infringe 6.4 Negative Attitudes Among the lawyers’ own rights. They argue that if equal Legal Profession and Justice justice under law is a societal value, then Stakeholders society as a whole should bear its cost. For The official laws can be difficult to apply example, the poor have fundamental needs for when they are not socially acknowledged, food and medical care, but we do not require contextualised, or received, and therefore have grocers or physicians to donate their help in minimal impact on poor peoples’ lives. meeting those needs. Why should lawyers’ responsibilities be greater? There are several An example that emphasises the negative problems with this claim, beginning with its attitudes, is the new Legal Aid Act’s proposed assumption that pro bono service is “charity” provision for Legal Aid through pro bono - such assistance is not simply a philanthropic services, legal advice, and legal education exercise; it is also a professional responsibility. by law students, paralegals, and civil society Lawyers have special powers and special organisations. While access to justice for the privileges, and this entails special obligations, poor is a favourite theme in bar rhetoric it is a be they based on ethical or moral grounds. low priority in reform agendas. The gap between rhetoric and reality is particularly apparent in the While pragmatic objections to pro bono views of legal professionals as follows: obligations are more plausible, ultimately they are no more convincing. It is true, as critics note, Pro bono programs involving the legal that having reluctant lawyers engage in poverty profession’s most affluent members reflect a law, is an expensive way of providing what may particularly dispiriting distance between the sometimes be inadequate services. However, bar’s idealised image and actual practices. the question should always be: “compared While law is among the nation’s highest paying to what?” For the poor, some assistance will occupations, many of its top earners are making be better than none - which is their current only nominal contributions to pro bono work.162 alternative in the Malawi setting.

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Another area in which the bar’s record law.165 There are a number of explanations for concerning access to justice for the poor this attitude, including the profound influence has been particularly troubling involves of the 1994 Constitution, which, albeit still unrepresented parties. The profession has both in only nascent form, is causing judges and resisted efforts to provide non-lawyer assistance magistrates to become more attuned to the for such parties, and thus has tolerated demands of constitutional fidelity. Because exploitation of their vulnerability by opponents. of these attitudes, the party seeking to secure The Malawi bar’s opposition to unauthorised its application must put customary law to the practice of law by lay competitors or paralegals, strictest proof. A competent court must then has implications for access to justice. Bar decide on the existence of a customary law, leaders have long insisted that such prohibitions after the party seeking to secure its application are motivated solely by concerns to protect the has adduced evidence of its existence. Formal public rather than the profession. But no experts courts have used this inherent power to share this view as most research finds that lay pronounce or reject customary law according and paralegal specialists can effectively provide to their whims.166 Given the extensive criminal routine services where legal needs are greatest. jurisdiction conferred on Local Courts, it could For many of these needs, it has been said that also be feared that presiding officers might retaining a lawyer is like “hir[ing] a surgeon be drawn to practice more of such negative to pierce an ear.”163 Other countries generally attitudes in their effort to apply the written law. permit non-lawyers to give legal advice and to provide assistance on routine matters, As the above examples suggest, the bar’s and no evidence suggests that these lay or commitment to equal justice for the poor paralegal specialists are inadequate. A case in remains largely rhetorical. Most attorneys point involves Great Britain’s Citizen’s Advice support the concept, but only as long as it does Bureaus,164 which rely on non-lawyer volunteers not put their own interests at risk. However, to provide effective low-cost assistance in some what legal professionals overlook, is the fact ten million matters yearly. that these projects would offer welcome opportunities to develop new skills, obtain In some cases, formal courts have in the more trial experience, and enhance their past promoted negative interpretations of contacts and reputations in the community. customary law. In so doing, the formal system Such opportunities would prove more has also effectively made customary law a rewarding, personally and professionally, secondary source of law through the legal than much of what now occupies their time. positivism of magistrates and judges, who often Moreover, there is broader value in exposing all excluded customary law in favour of written members of the bar to how the justice system

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functions, or fails to function, at all levels Hence, mobilising allies and supportive for the poor. Such exposure may eventually stakeholders, and finding ways to manage the build support for reform and increase the critical ones, is fundamental to the success accountability of lower level Local Courts who of any legal reform effort. However, success may be tempted to cut procedural corners. A is most reliably won when one delivers similar point could be made about requiring measurable and meaningful benefits to the pro bono service by law students. Law schools beneficiaries.168 do not impose such requirements and most students graduate without pro bono legal 6.5 Inadequate Budgetary experience. Linking such law schools and Provisions student law societies to pro bono services Governmental legal services budgets are under the Legal Aid Act would help bridge such capped at ludicrously low levels, making gaps in legal practice. effective legal assistance for most low-income litigants a statistical impossibility. As Dr. Edge However, we must be conscious of the fact that Kanyongolo observes: in some cases, legal reform may also create policy ‘losers’. “Professionals may also have a In general, government funding for stake in maintaining the disempowering status the justice sector is unsatisfactory. quo, such as lawyers who would lose out if Most operations of institutions in laws were translated into everyday language the sector are directly funded by or if inexpensive means of conflict resolution donors, including DFID, the European spread.”167 Policymakers should endeavour Union, the United States Agency to ensure that different interests can be for International Development, the negotiated to meet the needs of every side. Norwegian Agency for International Otherwise, plenty of potential for confrontation Development, the Danish Institute for remains as long as important stakeholders Human Rights and others, rather than believe others’ gains come at their expense. from the general government budget. In relation to central government Where possible, officials who resist such funding to the sector, approved budgets change should be given positive incentives are often much lower than estimated to support legal reform policies instead of expenditures; funds may not be resisting them, for example, by offering released from the Treasury according judicial officers promotions, interesting new to approved budgets; and funds may responsibilities, training opportunities, or other be released irregularly and in greatly perquisites if they help with implementation. varying amounts. The inadequate

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funding for the sector is compounded required under the laws. As rightly argued by by inequitable distribution of resources MP Hon. Menyani, the government’s hiring within particular institutions. For of 16 lawyers to provide legal aid service to a example, in determining its internal population of 13 million Malawians, does not distribution of budgetary resources, demonstrate any serious attempt at expanding the administration of the judiciary access to justice to the poor. In the same vein, tends to unduly favour the High Court allocating approximately Mk2 for every Malawi and Supreme Court of Appeal at the to access legal aid is not practical, bearing the expense of subordinate courts.”169 importance of access to justice for the poor.170

Consequently, millions of Malawians lack 6.6 Limited Choices Available for any access to the justice system, let alone the Poor equal access. In particular, the cost of legal Poor people’s preference for non-state justice professional services remain unaffordable systems may reflect the lack of choices to the average Malawian, contributing to available to them, especially women and the continued popularity of informal justice children, because of the social and institutional systems as a practical forum for dispute obstacles they face when approaching the resolution, especially in rural areas. formal state system. Understanding Malawi as a legally plural society would be an Most government and donor-sponsored efforts important starting point for looking at poor to expand legal services to the poor, emphasise people’s access to justice beyond the limited access to the formal legal system. Hence, a reach of the formal state system. Indeed, significant fraction of legal aid resources are at its 35th session in June, 2006, the United targeted at subsidising lawyers or reducing Nations Committee on the Elimination of costs associated with using the formal court Discrimination against Women recommended system. But as we have shown, many poor that “[Malawi] ensures the constitutionality of people tend to rely on informal or customary the customary courts, and that their rulings justice systems. are not discriminatory against women” and expressed concern about “the prevalence of Every effort should be made to avoid a patriarchal ideology with firmly entrenched implementation failure of the new Legal Aid stereotypes and the persistence of deep-rooted Act and Local Courts Act due to inadequate cultural norms, customs and traditions” that resourcing by government and failure to pay discriminate against women and constitute remuneration to the members sitting on serious obstacles to women’s enjoyment of the Legal Aid Board and Local Courts, as is their human rights.171 It is encouraging that the

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Malawi government, donors, and international Progressive laws are therefore meaningless organisations are becoming more engaged if they are disconnected from social reality. In with legal pluralism, in particular by looking such cases, their application can even serve to justice institutions outside the formal as a deterrent for the community to further system to provide faster, more efficient, and engage with the formal system. Approaches more legitimate solutions for poor people in to addressing these shortcomings will need to situations where formal justice systems are focus on the whole community, and will need weak. This recognition of the reality of legal to increase access to the formal system, while pluralism is welcome and long overdue. at the same time also engaging with informal systems in order to make them less biased and 6.7 Differences in Concepts, ensuring their conformity with constitutional Processes and Procedures and international human rights principles. Differences between local concepts of Only a gradual, simultaneous approach to justice, and the concepts underlying the both formal and informal systems, and a official law is another important factor that steady support for social change, can help prevents local communities from deciding overcome such hurdles by seeking to harness to address their grievances in formal courts. the respective strengths of customary and state Local systems focus on the maintenance legal systems. of social harmony while the formal system focuses on the individual perpetrator. Local 6.8 Challenges in Reforming conflict resolution is predominantly based on Plural Legal Systems the understanding of communal rather than Plural legal systems, both state-recognised and individual responsibility for misconduct. It is non-state systems, can be difficult to reform for further acknowledged, that: “traditional leaders three interrelated reasons: are likely to be closest to the people and to understand custom and the factual basis of First, where these systems are recognised, as is disputes. They may present the greatest chance the case with Malawi’s new Local Courts Act, it of having settlements carried out in practice. In can place the state’s seal of approval on them, some contexts, they may enjoy a high level of making them even harder to reform. trust.”172 It is therefore not surprising that local communities and local level authorities prefer Second, plural legal systems are intertwined that many grievances or conflicts be tried under with the politics of identity, which can the informal systems. make reform efforts highly contentious. As acknowledged by UNDP:

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Informal justice systems often reflect majority poor, and rarely reflect women’s and local social norms and are closely children’s interests174. linked to the local community. Community members often have a Ultimately, there would have been much sense of ownership towards their greater prospects not only for the smooth respective system. Informal justice passing of the Local Court Bill in Parliament, actors have local legitimacy and but also for its eventual implementation if: authority that is not always afforded to formal operators. Informal justice • The links were designed to promote and systems tend to work well where the advance the skills set of officials in both the community is relatively homogenous, formal and informal justice systems; linguistically, culturally and is bound • Officials from both formal and informal by ties of mutual dependency. In this justice systems increasingly respected and setting one often defines one’s identity trusted one another and gained local support; as being inextricably part of networks: • Links can be established through an appeal familial networks, cultural networks, process by which decisions rendered by religious networks and a strong sense of non-state justice can be appealed to the bounded communities.”173 state justice system. This would reduce inconsistencies and poor performance. Third, because plural legal systems are complex, in practical terms they are harder Some commentators have also advanced the to reform. When the Malawi Government argument that recognises non-state and customary laws, which may be discriminatory but are also Imposing formal mechanisms on evolving, it should take particular care that it communities without regard for the does not effectively ‘freeze’ what were fluid local level processes and informal legal systems that could have been amenable to systems may not only be ineffectual, progressive reform. Further, Local Courts have but can actually create major problems. provisions for consulting experts/assessors First, the failure to recognise different to ascertain the ‘correct’ interpretation of systems of understanding may in itself certain customary laws. The most obvious be discriminatory or exclusionary, experts, such as religious scholars, community and hence inequitable. Second, there leaders, elders, or academics, usually belong are often very good reasons why to dominant social groups who may not many people chose to use informal necessarily reflect the views of the silent or customary systems which should

