Primary Justice: Formal system overwhelmed as chiefs’ courts go dry

Traditional Authority (T/A) Kanduku remembers fondly how he used to settle so many cases, sometimes touching the cylinder of 20 a week, at his court in Mwanza district; now he either sits all day long basking in the sun or tender to his chickens as cases become more and more elusive.


“I am a worried man because the formal justice system is eating up much of the cases we (traditional leaders) used to settle in the recent past. Imagine a whole magistrates’ court handling cases of crop or chicken theft, and in the end meting a five-year sentence on the offender. This is breaking our communities instead of uniting people,” says Kanduku.


Initially, dispute-resolution institutions comprise of two categories: the primary justice system –which refers to the way people resolve conflicts, access justice, and address issues within their cultural set up using their own resources – and the formal justice system, an obligatory constitutional requirement that falls under the judiciary.


The Malawi constitution also supports the peaceful settlement of disputes as a principle of national policy under section 13, which also addresses such issues as gender equality, nutrition, health, the environment, rural life, education, disability rights, children, the family, elderly, international relations, peaceful settlement of disputes, administration of justice, economic management, public trust and good governance.


Kanduku blames the situation on formal courts’ zeal for “petty” cases, a development he says has led to loss of respect for chiefs as feuding community members opt for the courts at the expense of their credibility.


“When people opt for these courts the impression created is that we chiefs are corrupt, biased, and so incompetent that they cannot resolve these issues; as a result our subjects no longer respect us, no longer believe in us. This trend must change and courts should start referring petty issues back to us. In fact, only cases with referral letters from either the senior chief, T/A, group village headman, or village headman should be entertained in order to reduce the backload of cases in our courts,” he opines.


He is not alone in this predicament as T/A Nthache, also from the same district, is facing the same problem. He used to preside over an average of 30 community disputes a month but now settles a maximum of three on a troublesome month.


Nthache says the trend baffles him because the formal justice system is almost over-stretched with cases, mostly from his very subjects.


“The worrying thing about this development is that most of the victims are women and children; there have been increased cases of rape, incest, home-based violence, animal and crop theft, and even deliberate damage to property. In some cases, the offenders have gone on to commit grievous crimes because they know that once caught they will be tried in a court that is very far away from their area.


“What Malawians must realize is that when a case has been settled using traditional means like chiefs, it acts as a deterrent because culprits don’t want to be tried in the presence of their fellow community members as they feel ashamed and disgraced. This works because the role of us chiefs is to settle disputes and bring people together again. People who offend each other even shake hands, but formal courts: their duty is to judge and have nothing to do with reconciliation,” says Nthache.


He attributes the current upsurge of political cases in Malawian courts to the same problem, where society becomes more and more inconsiderate about chiefs’ role in community disputer management, arguing political bickering starts at community level through such acts as banning some political parties from addressing public rallies in some villages, but because people overlook the responsibility of traditional leaders in solving such issues the problems grow and overcrowd formal court systems.


Mwanza District Commissioner, Paul Kalilombe, attributes the whole problem to lack of collaboration and proper case referral mechanisms between traditional leaders and formal courts, as well as various district stakeholders –community policing members, social welfare official, health officials, magistrate courts’ officials, marriage counselors, police personnel, and religious leaders –mainly because they work in isolation.


“But this will be a thing of the past following the introduction of an initiative, the Malawi Primary Justice Programme that has been launched and aims at building the capacity of chiefs, and other players. Through it, these people will be oriented and trained in case handling, management and as filing as you know that most of our chiefs face the problem of case records management. In fact, if you asked most of our traditional leaders about cases they handled in 1998, they won’t be able to furnish you with the records.


“It is hoped that the biggest beneficiaries will be women and children because this category of society continues to face the brunt of violence, sexual abuse, battering and other incidences of human rights abuse. Our chiefs will also begin to treat such issues seriously, unlike in the past where they used to be treated as domestic incidences, even when the woman or child lost a body organ,” says Kalilombe.


According to the District Commissioner, the tendency by district, as well as national organisations, to work in isolation with the aim of enjoying monopoly over donor funds has contributed to the problem of lack of coordination as more and more organisations shun integrated efforts due to self-serving purposes, albeit at the expense of women and children.


The programme is being funded by the British Department for International Development (DFID) through the Catholic Commission for Justice and Peace (CCJP) but is being implemented by the Association of Progressive Women. But the Mwanza District Assembly is the legal holder as the programme falls under the Local Government component.


Noel Msiska, Mwanza District Coordinator for the Primary Justice Programme, reveals that 80 to 90 per cent of the Malawian population has access to the primary justice system and that, to that effect, there is urgent need to train traditional leaders, especially on how best they can handle human rights abuses against women and children. Most chiefs, he says, still lag behind in terms of human rights knowledge and case referral systems hence community members’ loss of trust in them.


Says Msiska: “The majority of Malawians, especially in rural areas, only have access to the informal justice system due to several factors and these include: “inadequate legal personnel, one lawyer representing 40 000 people; the dissolution of the traditional courts, which has further widened the gap between those who have access to the formal justice system and those who have not; and poverty. It is cheaper to go to a village court than the High or magistrate court, considering the high legal costs in a country where over half the population lives below the poverty line.”

Six months ago, Chief Justice Amastazia Msosa acknowledged that the justice system was plagued by a mountain of unresolved cases, promising to do her best to clear the case backlog.

Six months later, nothing has changed!