MARRIAGE LAWS OF MALAWI - THE EVOLUTION OF AFRICAN MARRIAGE LAWS UNDER COLONIAL RULE BY TCHUPA N. CHIBAMBO A thesis submitted to the University of London in fulfilment of the requirements for the degree of Doctor of Philosophy in Law July, 1987 School of Oriental and African Studies ProQuest Number: 11010656 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a com plete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest ProQuest 11010656 Published by ProQuest LLC(2018). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States C ode Microform Edition © ProQuest LLC. ProQuest LLC. 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106- 1346 DEDICATION This dissertation is dedicated to: my grandfather, the late Edward Zachariah Mhango, and my grandmother, Edith Tembo. ABSTRACT This thesis examines the evolution of the law regulating African marriages and divorce in Malawi. It offers a re­ view of the principal rules of customary law governing marriage and describes the introduction of relevant legis­ lative provisions by the colonial administration, including the provisions for the registration of customary marriages enacted by African authorities. Special attention is given to the position of African Christians and to the policies and attitudes of Christian missions as determinants of colonial legislative policy. The analyses focus on the interaction of African custom, Christianity and secular statutory regulation of marriage and divorce. They highlight the impact on, and implications for, African society of the endeavours of the missions to Chris­ tianise African marriage and family life and of the reluctant efforts of the colonial administration to extend the applica­ tion of the marriage laws imported from the English legal system to the indigenous population. This also involves a review of African responses to relevant aspects of the colo­ nial experience. Largely through the study of case material, the wider consequences on African traditional marriage law and prac­ tice of African participation in the social, political and economic possibilities of Western European culture are also detailed. Much of the effort here is devoted to the exami­ nation of the contribution of the courts to the development of customary law and its adaptation to the changing environ­ ment and modern conceptions of social justice. PREFACE The advent of European colonial rule in Africa contributed to radical changes in the lives of the indigenous people. What have these changes meant in terms of African marriage laws and practices? The material presented in this study addresses this question with specific reference to the evolution of the laws governing African marriages in Malawi. The existing laws of marriage in Malawi have not under­ gone any radical changes since the attainment of indepen­ dence in 1964. In the whole field of family law, the only major legislative changes have been those affecting the law of succession.^ Basically three different types of mar­ riage law operate side by side within one and the same legal system. Thus, there are three ways in which marriage may validly be contracted in Malawi, namely, under custom- o ary law, under the Marriage Act, and in accordance with the provisions of the Asiatics (Marriage, Divorce and Suc- 3 cession) Act. This last Act applies only to those who are described as "non-Christian Asiatics",^ whether domiciled in Malawi or not. Although the term "Asiatic" is nowhere defined, it is clear that the provisions of the Act do not apply to Africans. This study is concerned with the devel­ opment of only those marriage laws which are applicable to members of the indigenous African population. The "Asiatics Marriage Act" therefore falls outside the ambit of the study. Any references to the Act are intended only for purposes of completeness. 5 There are basically two bodies of law under which Afri­ can marriages may be contracted, namely, customary law and the law under the Marriage Act, There are also District Council By-Laws^ which provide for the registration of cus­ tomary marriages. Customary marriages may also be regis­ tered in accordance with the provisions of the African Marriage (Christian Rites) Registration Act.** The study is divided into four parts. Part I, which is preceded by a general introductory survey of Malawi, consists of three chapters that offer a review of the prin­ cipal rules of customary law governing marriage. By far, the majority of African marriages in Malawi are contracted under customary law. The material examined in Part I is intended to contribute to a greater understanding of the relationship between the development of customary marriage law and the impact of European colonialism on African so­ ciety, in particular in terms of the transformation of African familial institutions. It is hoped that the rele­ vant analyses will show the significant extent to which the development of customary marriage law is rooted in the impact of colonial, capitalist economic systems on tradi­ tional African communities and in the intervention of colon­ ial judicial and administrative institutions in African family matters. Unlike the second and third parts of the study, in which the basic material used is of a purely historical nature, the discussions in Part I rely principally on case material. Although the records consulted are mainly those of the colonial period, post-colonial legal materials, es­ pecially the decisions of the National Traditional Appeal Court, have also been utilised extensively. It will be seen that generally, it is not essential to draw a very rigid distinction between the colonial and post-colonial periods. This is so because, firstly, the end of colonial rule did not result in the elimination of the institutional framework within which the customary law had been evolving during the colonial period. Secondly, while the attainment of independence ushered in a period of new and different political experiences for the African people, generally, it has led to the intensification and consolidation, rather than to a reversal or diminution, of the forces of social change initiated by European penetration. The same proces­ ses of social change continue to impinge upon the develop­ ment of customary law. Part II contains two chapters which describe the his­ tory of the principal legislation on marriage. This is mainly the Marriage Ordinance, 1902, and the Native Mar­ riage (Christian Rites) Registration Ordinance, 1923. The material presented highlights the issues and problems arising from the introduction of the "English system" of marriage law in /MalawiJ. The arguments, concerns and dif­ fering points of view of the principal protagonists in the history of colonial marriage legislation are surveyed. The basic issue in the whole of this history was the question regarding the application of the new system of marriage law to members of the indigenous African population. It will be seen, however, that the focus of the controversies which ensued was not the whole problem of African marriages, but merely the problem of African Christian marriages. This underlines the limited scope of colonial legislative activ­ ities, the way in which the legislative agenda tended to be influenced merely by the interests of the missions. At the same time, however, there is an extent to which the position of African Christians can be said to have been an inherently problematical one. In a society where the social division between the so-called "civilised" (mostly European) and "uncivilised" (mostly African) people tended to be a major element of life, the status of African Chris­ tians was somewhat ambivalent. It will be argued in this study that the debates leading to, and resulting from, the enactment of the Native Marriage (Christian Rites) Regis­ tration Ordinance, 1923 - a unique piece of legislation in British colonial Africa - were in effect essentially about the social status of African Christians. However, with the differences in doctrinal approach, mainly between the episcopal and the non-episcopal missions; with the rise of African nationalism, which manifested it­ self in political as well as religious forms; with the advent of "indirect rule", under which there was an apparent shift in colonial administrative policy in favour of African traditional authority and social institutions - the question of African Christian marriage became more tangled. In Part III of the study, an attempt is made to decipher the various strands of opinion, to delineate a whole range of attitudes and viewpoints, on the question of the interactions of Christianity, African custom and secular statutory regula­ tion of marriage. There are three chapters in Part III. The first chapter traces the history of Native Authority legislation dealing with the registration of customary marriages, the second looks at the question of monogamy and the third reviews the problem of divorce. It is in rela­ tion to these three subjects that most of the marriage-law policy issues are examined in detail. Part IV concludes the study by identifying the main elements and themes in the evolution of African marriage law. Current problems of marriage law and the question of reform receive consideration at the end of this part of the thesis, which consists of one chapter. The research for this study was conducted between 1982 and 1983. It mainly involved the examination of archival sources at the Public Record Office in London and at the National Archives of Malawi in Zomba. Thus, the bulk of the material presented in this thesis is derived from the primary sources contained in government and missionary files. Most of the files consulted date before the end of World War II.