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be considered and understood. Third, • Professional associations sympathetic to there is ample evidence that ignoring or the plight of the excluded. The Malawi Law trying to stamp out customary practices Society and the Paralegal Resource Centre is not working, and in some cases is (PARECE - a law student body based at the having serious negative implications. Law Faculty in Zomba), for example, support Fourth, ignoring traditional systems legal assistance for the indigents in Malawi. and believing that top-down reform strategies will eventually change 6.9 Opportunities for Further practice at the local level may mean that Interventions on-going discriminatory practices and The Government of Malawi has been the oppression of marginalised groups implementing a Rule of Law and Justice, in the local context goes unchallenged. Law Reform Programme for approximately Finally, focusing purely on state 10 years. This programme integrates a large regimes and access to formal systems in number of governance and justice reform some ways assumes that such systems activities, funded by several donors, under one can be made accessible to all, while umbrella. One of the programmes’ objectives clearly even in the most developed is improving access to justice. The programme countries this is not the case.”175 actively pursues input from civil society and is particularly interested in supplementing It is also important to realise that its current knowledge base with qualitative “empowerment strategies depend on the research. Complementary to this effort, the beneficiary stakeholders choosing to go along. Office of the President has initiated significant If the poor resist a change, the best-intended work on justice under the DFID funded policy will do little good.”176 The principal allies Malawi Safety, Security and Access to Justice of the poor are: (MaSSAJ) Programme. A National Steering Committee was established and charged with • Pro-poor community associations and civil the coordination and harmonisation of safety, society activists. They can be mobilised for security and justice interventions, and has reform and become strong allies. Some may assisted in proposing a policy framework for be local social action or advocacy groups, MaSSAJ, which includes the integration of such as the Malawi Centre for Advice and local value systems and a linkage between Education on Rights (Malawi CARER), whose formal and informal justice systems. Local mission is to defend poor people in court and and international NGOs have also been active expand their rights. in human rights and justice reform efforts in Malawi. Until 2011, when the Bingu government

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started consolidating his grip on power, Malawi government’s governance and human rights had a strong and thriving civil society which performance as well as declining funds for often produced independent and informative budgetary support, implementation of both work, and was able to hold the government the Legal Aid and Local Court Acts will face an accountable. The richness of the country’s uphill battle. To begin with, the government skilled and experienced NGOs provides an needs to rally opposition political parties, as excellent opportunity for the Judiciary and well as Malawi civil society, firmly behind its Legal Aid Board to form partnerships that can reform agenda. One way of doing this, is by further enrich implementation of the legal and demonstrating a political will to introduce only policy reform efforts. those reforms which serve the national interest, as opposed to the government’s narrow Legal reformers should therefore consider political agenda of entrenching its hold on targeting legal aid resources and legal power. Meanwhile, the government’s expressed service providers who can help poor people intention to review and amend unpopular laws deal with both the customary and the formal as well as old and archaic laws is a move in state system. The Paralegal Resource the right direction.177 Further, the government Institute (PASI) programme and the Catholic needs to rally the international development Commission for Justice and Peace (CCJP) partners behind its reform agenda. As a starting Community Mediation programme are good point, improving its diplomatic relations with examples in this regard. Paralegals under these Malawi’s long time traditional donors such DFID programmes possess basic training in formal cannot be overemphasised since, until recently, law, but they are also drawn from the local DIFD was Malawi’s biggest donor for several community and are familiar with local traditions years. and customary law. They can therefore assist clients in both the informal and formal justice systems. They can also monitor abuses, and are better positioned to advise clients on when they should take a dispute to the formal state system.

6.10 Summing Up The current political prospects for expanding access to justice for the poor in Malawi are, to say the least, less than encouraging. At a time of growing scepticism towards the Bingu

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Chapter 7

COMPARATIVE CASE STUDIES: LESSONS TO BE LEARNED FROM OTHER SELECT INFORMAL JUSTICE SYSTEMS

It is important to draw lessons from previous time, have approached the challenge of access development experiences in other jurisdictions. to justice by the poor. These experiences However, at the outset, the most important are only partly comparatively analysed or lesson is that the “best practice” is always understood, both in terms of their key attributes based on the national context and the needs and their outcomes. Our literature review of the specific disadvantaged groups. Since reveals that there has been no systematic situations vary from country to country, there effort to compare, share or synthesise are no templates that identify generic entry lessons learned across regional or global points for access to justice programming. experience in this area. We therefore examine In order to choose an entry point, we must a representative selection of such experiences analyse the situation in relevant sectors in order to identify promising reform paths and and identify catalytic actors and institutions. approaches. Ultimately, we seek to use these Needs assessments are a good entry point.178 experiences to influence real outcomes on the Because certain processes do not necessarily ground in Malawi. work across societies in exactly the same ways, policymakers must be watchful and The focus will be south-south lessons from experimental.179 The challenge is to learn from our neighbours in the Southern African other experiences (in particular, those from Region. South-south learning is said to offer other developing countries that have overcome “promise for effective capacity development similar challenges), while providing customised and best-fit approaches because it can draw solutions for particular situations. In this on knowledge from countries that have more chapter, we undertake a review of existing recently experienced transitions or share initiatives in other countries. regional political, economic, or socio-cultural characteristics.”180 In this regard, we have There are both similarities and differences in selected Zambia due to its close proximity as the way countries around the world, and over well as similarities in legal systems and political

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history - both Malawi and Zambia having and addressing them, listening to the been former British Colonies. The Republic of poor, and learning by doing. In this regard, South Africa has been chosen, mainly due to UNDP’s experience to date offers a number the country’s innovative approaches to legal of principles for action on access to justice. reforms - approaches that have placed South Among them is the lesson that: Africa on the map as a pacesetter in the region. Uganda has been chosen bearing in mind that Policies and programmes need to so far, Malawi has been accustomed to drawing ensure an explicit focus on the poor lessons from Uganda, due to the country’s and disadvantaged. The concerns of innovative approaches to justice programming. the disadvantaged need to be included The ‘chain-linked’ programme is a case in point. in programme conception and design Before delving into specific lessons from these from the outset so that they do not fall countries, we begin by highlighting general through the cracks of justice reform. lessons to be learnt across the board. People’s perceptions of justice, the obstacles they face and the ways they 7.1 General Lessons address them need to be understood. If There is revealing comparative experience justice programming does not produce from countries that have carried out and results for the most disadvantaged, we implemented pro-poor legal and access to run the risk of widening existing gaps in justice reforms. Below, evidence from across access to justice.”181 Africa is analysed, with a view to what works and what does not, as well as why and how. Whatever type of reform is chosen, it should On this basis, promising approaches involving place be placed in the context of society’s governments, civil-society organisations, and unique past and its readiness to accept change. innovative social movements are set out. These can be modified and applied to the Malawi To kick-start a change as controversial and setting. At the outset, the key lessons include: deep-seated as the pro-poor access to justice - an approach that threatens many The most common mistakes are to vested interests - the positive role of national underestimate the impediments to political leadership and the judiciary cannot implementation and to not foresee unintended be overstated. Pursuing a particular policy, negative consequences for the poor. such as expanding access to justice for the poor, requires a handful of leaders and judicial Success, on the other hand, invariably officers who agree on what the problem is and involves understanding the impediments how to solve it. Some of these individuals may

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emerge as ‘policy champions’ who drive reform villages, the coordination and enforcement forward by marshalling a broader coalition for efforts have also gone as far as being change within government, and by overcoming enforced by ostracising villagers (and in some objections and obstacles.182 cases entire villages), that refuse to fully participate.185 Some states have tried to integrate traditional systems into wider legal and regulatory A comparative research by the International frameworks, often with little success. For Council on Human Rights Policy, highlights example, South Africa’s 1996 democratic the failings of donor approaches to date.186 constitution explicitly recognises customary The report of the council has set out a strategic law. Many other countries in sub-Saharan approach, which includes (among others) the Africa have also made attempts to recognise need to: customary tenure and customary marriage arrangements within their state laws. It is • Start from the beneficiary perspective; important to note, however, that in countries • Adopt a rights based approach; where customary systems are formally • Give priority to the needs of poor, vulnerable, recognised, in practice these systems generally and marginalised groups by enhancing their continue to operate independently of the state access to justice. system, sometimes in a relationship marked by uneasy tensions with prevailing formal justice 7.2 Other African Jurisdictions- system.183 Zambia, Republic of South Africa, Uganda Other studies suggest that those traditional systems, which have been integrated 7.2.1 Zambia into the state legal system, have been The judicial system in Zambia is comprised relatively successful due to their procedural of the Supreme Court, the High Court, the resemblance to traditional mechanisms. Industrial Relations Court, the Subordinate The relative informality of such tribunals was Courts, and the Local Courts. Local Courts play seen as a positive attribute. On the other an important part in the settlement of disputes hand, overly technical procedures and the among the majority of the population. incomprehensibility of formal court decisions are some of the reasons for distrusting such The original jurisdiction of the Local Courts courts.184 While one of the most effective tools was customary law. However, the courts have has been the widespread cooperation and developed no clear definition of customary coordination across a substantial number of law, nor has there been any systematic

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development of this subject. There has been and decision-making are preserves of the a conflict between the demands of customary central administration in Lusaka, leading to an law on the one hand, and the imperatives of absence of moral and material incentives for human rights on the other. Customary law the judicial and support staff at the Local Court tends to be insensitive to gender equity while level. modern constitutional, and international law instruments emphasise the rights and equality The challenges facing the Local Courts reflect of all persons, irrespective of gender. the challenges of the judiciary as a whole. The decline and marginalisation is consistent Local Courts are renowned for their quick with misplaced priorities in the government dispensation of justice. This has a positive as administration, as well as with the failure of the well as a negative connotation. It is well known government to de-concentrate and decentralise that justice delayed is justice denied. On the the operations of public institutions. Clearly, other hand, it has been argued that the ”’fast the Zambia scenario presents the lesson food justice’ currently dispensed in the local that a highly centralised state system cannot courts leave many consumers troubled.”187 effectively design institutions, which reflect the In the urban areas, particularly in Lusaka and needs of the grassroots. Kabwe, customary law is increasingly becoming a myth. The picture that emerges is that the 7.2.2 South Africa Local Courts have become institutions for The coexistence of various official state laws in resolving community disputes. The guiding South Africa began as early as the 1830s when principle in these cases is simple logic and chiefs in Cape Colony were granted authority common sense. to enforce indigenous law (subject to review by a colonial official).188 At the end of the The Local Courts provide a valuable guide on apartheid era there were approximately 800 the independence of the judiciary. The clear officially recognised traditional communities lesson is that judicial officers should not only and traditional leaders, 12,000 headmen, and be independent from the manipulation of the 12 kings. Since 1994, South Africa has worked executive branch, but should be sufficiently towards bringing traditional systems into the secure in material needs and resources so as state framework. Traditional institutions and not to fall victim to corruption. Local Courts laws are all officially recognised in the 1996 face a particular dilemma as customary law constitution. After a long political process, the remains in a state of flux as a result of a national Traditional Leadership and Governance degree of neglect by the government of the Framework Act was promulgated in 2004, infrastructure of the Local Courts. Resources setting out the roles and responsibilities of

