The Exogenous and the Indigenous in the Arguments for Reforming the Traditional Courts System in...

The Exogenous and the Indigenous in the Arguments for Reforming the Traditional CourtsSystem in MalawiAuthor(s): Christina JonesSource: Africa Spectrum, Vol. 32, No. 3 (1997), pp. 281-296Published by: Institute of African Affairs at GIGA, Hamburg/GermanyStable URL: http://www.jstor.org/stable/40174748 .

Accessed: 15/06/2014 06:25

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

.

Institute of African Affairs at GIGA, Hamburg/Germany is collaborating with JSTOR to digitize, preserve andextend access to Africa Spectrum.

http://www.jstor.org

This content downloaded from 62.122.76.45 on Sun, 15 Jun 2014 06:25:57 AMAll use subject to JSTOR Terms and Conditions

http://www.jstor.org/action/showPublisher?publisherCode=iaagiga

http://www.jstor.org/stable/40174748?origin=JSTOR-pdf

http://www.jstor.org/page/info/about/policies/terms.jsp


The exogenous and the indigenous in the arguments for reforming the traditional courts system in Malawi

afrika spectrum 32 (1997) 3: 281 - 296

Christina Jones

This article presents the internal ("indigenous") and the external ("exogenous") influences that shaped the discussion which led to a reform of the Malawi traditional courts system after the regime of President Banda came to an end. In the context of the debate on the possibilities of and limits on not only an "indigenous" legal system in an African country, but also the "indigenizing" of a legal system imported into that country, Malawi offers an example of an indigenization process that went wrong, but has tried to correct itself. It should be noted from the start that the word "endogenous" has not been used. Endogenous means simply growing from within. Even a cancerous growth can de- velop from within. "Indigenous" as a word has several nuanced meanings. It can mean living naturally in a particular environment. In this sense, it implies originating from a particular place. The word also implies purity, i.e. that which is found in un- adulterated form, not inducted from somewhere else. "Indigenous", however, is not the same as "endemic", which means peculiar to a certain place, not resembling something somewhere else. When these words are applied to a legal system, an "indigenous" system would mean that it could not be introduced from somewhere else, although it could resemble a system in another place; an "endemic" system, on the other hand, would not have a counterpart somewhere else. While these defi- nitions may appear theoretically logical, they contain an inherent flaw. For to have an "indigenous" system, one must establish precisely "where" a particular legal system or a particular legal rule was born. This is a very difficult task. Equally difficult to establish is "why" it was bom.

1 Sources of different socio-cultural perceptions of European and African law

Entering the sphere of historical context, we see that the task of defining what was an "indigenous" legal system was so difficult that there appears to have been little or no debate on this question when the Europeans implanted a legal system that they had inherited (with elements from antiquity) in African soil. The terms "indigenous" or "endemic" were not applied to the legal systems involved per se.

281



Christina Jones

They were applied foremost to the peoples and folk caught up in the colonial political web. The conquered folk in Africa were the "indigenous", better known as the "natives". Certain characteristics were assigned to them and these constituted the "endemic" nature of the "natives". As for the conquering Europeans, they were transplants not "indigenous" to Africa. They were "indigenous" to Europe and known - at least in the anglophone colonial world - as "born Englishmen". This starting point of differentiation derived from the European mind and was subjective and euro-centric (Ranger 1994:193, ftn.8). A more objective starting point of the differentiation in the European mind was missing. Such an objective starting point would have been the legal system perse, i.e. one could have asked, from where does the legal system (at a particular African place) originate? Is it indigenous? Is it endemic? Does it have similarities or not with other legal systems? How does the legal system compare to the origins of the imported legal system? Is the imported legal system indigenous or endemic to the country of origin of the conquerors? Is it important that a legal system is indigenous or endemic?