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different levels of traditional leaders and property ownership, and child custody. While institutions, and their relationships to the South African laws have not been implemented different levels of government. perfectly, and customary gender discrimination is still a pervasive problem, these experiments While the constitutional and administrative still suggest that it is possible to enact reform recognition of customary law was celebrated by built around a political compromise: formal many, there clearly are difficulties. Therefore, recognition of customary law in exchange for South Africa offers useful examples of recent the rejection of certain customary norms that cases where the state has recognised the are against human rights principles of non- legitimacy of customary law up to a point, but discrimination and gender equality. has required that customary systems change to respect human rights. Customary practices Another lesson from the South African have generally been criticised as incompatible experience, is that these sorts of reform with rights in the constitution and in the new strategies cannot be imposed immediately South African Bill of Rights, especially with from the top down. Where cultural practices the equal rights and status of women. For and discriminatory attitudes are deeply example, in 2005, of 800 traditional leaders entrenched, successful legislative reform recognised by the state in South Africa, only requires sustained consultation, lobbying, one was female. In an attempt to deal with this, and political organising efforts. Further, in the state issued a regulation in early 2005 that some cases, the pursuit of gender equity female participation must be at 30 percent by goals might need to be informed by pragmatic the end of the year, but there is no consensus considerations, and it might be better to on how this might be achieved. Recognising pursue a “gradual reform strategy” that the difficult task of effectively integrating the starts by targeting only the most extreme different systems, the South African model forms of gender discrimination, and then adopted a “progressive alignment”189 with the progressively expanding the scope of this constitution approach. anti-discrimination principle. In this regard, while the implementation strategy will vary South African NGOs also successfully from country to country, the lesson here lobbied for the passage of a ‘Recognition is that targeted interventions to eliminate of Customary Marriages Act’ that formally discriminatory practices - particularly gender- recognised marriages concluded in accordance based discrimination - should be a prerequisite of customary law, but only if customary law for widespread recognition or acceptance of provided for equality of husband and wife in customary or informal justice systems.190 terms of status, decision making authority,

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7.2.3 Uganda Ministry of Local Government jointly supervise In the next few paragraphs, we present a the LCCs.194 Case Study of Uganda’s Local Council Courts (LCCs). The aim is to draw lessons from the In matters of customary law, people can experiences of Uganda in implementing such now choose to take their civil matters to the informal justice systems. customary tribunal, or to the formal court system, as both LCCs and the magistrates Local Council Courts (LCCs) were reintroduced courts have unlimited first instance jurisdiction in 1986 when the National Resistance in matters of customary law. However, this Movement (NRM), engaged in armed choice does not exist in all cases since struggle against the government, set up the magisterial areas are not always accessible. The Resistance Committee Councils and Courts LCCs’ jurisdiction is limited to civil cases and at the village level. LCCs start at village level minor criminal cases.195 LCCs may make orders where the elected village Executive Committee of reconciliation, declarations, compensation,196 (LC I) constitutes itself into a court to hear apology, caution, attachment, and sale as well disputes that arise between individuals in the as issue fines for infringement of by-laws.197 In community. Following this is the LC II court matters relating to children, LCCs make orders at parish level, and then the LC III court at the for guidance and remand in custody. LCCs have sub-county level. LCC members (Councillors) special jurisdiction in criminal matters over who serve on the lowest tier (LC I) are directly children for the offences of affray, common elected, while those serving at higher levels assault, causing actual bodily harm, theft, are elected by an electoral college.191 There are trespass, and malicious damage to property.198 altogether 953 LC III Courts, 5,225 LC II Courts and 44,402 LC I Courts in Uganda. The courts The situation in Uganda is that, in effect, are therefore physically accessible, even in the “formal and customary systems are often rural areas, which are still inaccessible to the so intertwined that it is often difficult- nearly formal justice institutions.192 impossible- to meaningfully distinguish between the two.”199 In practice though, poor These courts were later renamed Local Council people are more likely to use customary Courts (LCCs).193 LCCs, which were initially set tribunals, as they are unable to afford to take up where formal courts were absent, are now their matters to the formal judiciary. Lawyers officially incorporated into the lower court are not allowed to appear in LCCs and this also system with the right to appeal to Magistrate reduces the cost of these tribunals. Courts. LCCs also carry out local government functions. The Ministry of Justice and the

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One of the most important distinguishing and promotion of harmonious community factors of LCCs is that from their origin, they relations. However, LCC’s popularity is slowly were mandated to have women serving on waning as they are increasingly characterised the tribunals. Gender balance is still required by partisanship and partiality. The lesson here for LCCs, with the law stipulating a 30% is that while representation may be a necessary representation of women for LCC I. LCCs requirement, it may not be a sufficient factor in are constituted when 5 of the 8 members of establishing legitimacy.201 This also opens up the committee are present to hear a dispute. the broader question: when a government takes Where the quorum is not filled, the committee it upon itself to ‘invent’, adapt or reform justice may co-opt one of the members of the local systems in parallel to the formal judiciary, how government committee of the same area to sit can problems associated with lack of legitimacy as a member of the court. The courts therefore be avoided or minimised? While LCCs have may sit regularly and are, in most cases, not legitimacy in law through the LCC Act 2006, the bogged down by the failure to constitute question is whether they are legitimate among quorum, as is the case with other Tribunals. the people. The procedures in LCCs are simplified and the hearing is informal, conducted in the LCCs are also caught between applying indigenous languages of the people. The customary law, which they were set up to do, records are kept in the same language. and following the written law - most importantly However, their failure to keep records is one of the Constitution - which applies to everyone, the well-known shortfalls of these Courts.200 even to people subject to Customary Law.202

In addition, suits in LCCs may be instituted The area, in which this conflict is greatest, is in verbally by stating the nature of the claim to the relation to provisions regarding the status of Chairperson of the Council who then puts it into women, since some customary laws go against writing. human rights norms. Despite clear concepts enshrined in the 1995 Constitution, the breach The LCC courts initially enjoyed a measure in practice is in some cases striking, as is the of legitimacy largely due to their reputation absence of a grounded understanding of the for delivering speedy and affordable justice. precise manner in which these concepts should They are generally commended for being be translated on the ground.203 This challenge accessible, quick in delivering justice, using offers us two dimensions in understanding simple procedures and familiar language, the problem in terms of gaps between law allowing for broader community participation, and practice. While customary law is partly the and being oriented towards reconciliation problem, since the law offers good protection,

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the bigger problem is the gap between law and relation to how its institutions approach access practice. to justice issues, as well as how it captures the public interest and stimulates demand for such Further, some LCC courts are perceived by changes at all levels.205 the public as corrupt and subject to abuse by powerful officials. This is not surprising since LCCs are considered to be a part of the local government system. Some Councillors are even perceived as accountable to their informal networks such as ‘drinking companions’.204 Some of these concerns are being addressed by incorporating the reform of the LCC courts into the overall national strategic plan for judicial reform.

7.3 Summing Up From the various African case studies, there are both similarities and differences in the way countries have approached and worked with informal justice systems. However, these experiences are only partly understood, both in terms of their key attributes and their outcomes. Furthermore, there has been no systematic effort to compare or synthesise lessons learned across regional experiences in this area. As such, one of the research agendas for the future should be to examine a representative selection of such experiences in order to identify promising reform paths, practices and tools. Ultimately, countries like Malawi should seek to use these experiences to influence real outcomes on the ground. Nonetheless, the major lesson to be learnt from our analysis is that, in order to succeed, Malawi must introduce fundamental changes in

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GENERAL CONCLUSIONS AND RECOMMENDATIONS

8.1 General Conclusions the passing the 2011 Legal Aid and Local The preceding chapters of this paper should Courts Acts should serve to remind us of the serve to illustrate that Malawi can, and must, do challenges that still stand in the way. more in its efforts to expand access to justice for the poor. In this regard, Malawi’s greatest In terms of what still stands in Malawi’s way challenge lies in persuading politicians, the in expanding access to justice for the poor, judicial profession and the general public to this paper has highlighted several dilemmas, share this view. More education, consultations, and below we summarise the key challenges. participation and research needs to be Having preferred and adopted, in chapter 2, encouraged, and the focus should be on a human rights framework for advancing our what passes for justice among the poor. The analysis on the question of expanding access legal profession, law schools, paralegals to justice for the poor, the key challenges and civil society organisations have a unique below have similarly been grouped under ‘duty opportunity and a corresponding obligation, bearer’ and ‘rights holder’ challenges: to ensure that issues concerning access to justice occupy a central place in their curricula Duty Bearer Challenges and programmes, and that pro bono activity While the concept of access to justice has plays a central role in law students’ educational been framed in a number of international experience, as well as in the legal profession’s and regional human rights instruments to practice. As a nation, Malawi should strictly which Malawi is a party, and is entrenched in adhere to its unique and transformative Malawi’s Constitution (1994), what still lacks Constitution and thus aspire for an ideal that is ‘disciplined implementation’. Thus, as the ‘denial of justice on account of poverty shall paper has shown, access to justice for the poor forever be made impossible in Malawi.’ That remains an elusive and ‘implausible ideal’ as ideal should remain Malawi’s aspiration, ‘rhetoric far outlines reality’; and occasions like the debates leading to

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Lack of political will to formulate and sector, compounded by negative attitudes implement the necessary enabling law and towards informal justice systems that magnify policy appears to top the list of barriers to the negative attributes of such systems; expanding access to justice for the poor. The comparative analysis of the recent Rights Holder Challenges parliamentary debate leading to the passing Lack of knowledge and awareness of rights of the new Legal Aid and Local Courts among the majority of Malawi’s poor appears to Acts in February 2011 which this paper has be the main barrier to accessing and claiming presented, demonstrates how such political rights by the poor. and governance challenges lead to ‘missed opportunities’ for poor peoples’ expanded The lack of awareness is compounded by the access to justice; general high levels of poverty among the majority of Malawians, which means that most The lack of political will is further demonstrated of the legal services are out of their reach. by the inadequate levels of resources (human, Consequently, the poor have little choice but financial etc.) allocated to the justice sector in to access justice through the informal justice general, and to legal aid services and informal systems, which are regarded not only as justice systems in particular. As the paper geographically more proximate, but also, more has shown, the levels of resource provision importantly, offer familiar concepts of justice in are ‘capped at such ridiculously low levels both process and outcomes. that it makes implementation a statistical impossibility’. The paper has also shown that having gone through ‘70 years of colonial rule immediately Negative and hypocritical attitudes among key followed by 30 years of dictatorship under policy makers, legal professionals, and donors Dr. Kamuzu Banda’, Malawians have come to towards both the informal justice systems and perceive state justice institutions as closely concept of access to justice for the poor are associated with colonial and authoritarian other key barriers. Having highlighted shifting domination. Consequently, Malawians have attitudes and perceptions among such key taken to a ‘culture of suffering in silence’ justice stakeholders, the paper argues that not leading to low levels of case reporting and to enough is being done to transform recent well trusting ‘their own local chiefs’ with dispute intended policy directives into programme resolution. implementation. This is largely due to deeply entrenched perceptions that ‘formal justice Perhaps most importantly, the ‘culture of systems’ comprise the sum total of the justice suffering in silence’ has a more worrying

82 GENERAL CONCLUSIONS AND RECOMMENDATIONS

consequence as it presents the poor with the disputes, with the guiding principles being challenge of ‘lack of demand for accountability’ simple logic and common sense. from their authorities and leaders whom they have put in power. The implication of this is that, Uganda: as an example, the majority poor Malawians • The dilemma of interpretation of customary may not even question their members of law in the context of additional jurisdiction parliament for the ‘missed opportunity’ in for applying written law. The lesson here debating the Local Court Bill in parliament. is that there is the danger of looking down upon customary law as being ‘inferior’ While all the above may be challenges when compared to written law. However, that lay in Malawi’s way towards expanding the dilemma is that Uganda’s Local Council access to justice for the poor, they are not Courts (LCCs) did not have the necessary insurmountable. The paper has demonstrated capacity to interpret and apply written law; that there are ‘revealing and valuable lessons’ • The lesson that, in order to promote women which Malawi could learn from other related representation in the bodies presiding jurisdictions within the African region and over LCCs, there is a need for adopting beyond. Key lessons include: affirmative approaches to doing so - including adoption of clearly agreed quotas of women Zambia: representation in membership of the LCCs; • While the Local Courts provide a valuable • The lesson that even though LCCs may be guide to the independence of the judiciary, legitimate in law, they may not necessarily the major lesson is that judicial officers be legitimate in the eyes of the people. Such should not only be independent from the legitimacy, in the case of Uganda’s LCCs was manipulation of the executive branch, but eroded by public perceptions that LCCs were should also be sufficiently secure in material corrupt and were partisan. needs and resources so as not to fall victim to corruption; South Africa: • The Zambia scenario presents another lesson • The lesson that, in tackling deeply entrenched that a highly centralised state system cannot cultural issues such as gender, there is a effectively design institutions which reflect need for adopting a ‘gradual reform agenda’ the justice needs of the grassroots; grounded in continuous ‘consultations, • Zambia provides a further lesson that in lobbying and political organizing’. In this urban areas, customary law is increasingly regard, South Africa adopted a ‘progressive becoming a myth as the Local Courts have alignment’ approach to bringing negative become institutions for resolving community cultural practices into alignment with

83 GENERAL CONCLUSIONS AND RECOMMENDATIONS

requirements of the Constitution and human In the final analysis, the paper concludes that rights. given the context and manner in which the Legal Aid and Local Courts Bills were passed General Lessons Common to all Jurisdictions: into law, prospects for their implementation • The common mistake of ‘underestimating are ‘less than encouraging’. To say the least, impediments’ to expanding access to justice the government’s move of the Local Courts Bill for the poor; in Parliament, in particular, was badly timed • The need to promote active ‘listening’ and and poorly executed. It failed to read the ‘signs ‘learning by doing’; of the times’ and therefore ‘missed a golden • The need for policies and programmes in opportunity’ to adopt a law aimed at expanding the justice sector to have an explicit focus access to justice for the poor. In so doing, the on the poor, in the conception, design, government did not endear itself well with the implementation, monitoring and evaluation poor - the majority of whom supported the phases; adoption of the Local Courts Act, but were wary • The need to gain an understanding of a of granting criminal jurisdiction to Local Courts particular society’s past history, and assess its given the history of their predecessors, the ‘readiness to accept change’; Traditional Courts. One can safely say that this • The need to harness the positive role of was not only a ‘missed opportunity’ but it was political leadership and judicial leadership in also the government’s disregard and betrayal order to nurture ‘policy champions’ who can of the trust and confidence Malawians placed promote the ‘expanding access to justice for in the Bingu administration, by virtue of Section the poor’ cause. 12206 of the Republic of Malawi Constitution 1994. In its review of current literature on the subject of access to justice and informal justice systems, 8.2 General Recommendations the paper observes that generally, there is no In view of the foregoing analysis, a set of systemic effort to synthesise and compare recommendations are presented below lessons from similar jurisdictions at a regional for serious consideration by justice sector level nor across the globe. It comes as no stakeholders, in order to move this important surprise, therefore, that Malawi’s recent efforts to process forward while recognising that propose, debate, and pass the new Local Courts “innovative projects and reform proposals are Act in Parliament was met with hurdles, which not in short supply.”207 could have been anticipated and surmounted, if lessons as the ones outlined above were systematically shared among countries.

84 GENERAL CONCLUSIONS AND RECOMMENDATIONS

Legal Empowerment and Awareness Raising Capacity Building: among the population of Malawi: • Assisting engagement of IJS providers in • Education of justice users through general participatory standard setting processes civic education and information provision, inspired by human rights standards; education on national laws, provision of legal • Supporting “self-statement” attempts at education materials and guidelines, legal assisting communities to document their literacy, and training in different techniques of own substantive customary law, with a view dispute resolution; to promoting awareness, consistency, and • Providing increased linkages between the democratic processes among communities; population and legal aid providers to promote • Supporting selection of adjudicators by free person-to-person legal assistance, promoting requirements as to qualifications advice, and education from volunteer lawyers and procedures for selection, discipline and (pro bono), law students, paralegals, and removal of IJS adjudicators in order to secure NGOs. adequate qualifications, gender balance and open, transparent, and accountable selection Advocacy for Social/Legal Justice with processes; decision makers: • Supporting efforts by the Legal Aid Board • Support consultative and participatory aimed at expanding the availability of pro advocacy processes on possible reforms to bono legal services, legal advice, and legal the Local Courts Act, in order to either remove education services, and expanding access to or limit criminal jurisdiction to minor statutory justice for indigent clients; offences appropriate for Local Courts; • Supporting education of IJS adjudicators • Support civil society advocacy campaigns through: aimed at removing the major legislative · Compulsory education in national laws and/ obstacles which impede access to or human rights standards; justice, particularly for the poor and other · Provision of legal materials and guidelines; marginalised social groups, and which aim · Training in techniques for documentation of at harmonising such legislation with the case outcomes; Constitution and international human rights · Training in different techniques of dispute standards; resolution. • Facilitating the inclusion of development • Supporting the development and programming focusing on supporting implementation of guidelines for: advocacy for improved resource allocations to · The Malawi Judiciary and the Chief Justice legal aid and informal justice services. (for effective regulation, supervision and guidance of Local Courts);

85 GENERAL CONCLUSIONS AND RECOMMENDATIONS

· The Legal Aid Board (for promotion of Pro- rule of law in Malawi, not as some bono, legal education and legal advice work intellectual justification for defeatism, by Lawyers, Law Students, Paralegals and but as a necessary first step to devising Civil Society Organisations); realistic means for removing obstacles · Local Courts (for promotion of Principles to reform.”208 for Democratic Accountability, Respect for human rights of women, children and other vulnerable groups etc.).

Proposed Research Agenda: • Promoting systemic efforts to synthesise and compare/share lessons on IJS from similar jurisdictions at African regional level and across the globe, and feeding the Malawi experience into the dialogue such as through international academic networking in this field.

As a final point, we agree with the observation once made by Dr. Edge Kanyongolo that;

Most of the recommendations in this paper have also been made before; there are many strategies and plans that lie on the shelves of many institutions involved in the [justice] sector, including government ministries and departments, non-governmental organizations and donors. The most important issue is therefore how to ensure that these recommendations are implemented in practice. This will require a frank discussion of the political, economic and social challenges context of justice and the

86 LITERATURE

literature

The following is a list of Literature, which in Malawi, in African Human Rights Law formed the core basis for our review and Journal, Vol. 5, 2005 at p.148. analysis - supplemented by literature sourced at DIHR (such as Library sources, internet International Development Law Organization, sources, e-documents and documents from Towards Customary Legal Empowerment- fellow researchers); Inception Paper, 2010.

B Van Rooij, Bringing Justice to the Poor: Open Society Foundation, Malawi- Justice Bottom-Up Legal Development Cooperation, Sector and the Rule of Law, Review by AfrMap Working Paper (2009) available at . Report written and Researched by Professor Fidelis Edge Kanyongolo, 2006. Commission on Legal Empowerment of the Poor, Making the Law Work for Everyone, Siri Gloppen and Fidelis Edge Kanyongolo, Volume 1, 2008. Courts and the Poor in Malawi: Economic Marginalization, Vulnerability and the Law, in Commission on Legal Empowerment of the the International Journal of Constitutional Law, Poor, Making the Law Work for Everyone, Vol 5, 2007. Volume 2, 2008. Danish Institute for Human Rights, Department for International Development, (forthcoming), Study on Informal Justice Briefing: Non-state Justice and Security Systems. 2011, UNDP, UNICEF and UNIFEM. Systems, May 2004. DFID, (2004), Non-state justice and security Joseph DeGariele and Jeff Handmaker, Justice systems, Briefing. Available at: http://www. for the People: Strengthening Primary Justice gsdrc.org/docs/open/SSAJ101.pdf

87 LITERATURE

ICHRP, (2009), Legal Pluralism and Human Minneh Kane- Reassessing Customary Law Rights. Available at: www.ichrp.org/en/ Systems as Vehicle for Providing Access to projects/135?theme=10. Justice for The Poor year.

UNDP, (2006), Doing justice: how informal UNDP Practice Note- 2004 justice systems can contribute. Available at: http://www.undp.org/oslocentre/docs07/ Leila Chirayath, Caroline Sage and Michael DoingJusticeEwaWojkowska130307.pdf Woolcock: Customary Law and Policy Reform: Engaging with the Plurality of Justice Systems. UNIFEM, (2008/2009), Progress of the World’s Women 2008/2009. Who answers to McQuoid-Mason (2006), Assessment of Legal women? Gender and Accountability. Aid in the Criminal Justice System in Malawi. Centre for Socio-Legal Studies. University of World Bank, (2008), Justice for the Poor Kwazulu-Natal. Programme. Available at: http://siteresources. worldbank.org/INTJUSFORPOOR/Resources/ Tikambenji Malera, G. (2005), The Socio- J4POverviewMay2008. Legal Status of Malawian Women in Politics: Opportunities and Challenges. The Danish UNDP, PHI (02) 007 Judicial Reform: Institute for Human Right. Strengthening Access to Justice by the Disadvantaged UNDP Malawi (2008), A legal system that Michael Anderson, Access to Justice and Legal supports basic human rights: Promoting Process Making Legal Institutions Responsive Access to Justice. to Poor People in LDCs, Paper for discussion at WDR Meeting 16-17 August 1999, p.6, 9. Chijere Chirwa, W. (2006), Report on Political Participation, Second Draft. Governance Bruce Baker: Linking State and Non-State Monitoring Project Malawi. Security and Justice. 2010 Commission on Legal Empowerment of the DFID Malawi (2003), Malawi Safety, Security Poor: Making the Law Work for Everyone, Vol. 1. and Access to Justice Programme Output-to- Purpose Review. Leila Chirayath, Caroline Sage and Michael Woolcock : Customary Law and Policy Reform: Edge Kanyongolo, F. (2006), Malawi Justice Engaging with the Plurality of Justice System. Sector and the Rule of Law, a Discussion Paper. World Bank: Word Development Report 2006. Open Society Initiative for Southern Africa.