The subjective approach of the conquerors that resulted in applying the notion of "indigenous" to the people and not to the legal system is not surprising. It was in keeping - at least in the case of the anglophone conquests in Africa - with the "native born Englishmen's" own historical experience in their island of origin. They were a folk indigenous to the Isles but made subject to a ruler (William the Con- queror), who was indigenous to another land (Normandy). When they in turn became conquerors of other lands (Ireland, Isle of Wight), they too subjected "indigenous" folk to their non-indigenous rule. The law that came to be applied took on a schizophrenic character, in the sense of an almost unresolvable tension that does not name things as they really are. On the one hand there was the "indigenous" law already existing at the time of the conquest. This was deemed the law of the land. On the other hand, there was the imported law of the conquerors. This was associated with the person, but only one person, namely that of the political person of the king or queen, later known as the Crown. Due to various political reasons - including seizing land from the indigenous - the Crown was keen not to be bound by the "indigenous" law of the land, yet it could not ignore it completely for fear of undermining social stability. As a result of direct conflicts between the

"indigenous" law of the land and the Crown's laws, the Crown's courts - caught between the will of the Crown and their own judicial independence - transformed the "indigenous" law of the land into a concept of "immemorial custom", i.e. that which preceded the Crown and even perhaps the indigenous people themselves (!). This rule was a bulwark against the imposition of a particular rule of the Crown's imported laws. "Immemorial custom" was the only way indigenous law could protect itself from being totally obliterated by the imported "personalized" political law of the Crown.1

Over time as the number of "immemorial customs" dwindled, law became dis-

1 Case de Tanistry (1608) Davis (Irish Decisions) 29 and Earie de Darby (1598) 2 Anderson 116.

See Jones 1996.

282



Arguments for reforming the traditional courts system in Malawi

sociated by and large from the land per se. It became largely associated with the

political "person", whether the collective polity or the individual political ruler. In this

way law lost stability or immutability but gained flexibility. It lost stability in the sense that an "indigenous" law rooted in the land demanded obedience from who- ever came into the land. Once dissociated from the land, however, it gained flexi-

bility in the sense that the person/s who came into the land with political power could change the law and attempt to command obedience. The only other bulwark

against a run-away flexibility that developed alongside "immemorial custom" was the notion of equity. Equity was a very complex concept the characteristics of which

lay between immutability and political flexibility. It, like immemorial custom, was

originally designed to check the Crown's courts in case the latter were incapable of

doing justice because of corruption and powerful political influences on either the

judges or the juries (Martin 1989:5-6). Unlike immemorial custom, however, equity was not tied to a particular land. It was not indigenously or endemically immutable in the sense of particularity. It was an abstracted form of immutability that was rooted in "conscience, reason and good faith" ("Equity" in "Halsbury's Laws of

England" 1976), characteristics that were regarded as "innate" to human beings. Even when dormant, these characteristics could be awakened. Falling in this cate-

gory were a priori non-negotiable principles such as a party has a right to be heard and no one may be judge in her/his own cause, for jura naturae sunt immutabilia2 At the same time equity partook of the personal and political nature of the Crown's law. For decisions were also taken on the basis of the particular conscience and sense of justice of the presiding judge without regard to historical roots.3

Although hemmed to some extent by "immemorial custom" and equity, the personal and political nature of the law came to dominate. Its dominance was reflected in the juristic rhetoric of Savigny that a legal system reflects the spirit and soul of the people inhabiting a land (Rehbinder 1986:230). The personal nature of the law was further underscored just before the First World War by the legal sociologist Ehrlich:

"Dann bemerke ich, wie der Grundsatz der Personalität überall auch bei uns sofort wieder auflebt, wenn wir mit Völkern auf tiefer Stufe zusammenstoßen, so vor allem in den Kolonien. Die Engländer behandeln in ihren Kolonien jeden Europäer nach den im wesentlichen territorialen Grundsätzen des heutigen internationalen Privatrechts, also im allgemeinen nach englischem Rechte, dagegen die Eingebo- renen nach ihrem Personalrecht ... Dann frage ich die Hörerschaft, ob sie sich das auch nur vorstellen könnten, daß sie, wenn sie etwa im Gebiet eines Neger- stammes ihren Wohnsitz hätten, nun nach dem Rechte dieses Stammes beurteilt werden? Sie verstehen sofort, daß das unmöglich ist, und so wird ihnen die Per- sonalität des Rechts unmittelbar durch innere Erfahrung verständlich." (Ehrlich 1912, in: Ehrlich/Rehbinder 1967:76-77)