88 LITERATURE

Schärf W., Kaunda D. and Banda C. (2002), Open Society Foundation: Malawi Justice Access to Justice for the Poor of Malawi? An Sector and the Rule of Law- A Discussion Appraisal of access to Justice provided to Paper, 2006. the poor of Malawi by the Lower Subordinate Courts and the Customary Justice Forums. Desmond Mudala Kaunda: State Obligations for Past Human Rights Violations of Former Minneh Kane et al (2005), Reassessing Regimes- the Case of Malawi, Essex University Customary Law Systems as a vehicle for (1995). providing Equitable Access to Justice for the Poor. Arusha Conference, “New Frontiers of Emmi Hypponen- Legal Reform - the Key Social Policy” – December. to Social Change? Experiences from Rural Zambia. Chirayath, L. et al. (2005), Customary Law and Policy Reform: Engaging with the Plurality Afronet Report (1998): The Dilemma of Local of Justice Systems. Background paper for the Courts in Zambia. World Development Report 2006: Equity and Development. Access to Justice Legal Framework: Pre 2011: Penal Reform International (2000), Access The Traditional Courts Act (Chapter 3.03 of the to Justice in Sub-Saharan Africa: the Role of Laws of Malawi) 1962 Tradition and Informal Justice Systems. The Legal Aid Act (Chapter 4.01 of the Laws of Malawi) 1964 Andrew Nyirenda, Thomas Trier Hansen and The Chiefs Act (Chapter 22.03 of the Laws of Desmond Kaunda: A Comparative Analysis of Malawi) 1967 the Human Rights Chapter under the Malawi The Courts Act (Chapter 3.02 of the Laws of Constitution in an International Perspective. Malawi) 1969 Republic of Malawi Constitution 1995 Ayesha Kadwani Dias and Gita Honwana Welch: Justice for the Poor- Perspectives on Post 2011: Accelerating Access, 2009 (UNDP; Oxford). • Documents capturing voices and views of Malawians on the old legal framework and Francesco Francioni: Access to Justice as a advancing suggestions for changes: Human Right, 2007 (Oxford University Press). Law Commission Report No. 17 on the Review of the Traditional Courts Act, and the Proposed Draft Traditional Courts Bill, September 2007.

89 LITERATURE

Report of the Law Commission on the Review http://www1.worldbank.org/publicsector/ of the Legal Aid Act, and the Proposed Draft legal/access.htm Legal Aid Bill. http://www.dfid.gov.uk/left_bar.htm http://www.adb.org/Law/default.asp • Documents capturing the National Assembly http://www.kentlaw.edu/jwc/access.html debate for change of the legal framework: http://www.judgelink.org/a2j Malawi National Assembly 42nd Session Daily http://www.accesstojustice.org Debates on the Draft Local Courts and Legal http://www.cejamericas.org Aid Bills (captured in the following Hansards): http://www.access-to-justice.org 3rd Meeting, Serial No.019, 19th day, Thursday 9th http://www.accessjustice.ca December, 2010 4th Meeting, Serial No.002, 2nd day, Tuesday, 1st Institutional: February, 2011 ABA-UNDP International Legal Resource 4th Meeting, Serial No.003, 3rd day, Wednesday, Centre, the ABA-UNDP International Legal 2nd February, 2011 Resource Centre “ILRC”, website can be 4th Meeting, Serial No.006, 6th day, Monday, 7th accessed at www.abanet.org/intlaw/ilrc. February, 2011 4th Meeting, Serial No.002, 7th day, Tuesday, 8th USAID, www.usaid.gov, has worked on similar February, 2011 issues around the world. They recently 4th Meeting, Serial No.002, 8th day, Wednesday, published a good ’Handbook on Promoting 9th February, 2011 Judicial Independence and Impartiality (http://www.usaid.gov/democracy/dgtpindx. • The New Access to Justice Legal Framework html#pnacm007), which includes some case as passed and gazetted by the National studies. Assembly The Legal Aid Act No. 7 of 2011, published in International Development Law Institute (www. the gazette on 8th April, 2011 idli.org), among others, has experience in The Local Courts Act No. 9 of 2011, published in training judges. the gazette on 8th April, 2011 Law and Judicial Reform: Websites: Law and judicial reform in post conflict Justice Website Resources: situations: A case study on West Bank Gaza http://www.undp.org/governance/justice.htm, http://www4.worldbank.org/legal/ljr_01/doc/ http://www4.worldbank.org/legal/leglr/ Ierley.pdf access.html

90 LITERATURE

Challenges facing legal and judicial reform in post conflict environment: case study from Rwanda and Sierra Leone. http://www4. worldbank.org/legal/ljr_01/doc/Mburu.pdf

Legal and judicial reform http://www4. worldbank.org/legal/leglr/

91 Notes

Introduction courts to competently handle customary civil matters is a further factor to warrant 1 Siri Gloppen and Fidelis Edge Kanyongolo, re-introduction of these courts.” (emphasis Courts and the Poor in Malawi: Economic added). Marginalization, Vulnerability and the Law, 3 See section 2.0 of this Research Report- in the International Journal of Constitutional Analysis of the Access to Justice Concept Law, Vol 5, 2007 at p.259. at the International Level- for an elaborate 2 Malawi Law Commission, Report of the Law discussion on our adopted definitions and Commission on the Review of the Traditional meanings of such key terms as the “poor”, Courts Act, September 2007 at p.13. While “pro-poor”, “access to justice” etc. deliberating on the issue as to whether 4 Courts and the Poor in Malawi: Economic “geography” is a key determining factor Marginalization, Vulnerability and the Law, in accessing justice by the poor, the Law supra note 1, at p.269. Commission states: 5 Joseph DeGariele and Jeff Handmaker, “The Commission, however, observed that 4th Justice for the People: Strengthening grade magistrate courts are housed in what Primary Justice in Malawi, at p.151 in African used to be Grade A and B Traditional Courts, Human Rights Law Journal, Vol. 5, 2005 and concluded that the issue is not geography p.148. The authors state that: but rather functionality and effectiveness of “where formal justice systems, in particular these courts. Consequently, the Commission courts, are not accessible to the majority of conceded that the absence of these courts the population, primary justice systems offer may have contributed to the denial of access encouraging alternatives and, in many cases, to justice significantly in the rural areas since more appropriate solutions. They should people are deprived of access to familiar not be viewed as a substitute for the formal courts and familiar court procedures. Further, system, but as a dynamic complement to it.” the inability of the present magistrate (emphasis added).

92 Notes

6 B Van Rooij, Bringing Justice to the Poor: 10 Department for International Development, Bottom-Up Legal Development Cooperation, Briefing: Non-state Justice and Security Working Paper (2009) available at http://ssrn. Systems, May 2004, available at http://www. com/paper=1368185. See also International oecd.org/dataoecd/6/57/35243076.pdf, Development Law Organization, Towards pp.9-13. Customary Legal Empowerment- Inception 11 The Malawi Law Commission was established Paper, 2010 at p.4. This paper acknowledges in line with Chapter XII of the Malawi that: Constitution (1994) “Such an approach is consistent with the rise 12 The Malawi Human Rights Commission was of so-called ‘bottom-up’ legal development established pursuant to Chapter XI of the cooperation approaches, which seek to Malawi Constitution (1994). directly reach the poor or marginalized 13 The Office of the Ombudsman was groups through their interventions, instead of established pursuant to Chapter X of the hoping that state law reform projects ‘trickle Malawi Constitution (1994). down’ to benefit those at the bottom of 14 Malawi Law Commission Report, Supra note developing societies”. 2, p.13. See also The Commission on Legal 15 Open Society Foundation, Malawi- Justice Empowerment of the Poor, Making the Law Sector and the Rule of Law, Review Work for Everyone, Volume 2, 2008. At p.2. by AfrMap and Open Society Initiative The Commission observes that: for Southern Africa, Report written and “More generally, bottom-up and Researched by Professor Fidelis Edge empowerment approaches have been part of Kanyongolo, 2006, at p.132. the development agenda since the late 1990s 16 Making the Law Work for Everyone, Vol 1, and they have now become building blocks of supra note 7 at p.34). programmes such as the World Bank’s work 17 Malawi- Justice Sector and the Rule of in Community Driven Development and, more Law, Review by AfrMap and Open Society recently, its Justice for the Poor programme.” Initiative for Southern Africa, supra note 15, 7 Commission on Legal Empowerment of the at p. 135. Poor, Making the Law Work for Everyone, 18 Making the Law Work for Everyone, Vol 1, Volume 1, 2008. At p.ii. supra note 7 at p.75. 8 Making the Law Work for Everyone, Vol 1, ibid 19 Malawi Law Commission Report, Supra note at p.75. 2, p.11. 9 Making the Law Work for Everyone, Vol 2, 20 See The Local Courts Act No. 9 of 2011, supra note 6, p.4. published in the gazette on 8th April, 2011.

93 Notes

21 The Legal Aid Act No. 7 of 2011, published in · To ensure that any person whose rights the gazette on 8th April, 2011. or freedoms as herein recognized are 22 Ibid, at p.3. violated shall have an effective remedy, notwithstanding that the violation has been The ’Access to Justice’ Concept at the committed by persons acting in an official International Level capacity; · To ensure that any person claiming 23 Rule of Law and Transitional Justice in such remedy shall have his right thereto Conflict and Post- Conflict Societies Report determined by competent judicial, of the UN Secretary-General; S/2004/616 administrative or legislative authorities, or of 23 August 2004. by any other competent authority provided 24 Making the Law Work for Everyone, Vol 2, p. 3. for by the legal system of the State, and to 25 Making the Law Work for Everyone, Vol 1, p. develop the possibilities of judicial remedy; 34. · To ensure that the competent authorities 26 See generally Ayesha Kadwani Dias and shall enforce such remedies when granted.” Gita Honwana Welch: Justice for the Poor- 29 See generally Andrew Nyirenda, Thomas Perspectives on Accelerating Access, 2009 Trier Hansen and Desmond Kaunda: A (UNDP; Oxford). Comparative Analysis of the Human Rights 27 The exact phrasing of this article is to be Chapter under the Malawi Constitution in an found under Article 16 of the United Nations International Perspective (2003). Covenant on Civil and Political Rights 30 See generally Francesco Francioni: Access (ICCPR) to which Malawi is a party. to Justice as a Human Right, 2007 (Oxford 28 Article 14 of the ICCPR is in the following University Press) and Ayesha Kadwani Dias terms: and Gita Honwana Welch: Justice for the ”All persons shall be equal before the courts Poor- Perspectives on Accelerating Access, and tribunals. In the determination of any 2009 (UNDP; Oxford University Press). criminal charge againt him, or of his rights 31 See generally Francesco Francioni: Access and obligations in any suit at law, everyone to Justice as a Human Right, 2007 (Oxford shall be entitled to a fair and public hearing University Press). by a competent, independent and impartial 32 UNDP (2005), Programming for Justice: tribunal established by law.” Access for All, A practitioner’s guide to a Article 2(3) of ICCPR outlines the obligation human rights-based approach to access to of the state in matters of access to justice in justice. in UNDP- Doing Justice, p.8. the following terms: 33 Supra, footnote 31. ”Each State party to the present Covenant 34 UNDP Access to Justice Practice Note, 2004 undertakes p.2.

94 Notes

35 UNDP Access to Justice Practice Note, 2004 38 Making the Law Work for Everyone, Vol 1, p. p.6. 32. 36 UNDP Access to Justice Practice Note, 39 See generally Open Society Foundation, 2004 p.3. Malawi- Justice Sector and the Rule of 37 UNDP Practice Note p.3 See also UNDP- Law, Review by AfrMap and Open Society Doing Justice, 2006 at p.8: Consistent Initiative for Southern Africa, Report written with UNDP’s strong commitment to the and Researched by Professor Fidelis Edge Millennium Declaration and the fulfilment of Kanyongolo, 2006. the Millennium Development Goals, access 40 Making the Law Work 4 Everyone, Vol 2, p. iii. to justice is a vital part of UNDP’s mandate. 41 UNDP: Access to Justice Practice Note, Access to justice is essential for human 2004 p.5. development, establishing democratic 42 World Bank- Justice for the Poor Briefing governance, reducing poverty and conflict Note- Access to Justice for Women, prevention in the sense that: Indonesia case Study, p. 1. · Democratic governance is undermined 43 World Bank- Justice for the Poor Briefing where access to justice for all citizens Note- Access to Justice for Women, (irrespective of gender, race, religion, age, Indonesia case Study, p. 1. An example of class or creed) is absent. a country program is the Justice for the · The poor and disadvantaged, due to their Poor (J4P) in Indonesia which is part of vulnerability are more likely to be victims of the AusAID-World Bank collaboration on criminal and illegal acts, including human the East-Asia and Pacific Justice for the rights violations. Crime and illegality are Poor Initiative. This Initiative includes work likely to have a greater impact on poor and in Solomon Islands, Vanuatu, Papua New disadvantaged people’s lives as it is harder Guinea, Timor-Leste, and Indonesia, as well for them to obtain redress. As a result, as on other regional thematic activities. they may fall further into poverty. Justice 44 Making the Law Work for Everyone, Vol 1, p. systems can provide remedies which will 77. minimize or redress the impact of this. 45 Danish Institute for Human Rights, · Fair and effective justice systems are the (forthcoming), Study on Informal Justice best ways to reduce the risks associated Systems. 2011, UNDP, UNICEF and UNIFEM. with conflict. The elimination of impunity 46 See generally the Commission on Legal can deter people from committing further Empowerment of the Poor, Making the Law injustices, or from taking justice into their Work for Everyone, Volume 1, 2008. own hands through illegal or violent 47 Wilfried Scharf, Informal justice systems in means. In many countries, the reduction of Southern Africa: How should Governments violence is critical for achieving the MDGs. Respond?, Institute of Criminology, University of Cape Town, South Africa, 2009.

95 Notes

48 See generally Deborah Rhode: Access to 52 Leila Chirayath, Caroline Sage and Michael Justice, Fordham Law Review, Vol.69, issue Woolcock: Customary Law and Policy 2, 2001. Reform- Engaging with the Plurality of Justice Systems July 2005 p.13 & 14. The Malawi pre-2011 Access to Justice 53 Supra, Footnote 15. Legal Framework 54 Dispute resolution processes before Informal Justice Systems is described to be 49 Tikambenji Malera, G. (2005), The Socio- as follows: Chiefs, assisted by their ndunas Legal Status of Malawian Women in (advisors, all men) preside over customary Politics: Opportunities and Challenges. The justice forums. The system is characterised Danish Institute for Human Rights. by its relaxed yet respectful atmosphere, 50 See Ayesha Kadwani Dias and Gita Honwana an outdoor rural setting (often under a Welch: Justice for the Poor- Perspectives on tree), informality of dress, common-sense Accelerating Access, 2009 p.420. language and a natural flow of story-telling 51 Leila Chirayath, Caroline Sage and Michael and questioning. The dispute is dealt with Woolcock (2005) state that: “In most in a holistic manner, taking into account cases customary systems have, in fact, interpersonal relationships, community been substantially altered and re-shaped status, local values and community by different eras of colonial and post- perceptions. A participatory or consensual colonial rule. Different regimes have tried to approach to decision-making is adopted. formalize, co opt or recast existing systems Victim, offender and family members or within colonial or post-colonial legal relatives are called to appear before the frameworks, often substantially changing chief or elders. The aim is first to ascertain the nature of a given system. British revision the facts, thereafter, the forum will reach of indigenous judicial systems in Africa a decision that satisfies the victim, and is was fundamentally hypocritical: on the one considered reasonable by the chief and the hand, they sought to preserve custom by wider community. Factors at play include recognizing customary institutions, and the interests of the chief to promote his on the other, ‘they were to be a vehicle for authority and prestige, political influences remolding the native system ‘into lines and pressure, and the current human consonant with modern ideas and higher rights and democratic changes that have standards.’ For example, indirect rule often influenced some members of certain distorted ‘native’ authority by strategically communities. Additional factors are the assigning duties to certain individuals and respective status of the disputants, and fundamentally altering the pre-existing the likelihood of the case being taken to balance of power.” p.8. the formal state courts. Adapted from

96 Notes

Wilfried Scharf, Non-state justice systems in systems are often seen as vehicles for elite Southern Africa: How should governments political or economic interests, with fragile respond? and Wilfried Scharf, Chikosa institutions and lack of an empowered Banda, Ricky Rontsch, Desmond Kaunda, citizenry in many developing countries Rosemary Shapiro, Access to justice for the leaving institutions open to corruption and poor of Malawi? An appraisal of access to elite capture”. justice provided to the poor of Malawi by the 59 See Chapter Two for a full citation of Section lower subordinate courts and the customary 41 of the Malawi Constitution. justice forums. 60 Malawi Law Commission Constitutional 55 Open Society Foundation Report, supra Review final Report (2004) p.41. footnote 15, p26. 56 Repugnancy clauses were the subject of The Malawi post -2011 Access to Justice great debate in newly independent African LEgal Framework states. These “were a colonial creation to prevent enforcement of customary laws or 61 See Africa Watch, 1990, Where Silence practices if they offended western moral Rules, The Suppression of Dissent in standards. Conforming to the Constitution Malawi. London and New York: Africa Watch, does not impose the same burden on p.1. customary law since it is much broader 62 See generally Chijere Chirwa, W. (2006), than colonial policy.” See South African Law Report on Political Participation, Second Commission Report (2003), p25. Draft. Governance Monitoring Project 57 Leila Chirayath, Caroline Sage and Michael Malawi. Woolcock (July 2005): Customary Law and 63 Open Society Foundation: Malawi Justice Policy Reform: Engaging with the Plurality Sector and the Rule of Law- A Discussion of Justice Systems p8. Paper, 2006 at p.4. 58 Leila Chirayath, Caroline Sage and Michael 64 See Malawi Law Commission, Report of Woolcock : Customary Law and Policy the Law Commission on the Review of the Reform: Engaging with the Plurality Traditional Courts Act, September 2007. of Justice Systems July 2005 p5. This 65 See Malawi Law Commission, Report of report also acknowledges that “in many the Law Commission on the Review of the communities, traditional systems not only Traditional Courts Act, September 2007. reflect prevailing community norms and 66 See, Malawi National Assembly Daily values, but the state systems lack legitimacy; Debates (Hansard), Third Meeting, 42nd they are seen as mechanisms of control and Session, 9th December, 2010. The motion coercion used by oppressive regimes. State to move the Bill was tabled by Hon.

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Dr. Chaponda, Minister of Justice and 72 Ibid. (Hansard) p. 711 Constitutional Affairs. 73 Ibid. p.719. Nonetheless, Hon. Dr. 67 Legal Aid Bill No 7 of 2011, at p.3. Mwalwanda was quick to propose that 68 Ibid. Hansard, p.710. the Legal Aid Bill should properly define 69 Among the eligibility criteria for granting categories of people eligible for Legal Aid legal aid in civil matters which may favour so that people such MPs do not abuse the the poor and indigent clients under the service intended for the poor. Legal Aid Act include: 74 Ibid. p. 711 Section 20(a) - “has reasonable grounds for 75 Ibid. p.712- Malawi’s Anti-Corruption instituting or defending the matter for which Bureau has over the years attracted several he seeks legal aid” development partner support besides Section 20(b) - “has insufficient means to funding from government. The DFID and EU enable him to obtain the services of a private Rule of Law Programme have pumped large legal practitioner.” sums of money into the institution- and 70 Among the eligibility criteria for granting yet it still has failed to retain lawyers. This legal aid in criminal matters which may is perhaps an indication of the imbalance favour the poor and indigent clients under between supply and demand of legal the Legal Aid Act include: services in Malawi- i.e. very high demand for Section 18(2)(a) - “the offence is such that it legal services chasing very few lawyers. the applicant were convicted it is likely that 76 Ibid, (Hansard) p.713. Note that K30million is the court would impose a sentence which approximately equivalent to 1million Dkr. would deprive the accused of his liberty or 77 Ibid. (Hansard) P. 714 lead to loss of his livelihood or to serious 78 Ibid. p. 715 damage to his reputation” 79 Ibid. p. 718 Section 18(2)(f) - “The accused would, if 80 Ibid. p. 716 convicted, be given the option of a fine and 81 Ibid. p. 721 the fine would remain unpaid for more than 82 Ibid. p. 723 one month after imposition of sentence”. 83 Ibid. p. 720 71 For example, strained diplomatic relations 84 In many ways, one would have thought between the Bingu regime and the British that, as read together, the Legal Aid Act government led to the drastic scaling down would complement the Local Courts Act of DFID funding to Malawi. This may impact in expanding access to justice for the poor heavily on Malawi’s delivery of justice and indigent Malawians. The debate in services since DFID was by far the Malawi’s Parliament was soon to upset this view. largest traditional donor for many years.

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85 See, Malawi National Assembly Daily the said system to embrace the values Debates (Hansard), Third Meeting, 42nd enshrined in the constitution, including the Session, 7th February, 2011. The motion right to human dignity; the achievement of to move the Bill was tabled by Hon. equality and the advancement of human Dr. Chaponda, Minister of Justice and rights and freedoms; and non-racialism and Constitutional Affairs. non-sexism.” See: South Africa: Bill Sets Out 86 Malawi National Assembly Daily Debates Traditional Courts’ Limits. (Hansard), Third Meeting, 42nd Session, 7th 94 As Professor Wiseman Chijere Chirwa wrote February, 2011, p.192. prior to the enactment of the Local Courts: 87 Ibid. p. 192. ”The Constitution creates possibilities for 88 See the contributions to the debate by conflicts in relation to the separation of Hon. Anna Kachikho, Minister of Local powers between the Executive and the Government and Rural Development- Judiciary should the traditional leaders Hansard, 8th February, 2011 P.230. handle judicial matters”. See: Wiseman 89 As Honorable Goodall Gondwe observed, Chirwa- Afrimap Governance Report Supra under the old Traditional Courts, “a Chief.. at footnote 62. paralleled the Chief Justice”. Hansard 8th 95 Professor Chirwa raises the following further February, P.226. dilemma: ”should the Constitution, or 90 In the United Kingdom, for example, under any other law, stop the traditional leaders the 1996 Arbitration Act, private religious from exercising “judicial” or semi-judicial arbitration on some disputes between functions, the Constitution or that law spouses conducted by Jewish and Muslim would kill the very essence of traditional organisations is recognised by the State. leadership and hence amount to the 91 UNIFEM, (2008/2009), Progress of the abolition or transformation of the institution World’s Women 2008/2009. Who answers of chieftaincy”. See: Wiseman Chirwa- to women? Gender and Accountability. AfriMap Governance Report. However, as p.68). the Malawi Law Commission recognises, 92 See generally: Leigh T. Toomey : A Delicate Traditional Leadership shall continue to Balance: Building Complementary play this parallel judicial role regardless of Customary and State Legal Systems , 2010. whether Chief preside over local Courts or 93 Similar views were expressed in the South not. Nonetheless, Prof. Chirwa is in support African context in debating the Traditional of creating a Chiefs Council in order to Courts Bill, some Members of Parliament confer other and similar responsibilities on pointed to “the need to align the traditional Traditional Authorities: justice system with the constitution, for “Traditional leaders have constantly