2 Day v. Savage (Hobart (1603-25) 86). 3 Martin 1989:6; Halsbury's, para. 1201, Diplock v. Wintle (1948) Ch 465, 481.

283



Christina Jones

1. 1 On the personalization of indigenous law in colonial Central Africa

Given the transformation of the "indigenous" law into "immemorial custom", on the one hand, and, on the other hand, the dissociation of the Crown and state law from the land and its being made a function of person and politics, it is thus not surprising that the British Crown upon conquering African lands wanted to be free as much as possible from being tied to a legal system endemic or indigenous to the coun- tries which it conquered. It narrowed the scope of the law "indigenous" to the particular African land in question to "immemorial" customs, though the "immemorial" character of the "natives'" customs was sometimes put in doubt, as the memory of custom reached back usually only two, maximum twelve generations (Wilson 1954:3,9,25,27).

The schizophrenic tension in the English jurisprudence between the "personal", i.e. political approach, and the custom indigenous to the land was carried over into the British colonial administrations. The Crown as the exogenous legislator took a personal/political approach in its legislation. It wrote, for example, in its Order in Council of 1902 for Central Africa that the administration had to be guided by the "native custom". This meant in effect not the "indigenous" law of the land, but the natives' custom. The law was attached to the person: "§20. In all cases, civil and criminal, to which natives are parties, every Court ... shall be guided by native law ...l<4 Personalization of indigenous custom was thus legislatively enshrined. The courts introduced by the British on the African continent, which could appeal as far as the Privy Council in England itself, tended, on the other hand, to adopt another approach. They tended to fossilize the "indigenous immemorial custom" as law of the land.5 The courts' attitude was closer to what was happening on the ground in villages. Each village settlement had within its physical land space its own variation of custom. Those who joined this space did not bring their own customs with them. They either accepted those of the village land space they joined, or left to make their own land space. The British administrators were so busy classifying persons according to personal physical features/ethnicity and undermining the African sov- ereignty over the land, that they deliberately missed applying their energies to defining the relation between village land space and African law (Jones 1996a).

Yet on one point the courts and the Crown stood on common ground, though they diverged in their practices. They both used the notion of equity to mediate between the plural sources of law, plurality being even more compounded in the colonies than in Britain because of the extreme personalization of the law (natives' law, Hindus' law, Muslims' law, Christians' law, etc. [Jones 1996]). The Crown used equity to expressly undermine the immutability of custom of the land by conditioning the application of natives' law on equity. The Orders in Council allowed the application of natives' law only if not repugnant to justice and morality.6 The highest

4 Order in Council of 11 August 1902, Laws ofNyasaland, Vol. II.

5 Hannigan 1961:1-9; Secy of State and Chariesworth, Pilling (1901) A.C. 373; Welbeck v. Brown

(1882) Sarbah's F.C.L 185 (Gold Coast). 0

Order in Council, 1902, §20.

284




court of appeal for the colonies, the Privy Council, however, did not shy away from

applying this yardstick of equity equally to "indigenous customs" as well as to the Crown's induction of exogenous law and administrative practices in the colonies. It

upheld, on one hand, the indigenous custom as a bulwark against executive interference by requiring evidence of an "original custom" or the original principles un- derlying a custom. It held that the custom would bind even the exogenous executive. On the other hand, the "indigenous" custom was not safe from being hatched by the court's innate sense of equity. If the custom were immoral, unjust, "barbaric", then the courts could use equity to strike it down. In that case the custom became null and void. The court, however, refused to decide what a just moral custom then would be. Either the custom was acceptable as just or rejected. How the custom was to be changed or replaced to fit the criteria of good conscience and morality was left to the indigenous community. Such a position in effect was leaving the community a certain liberty to decide what to do: to drop the particular rule of custom; to determine the abstract purpose or ratio of the nullified rule of custom, then re-clothe the practice or execution (to make the custom more "mild", in the words of the Privy Council8); to adopt a fully other rule; or to resist the exogenous nullifica- tion. Such a position forced equally the exogenous political power, the Crown, to go through a similar process of rethinking how far it could deviate from the indigenous motherland's rules of order and justice.