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advocated for the establishment of the outside the country, but that should not Chiefs’ Council through which they could warrant bringing [such] things..”. Hansard 8th consult with government on matters of February, 20011 at p.225. national interest. The council could also 100 Ibid. p. 194. play oversight functions. With the repeal of 101 Hon. Dr. Cassim Chilumpha also observed the constitutional provision on the Senate, that “Traditional Courts were established the proposal for the Chiefs’ Council makes by the Colonial Government well before some good sense. The Council could be 1964. But what happened was is that an important alternative dispute resolution because these courts were created by an mechanism in addition to performing Act of Parliament, government kept on oversight functions. There is need for debate changing their nature and this is how they on this issue.” Wiseman Chirwa- AfriMap ended up trying treason cases, murder Governance Report. cases and this is how they ended by being 96 Report of the Law Commission on the presided over by chiefs.” Hansard, 8th Review of the Traditional Courts Act, at p.17. February, 2011. P.231. 97 Ibid. p. 193. Ironically, the Malawi Congress 102 Ibid, Hansard 8th February, p.232. Party (MCP) was the single party which rule 103 Some of the criminal matters which Malawi for more that 30 years (1961-1994) may have to be handled by Local Courts under Dr Kamuzu Banda’s autocratic rule. under Statutory include, for example: The MCP ushered in the so called “notorious possession, publication or importation Traditional Courts.” of prohibited material (under Section 98 Ibid (Hansard) 7th February, p. 200. Hon. 47(2) of the Penal Code); prohibition of Uladi Musa went further to accuse the publication of false news likely to cause Executive as being strongly behind the fear and alarm to the public (under Section Local Courts Bill. He said “I know what the 60 of the Penal Code); conduct likely to problem is. I know this bill is not coming cause breach of peace (under Section from the Law Commission…I have been a 181 of the Penal Code); Use of insulting Cabinet Minister for 10 years. I know what language (under Section 182 of the Penal happens. Things can appear [as if they Code). are] coming from the Law Commission, 105 Ibid. Hansard, 7th February, 2011, p. 201. yet originally, they are coming from the 106 Ibid. Hansard, 7th February, p. 196. Executive.” 107 Ibid. Hansard 7th February, 2011, p. 197. 99 Referring to the Hon. Minister of Justice and However, the Special Law Commission Constitutional Affairs, Hon. Uladi Mussa said: was of the view that “if personnel of Local “..at the time we were suffering, he had been Courts [were] properly qualified and

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trained [they] should be able to exercise Complementary Customary and State diligence in criminal matters and live up to Legal Systems, 2010. the standards set by the Constitution.” (see 118 See the First Schedule to the Local Courts Hansard 9th February, 2011 p.291). Act which lists the criminal Jurisdiction of 108 Ibid. Hansard, 8th February, 2011 P.237. Grade A and Grade B Local Courts. 109 Ibid. Hansard, 7th February, 2011, P.198. 119 Section 27(1) of the Local Courts Act 110 Ibid. p. 199. provides: ”The aggregate of any terms of 111 This point was supported by Hon. Uladi consecutive sentences of imprisonment Mussa who said: “if the intention is to which a Local Court may impose on an reduce the number of cases heard by offender shall not exceed two years.” Magistrate Courts in the country, why can’t 120 Making the Law Work for Everyone, Vol 1. we empower the Magistrate Courts or p.76. increase the number of Magistrate Courts 121 See generally Bruce Baker: Linking State in the Country?” Hansard, 8th February, p. and Non-State Security and Justice. 2010. 224. 122 See generally Malawi Law Commission, 112 Ibid. p. 199. Report of the Law Commission on the 113 Open vote by call of names of individual Review of the Traditional Courts Act, MPs to end the debate. September 2007. 114 Malawi Law Commission, Report of the Law Commission on the Review of the The Shift towards Engagement with Traditional Courts Act, September 2007 at Informal Justice Systems p.23. – Stakeholder Perspectives 115 These are matters I have dealt with elsewhere within my Masters Thesis. See 123 Penal Reform International: Access to generally Desmond Mudala Kaunda: justice in sub- Saharan Africa – the role of State Obligations for Past Human Rights Traditional and Informal Justice Systems, Violations of Former Regimes- the Case of November, 2000 at p. 1). Malawi, Essex University (1995). 124 Leila Chirayath, Caroline Sage and Michael 116 Siri Gloppen and Fidelis Edge Kanyongolo, Woolcock: Customary Law and Policy Courts and the Poor in Malawi: Economic Reform: Engaging with the Plurality of Marginalization, Vulnerability and the Justice Systems p. 4 The authors continue Law, in the International Journal of to argue that: Constitutional Law, Vol 5, 2007 at p.259. “Despite the prevalence of traditional 117 See generally: Leigh T. Toomey and customary law, these systems have : A Delicate Balance: Building been almost completely neglected by the

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international development community, Social Change? Experiences from Rural even at a time when justice sector reform Zambia, p.2. has become a rapidly expanding area 130 DFID Briefing Note, p.9. of assistance. In the past decade, for 131 Other examples of shifts in engagement example, the World Bank has dramatically with IJS include: United States Institute increased its efforts in promoting justice for Peace, Fletcher School of Law and sector reform in client countries, yet Diplomacy who in collaboration with the none of these projects deal explicitly with Centre for Humanitarian Dialogue, have traditional legal systems, despite their studied the extent to which informal predominance in many of the countries justice systems can play a role in post- involved. Of the 78 assessments of legal conflict reconstruction of the rule of and justice systems undertaken by the law, and the extent to which, and how, Bank since 1994, many mention the international and national policy makers prevalence of traditional justice in the can engage them. Countries of focus countries looked at, but none explore the have included: Burundi, East Timor, systems in detail or examine links between Mozambique, Guatemala, Somalia, local level systems and state regimes”. Afghanistan, Liberia, Papua New Guinea, 125 Michael Anderson- Making Legal Sierra Leone, and Sudan. See UNDP- institutions Responsive to the Poor- p.6. Doing Justice p43. 126 UNDP Practice Note, p.4. 132 UNDP- Doing Justice- p.12. 127 Minneh Kane- Reassessing Customary 133 UNDP Doing Justice. See also Ewa Law Systems a Vehicle for Providing Wojkowska: How Informal Justice Systems Access to Justice for The Poor p. 17. can Contribute, December 2006, p.6 128 Ibid Leila Chirayath, Caroline Sage and This realisation is collaborated by similar Michael Woolcock: Customary Law findings by the International Development and Policy Reform: Engaging with the Law Organization (IDLO) who state that: Plurality of Justice Systems p.1. “The limited effect of reforms in the state 129 ”Herein then lies the crux of the matter justice sector on the majority of the poor, – attitudes and beliefs are difficult to coupled with increased recognition of the change, making legal reform a long-term wide reach and accessibility of customary process. It is not enough to pass a law justice systems has led to a changing in the Parliament – people need to be attitude among donors towards customary made aware of the law, and they need to justice systems, and an interest to build on accept it in order to implement it.” Emmi their positive elements for the benefit of Hypponen- Legal Reform - the Key to the poor. Such an approach is consistent

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with the rise of so-called ‘bottom-up’ legal 136 UNDP, Doing Justice, p.13, For example, development cooperation approaches, UNDP’s Indonesia Legal Empowerment which seek to directly reach the poor and Assistance for the Disadvantaged or marginalized groups through their (LEAD) project was developed on the interventions, instead of hoping that basis of the findings of an access to justice state law reform projects ‘trickle down’ to assessment. The project features a grant benefit those at the bottom of developing making facility primarily to civil society societies. This new donor engagement not organisations. Grants are provided to only focuses on enhancing the positive organisations seeking to improve access aspects of customary justice systems, to justice through informal mechanisms. but also tries to overcome a number of The project is employing the following negative aspects of such systems.” IDLO approach: Inception paper P4. • raising the legal awareness, power and 134 UNDP Practice Note, p.4 An Open Society assistance available at the grassroots Justice Initiative review of donor assistance village or community level; to justice sector reform in Africa also states • building paralegal capacities for that “any examination of the experience specific villages or NGO members who of poor and excluded persons accessing will develop greater levels of legal justice in Africa must conclude that formal knowledge and skills; state institutions may not be the most • supporting legal services provided by relevant”. UNDP- Doing Justice, p.9. lawyers and related services by NGOs 135 Ibid, UNDP Practice Note- p.11. and other professionals; Consequently, over the past few years, • Analysis of the problems and progress UNDP has supported the enactment of that LEAD and its partners meet will pro-poor and human rights legislation, contribute to policy and legal reform treaty ratification, and capacity advocacy. development for the analysis, scrutiny and 137 This shift is largely premised on the drafting of legislation. Such assistance fact that “traditionally, donor-led legal has helped governments address key reform projects have emphasized grievances that trap disadvantaged people formal institutions, such as the judiciary, into poverty, such as women’s property legislators, the police, and prisons, and rights. It has also helped consolidate paid less attention to customary justice jurisprudence, and has assisted systems. The prominence of customary governments in efforts to link traditional justice systems has often been regarded with formal legal systems. as incompatible with the modern nation-

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state and therefore as something to attention to Including: where NSJS be discouraged or ignored rather than systems discriminate against women strengthened or engaged with. However, and marginalised groups as highlighted a growing body of evidence suggests that by local civil society organsations poor people in developing countries have (CSOs) to be justification for reform. limited access to the formal legal system The International Development Law and that their lives are largely governed by Organization also notes: customary norms and institutions. As such, “Thus, while there is growing recognition customary justice systems play a much of the importance of customary justice more important role in the lives of many of systems, there are a number of issues the world’s poor than state justice systems. regarding their operation that need to be One study refers to figures collected by addressed, including elite capture, human development cooperation departments rights protection, and, in certain cases, the in Britain and Denmark, indicating that in integration of non-state arrangements in some countries up to 80 percent of the wider capital markets. It is on these issues population lives under customary justice that legal reform projects could possibly systems and has little to no contact with play a role.” DIIS Inception paper p. 6 state law. These figures are corroborated 142 DFID gives the example of a person by findings from academics studying who exercises judicial (or quasi-judicial) African law showing that customary law authority through a non-state justice ‘governs the daily lives of more than system and who may also have executive three quarters of the populations of most authority over the same property or African countries’, while according to one territory. Thus IJS systems may be author ‘up to 90 percent of cases in Nigeria used to control the distribution of land are settled by customary courts.’” DIIS and resources by local elites, who may Inception paper p. 2. abandon “traditional” norms in favor of 138 Available at www.danidadevforum.um.dk. their own material interests. 139 Danida- How-to Note p.3 available at www. 143 DFID Non-State Justice in Bangladesh and danidadevforum.um.dk Philippines 2003 p.1. 140 DFID Briefing Note- Non State Justice and 144 See- Leila Chirayath, Caroline Sage and Security Systems, May, 2004 p.1- available Michael Woolcock (2005), Customary at www.dfid.gov.uk. Law and Policy Reform: Engaging with the 141 Ibid- DFID Briefing Note, p.3. DFID’s Plurality of Justice Systems. Referred to in Briefing Note provides practical UNDP- Doing justice, p. 12. examples of critical areas to pay

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145 The World Bank Justice for the Poor advantage – a phenomenon known as program in Indonesia was established ‘elite capture.’ to develop strategies for an approach 148 DFID Briefing Note 2004, p.6. As a to justice reform which builds popular possible solution, DFID proposes that constituencies to demand justice. The “one approach is to get the backing of program commenced with research, the legal profession and judiciary in an which focused on success stories rather incremental way by working with those than a problem analysis – what allowed individuals and groups that already see the poor people to defend their interests need to engage with IJS systems. These successfully in an unfavorable institutional might include lower level magistrates, environment? For example, the village lawyers and provincial administrators judicial autonomy research project aims who are already involved in community- to strengthen informal dispute resolution based initiatives, such as training paralegal mechanisms at the local level. It is tracking workers. Donors can help to broaden the dispute resolution processes, norms debate on reform of IJS systems”. and actors with a specific focus on the 149 DFID- Review of How East Africa has experiences of poor and marginalsed worked with Informal Justice Systems. members of the community. The Justice p.30. for the Poor program subsequently 150 See Malawi Law Commission: Report of evolved into an experimental stage the Law Commission on the Review of where research and analytical findings the Traditional Courts Act, September are trialed through operational programs. 2007, p.2 In debating the Local Court Outcomes from the experimental phase Bill in Parliament, Hon. Pro. Donton of the Justice for the Poor program are Mkandawire also observed that “this is a informing a scaling-up of activities. This judicial reform that has been spearheaded includes both stand-alone justice sector by the Judiciary itself. Those who have reform projects and the mainstreaming of read this document will know that the Law legal empowerment through World Bank Commission we are talking about had five community development programs. See Judges of Appeal and all together there UNDP- Doing Justice p.44. were 12 lawyers.” Hansard, 8th February, 146 World Bank- Justice for the Poor- Kenya 2011, p. 243. Concept Note. 151 Schärf W., Kaunda D. and Banda C. (2002), 147 Some times, instead of trying to block Access to Justice for the Poor of Malawi? legal reforms outright, powerful actors An Appraisal of access to Justice provided may subtly manipulate them to their to the poor of Malawi by the Lower

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Subordinate Courts and the Customary 157 Making the Law Work for Everyone, Vol. 1, Justice Forums. p.76. 152 World Bank 2011 World Development 158 Leila Chirayath, Caroline Sage and Michael Report p.196. The World Bank states: Woolcock: Customary Law and Policy ”International assistance needs to be Reform: Engaging with the Plurality of sustained for a minimum of 15 years to Justice Systems. p. 26. support most long-term institutional 159 Wiseman Chirwa- AfriMap Governance transformations. Longevity is something Report, supra at footnote 62. that some international NGOs have 160 UNDP Practice Note- 2004, p.11. understood for some time while bilateral 161 Making the Law Work for Everyone, Vol 1 and multi lateral donors have started p.76. to adopt longer time frames. Witness 162 The Malawi Law Commission (MHRC) the U.K. DFID’s 10-year partnership litigation work has been partly agreements, the recent Dutch agreement assisted through and Memorandum of with Burundi on a 10-year security-sector Understanding which the Commission reform plan, and the 10-year exceptional has entered into with the Malawi Law assistance to post-conflict countries from Society (MLS). The same has been the the World Bank. Short project duration arrangement with one of the local NGOs- and small project size compound the the Centre for Legal Assistance which has problem.” and MoU with the MLS- Lilongwe Chapter. While appreciated, the contribution of THE CURRENT MALAWI STATE OF ACCESS lawyers to such pro bono programmes has TO JUSTICE BY THE POOR AND PROSPECTS been minimal. FOR IMPLEMENTATION OF THE NEW LEGAL 163 Debora Rhode- Access to Justice. Supra AID AND THE LOCAL COURTS ACTS footnote 48, p. 1809. 164 Debora Rhode- Access to Justice. Supra 153 World Bank: World Development Report footnote 48, p. 1809. 2006, p.171. 165 Schärf Wilfred, Kaunda Desmond. and 154 Supra footnote 91 at p.53. Banda Chikosa. (2002), Access to Justice 155 See for example, The Illusion of for the Poor of Malawi? An Appraisal of Inclusion- Kenya Research Report 2008 access to Justice provided to the poor of p.40. Malawi by the Lower Subordinate Courts 156 Making the Law Work for Everyone, Vol. 1, and the Customary Justice Forums. p.32. 166 Minneh Kane- Reassessing Customary Law Systems a Vehicle for Providing

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Access to Justice for The Poor p. 17. COMPARATIVE CASE STUDIES: LESSONS 167 Making the Law Work for Everyone, Vol. 1, TO BE LEARNED FROM OTHER SELECT p.80. INFORMAL JUSTICE SYSTEMS 168 Making the Law Work for Everyone, Vol. 1, p.80-81. 178 UNDP Doing Justice: How informal justice 169 Open Society Foundation: Malawi- Justice systems can contribute- Ewa Wojkowska, sector and the Rule of Law, supra note 63 December 2006, p.6. p.12. 179 Making the Law Work for Everyone, Vol. 1, 170 See Hansard, 9th December, 2010, at p.76. p.713. 180 World Bank- 2011 World Development 171 Open Society Foundation: Malawi- Justice Report, p.198. The states that the African sector and the Rule of Law, supra note 63 Development Bank (AfDB), UNDP, and the p.27. World Bank all now have specific South- 172 Danish Institute for Human Rights, South facilities- the AfDB’s being notable (forthcoming), Study on Informal Justice for its size and focus on fragile states. Systems. 2011, UNDP, UNICEF and There is also recognition that learning UNIFEM. from recent transformations in middle- 173 UNDP: Doing Justice- How Informal income countries can be particularly Justice Systems can Contribute, p.18. valuable. 174 See Supra footnote 91, p. 71. 181 UNDP Practice Note, 2004, p.10. 175 Leila Chirayath, Caroline Sage and Michael 182 Making the Law Work for Everyone, Vol. 1, Woolcock : Customary Law and Policy p.76. Reform: Engaging with the Plurality of 183 Leila Chirayath, Caroline Sage and Michael Justice System. p. 5. Woolcock: Customary Law and Policy 176 Making the Law Work for Everyone, Vol. 1, Reform: Engaging with the Plurality of p.80. Justice Systems p. 3. 177 The Minister of Justice and Constitutional 184 Leila Chirayath, Caroline Sage and Michael Affairs Hon. Mganda Chiume has been Woolcock: Customary Law and Policy reported by various local media, including Reform: Engaging with the Plurality of Zodiac on line news, to be planning to Justice Systems p. 15. initiate a process of public consultations, 185 Ibid. Leila p. 16. through the Malawi Law Commission, 186 Open Society Justice Initiative, National leading to the review and amendment Criminal Justice Reform, Donor of several ‘unpopular’ laws and bring Assistance to Justice Sector Reform in them in line with peoples’ interests and Africa: Living up to the new agenda? in expectation. UNDP- Doing Justice, p. 9.

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187 See Afronet Report (1998): The Dilemma and judicial functions as out of step with of Local Courts in Zambia. democratic practice. The compromise 188 Adapted from Chirayath and others (2005) appears to be that both the judiciary and in World Bank World Development Report the Ministry of Local Government exercise 2006, p.160. joint supervision. 189 Ibid. Adapted from Chirayath and others 195 See the Local Council Court Act 2006. (2005) in World Bank World Development 196 awards exceeding five thousand shillings Report 2006, p.160. are referred to the Magistrates Courts for 190 Making the Law Work for Everyone, Vol. 2, the purposes of execution of the order. p.45. 197 See the Local Council Court Act 2006. 191 DFID- Review of how East Africa has 198 See the Local Council Court Act 2006. worked with IJS, p.24. 199 Supra Minneh Kane- Reassessing 192 See the Local Council Court Act 2006. Customary Law Systems as Vehicle for 193 Minneh Kane Reassessing Customary Providing Equitable access to Justice for Law Systems as Vehicle for Providing the Poor 2005. Equitable access to Justice for the Poor 200 Lynn S. Khadiagala, Justice and Power in 2005. LCCs were set up to provide the Adjudication of Women’s Property “grassroots” justice as part of the struggle Rights in Uganda, Africa Today, Vol.49, No. against a government that was seen 2, Women, Language and Law in Africa 2 as oppressive. They were an attempt (Summer, 2002) p. 101- 121. to de-formalise or ‘popularise’ the 201 Legitimacy is normally a result of administration of justice and were hailed acceptance by the society or a product of as both an attempt to bring justice closer the law: see- Thomas Sikor and Christian to the people and to re-connect people to Lund, Access and Property: A Question of their customary traditions. Power and Authority, Development and 194 UNDP- Doing Justice, p.26 Since LCC Change 40(1) p. 1-22 (2009). courts are presided over by LCC Councilors 202 See Minneh Kane, Joe Oloka-Onyango who also play local government roles, and Tejan-Cole, Reassessing Law Systems there has been extensive discussion As a Vehicle for Providing Equitable on whether they should be under the Access to Justice for the Poor, Paper supervision of the Ministry of Local presented at the World Bank Conference Government or the judiciary. Calls to have in Arusha Tanzania “New Frontiers of them placed under the judiciary have Social Policy”, December, 2005, p.12-15. come largely from the legal profession 203 Minneh Kane, Reassessing Customary who view the combining of administrative Law Systems as Vehicle for Providing

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Equitable access to Justice for the Poor 207 Malawi AfriMap Report- p.31 The set 2005. of recommendations outlined in this 204 Lynn S. Khadiagala, Justice and Power in Report are motivated by the recent UNDP, the Adjudication of Women’s Property UNICEF and UNIFEM sponsored: Study Rights in Uganda, Africa Today, Vol.49, No. on Informal Justice Systems- Access to 2, Women, Language and Law in Africa 2 Justice and Human Rights, undertaken (Summer, 2002) p. 101- 121. by the Danish Institute for Human Rights (DIHR) ( forthcoming). General Conclusions and 208 Open Society Foundation: Malawi Justice Recommendations Sector and the Rule of Law discussion Paper – supra note 63 p.31. 205 Making the Law Work for Everyone, Vol. 2, p.iii. 206 Section 12 of the Malawi Constitution (1994) provides in part as follows: ”This Constitution is founded upon the following underlying principles: (i) All legal and political authority of the State derives from the people of Malawi and shall be exercised in accordance with this Constitution solely to serve and protect their interests; (ii) All persons responsible for the exercise of powers of State do so on trust and shall only exercise such power to the extent of their lawful authority and in accordance with their responsibilities to the people of Malawi; (iii) the authority to exercise power of State is conditional upon the sustained trust of the people of Malawi and that trust can only be maintained through open, accountable and transparent Government and informed democratic choice.” (emphasis added).

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CUSTOMARY LAWS IN LAWS IN CUSTOMARY ETHIOPIA: A NEED FOR BETTER RECOGNITION? RIGHTS PERSPECTIVEA WOMEN’S ASSEFA GETACHEW AYALEW PARTNERSHIP RESEARCH PROGRAMME INSTITUTE FOR HUMAN DANISH RIGHTS (DIHR)

CUSTOMARY LAWS IN ETHIOPIA: A NEED FOR BETTER RECOGNITION?