2 Preparation for independence

2. 1 Use of restatements of custom to reenforce extreme flexibility of the indigenous custom

Even after World War I, when the die was cast for preparing the colonies for auton- omy, the tensions between exogenous law, indigenous custom, and equity, and between the courts and the executive remained unresolved. The British executive decided by and large to go the way indicated by the Privy Council and started em- ploying anthropologists to inform them about what was exactly "indigenous" or "endemic" about Africans' customs (Hamnett 1977; Malinowski 1961:61-62). Train- ing courses for chiefs in local administration and local government were introduced. Jurists began writing the famous projects of restatements of customs, an attempt to write down the oral indigenous custom (e.g. Ibik 1971). The method used was "scientific", no special attempt being made to define whether there was a particularly "indigenous" method of determining indigenous law.

The restatement deviated from the intentions of the Privy Council to introduce a

7 Eshugbayi Eleko and Officer Administering the Government of Nigeria (1931) A.C. 662, 670. In

conformity, Hassan bin Ame Shirazi v. Suheil bin Kirobo, 7 Z.L.R. 112 (1950) (Zanzibar). CfNyasulu, Nov 1993:9. 8

(1931) A.C. 662, 673.

285



Christina Jones

certain stability in indigenous custom in that it was warned that the restatement was not a statement of the "immemorial, immutable indigenous" customs of the land. It was a statement of "contemporary" custom, as affected by the court decisions and practices that grew up in reaction to the exogenous colonial political system. It was not intended to be an historic study reaching deep into history to uncover age-old customs inherent in the land (Allott 1971). For it rested on the implicit presumptions of the exogenous Orders in Council, namely, African laws are indigènes' customs, tied to the personality of the "native" not the land. When the "native" changes her/his personality, so changes also her/his custom. Indigenous custom was assigned in effect a flexibility in the extreme. As one jurist put it, tradition is "just a way of life - a practical adjustment of conflicts ... with a view to achieving harmony ..." (Chimango 1975:22) And as one traditional court judge explained in a case in which the traditional rules of divorce were not applied to a "love marriage", because the parties no longer acted like Ngonis, he did not apply the customs to them (Jones 1996a:370, ftn. 68). Thus, even the modern post-independence jurists adopted a construct of custom that avoided re-rooting custom in landed space.

What was absent from the preparations for equipping the colonies for independence was a reflection on whether there was a particularly immutably indigenous or indigenously equitable way of deciding when a custom was to be expunged from the land or reenforced in order to control politics or to be modified then legally recognized (Jones 1996:247-248). Nor was there reflection on to what extent custom permitted an individual person to unilaterally remove her/himself from the weight of custom and whether custom differentiated between such an individual and a group redefining its customs once it moved away to another settlement.9 Finally, despite Malinowski's dire warnings (Malinowski 1961 :56ff, 64), problems of enforcement of custom, whether immutable or contemporary, i.e. how custom had dealt with enforcement over large areas through ritual or police or witchcraft, and how the judiciary's decisions were to be enforced in the absence of modern infrastructure, were left for the independent governments to solve.

The answer to the question why these issues were not specifically addressed may lie in the very "scientific method" used to understand and restate custom. The scientific method used was that of abstraction. No special attempt was made to define whether there was a particularly "indigenous" method that could have been used. The abstraction was already a repeat of what had happened in Europe. The abstract method derived actually from Roman law that had infiltrated European laws and had served to deprive the latter of much of their indigenous character. The process that Ehrlich observed for Europe applied equally to Africa:

"Je mehr aber die Entscheidung ihres konkreten Inhalts entleert, je mehr sie ab- strakter und allgemeiner wird, um so mehr verliert sie auch ihre nationale Ei- genart: sie wird schließlich auch für ein andres Volk und ein andres Land an- wendbar." (Rehbinder 1986:230-231)

9 Otieno vs. Ougo et ai, Court of Appeal, Nairobi, Civ. Appeal 31/1987.

286




In other words, the Africans were being prepared for joining the world of abstract law. Abstraction as such is not bad. It can in fact be quite useful as a means of fa- cilitating communication. This demands, however, several pre-conditions to be suc- cessful: First, the partners communicating regard each other's societies and institutions as equals. This has not been the case in regard to African law. The latter has been regarded as primitive and still having a long way to "evolve". Second, the comparative questions put have to relate to matters of principle, e.g. marriage is not just a tie dignified by law, but a responsible sexual relationship. The task then is not to define "marriage", but to define "responsible". Third, it has to be determined whether there is evidence of pre-colonial customs of the land that may have been actually compatible with exogenous notions of equity, but which changed to meet the interests of only certain men wanting to protect themselves as a reaction to the exogenous rule and in the process of change became inequitable. Chanock's valuable message that the indigenous invented their own customs when informing the colonials of local rules hints at this, but evidence of the actual pre-colonial customs is thin (Chanock 1985). Fourth, persons practicing the indigenous customs will have to be motivated to ask themselves whether their legal system as a practical way of restoring harmony is so flexible that exogenous notions of equity can be incorpo- rated into the custom bv wav of careful Dhrasina and analoaizina.

2.2 Africanization of personnel not of institutions

On the very eve of political independence (which was dangerous without economic independence, as Malinowski had pointed out earlier [Malinowski 1961]), the men- tal patterns of the colonial era did not change. Indigenization was still personalized. Pre- and post-independence indigenization meant largely replacing one set of personnel with another set. One put African indigènes in the jobs of "born Englishmen". This was the so-called "Africanization" process. Specifically in Malawi President Banda was famous for a remarkably slow Africanization, as compared to his neigh- bour President Nyerere. The African who replaced the English colonial did not "indigenize" the institutions left behind by the colonials, such as the High Court, the Attorney General's Office, legal counsel. Rather the exogenous institutions implanted on African soil abstracted the African personality. This process of abstraction allowed the African to cease to be an African. The African man or woman could qualify to fall under the exogenous legal system. This is the so-called "lifestyle" test. By the same token an European cannot cease to be European and become subject to "indigenous" African law. Even today hardly anyone questions European investors' demands for reforming the indigenous land law system so that they may have security of tenure and individual property. It is hardly demanded of the investors to consider adapting themselves to the indigenous standards. The lack of imagination on the part of the European investors entering African lands as to how

10 E.g., Judicature and Application of Law Ordinance, Cap. 453 (Tanzania); Civ. Case 240/94 of

15/09/94 (Mzimba) on divorce decree against Christian marrying polygamously.

287



Christina Jones

they can express their expectations and achieve their aims in terms of the African indigenous has not changed since Eugen Ehrlich confirmed more than 80 years ago that it is impossible to imagine that a European submits to the African indigenous custom. (Ehrlich 1912, in: Ehrlich/Rehbinder 1967)

3 Malawi's attempts to go "native"

It was the same lack of imagination that eventually enabled an abusive political use of the indigenous in Malawi by President Banda. Although President Banda was quite careful not to subject the British personnel and companies marketing the valuable tobacco products to "indigenization", he ran afoul of the High Court, however. He decided for highly political reasons rather to isolate the exogenous from the indigenous in a way that was far more consequential than the colonials had done. In a way he was carrying the exogenous legal schizophrenia that has been inducted during the colonial era to its extreme logical conclusion. He was inheritor of the position of the Crown, representing a personalization and politization of the law. His opponent was the High Court, representing the immutability of law. He dissociated then the lower courts from the supervision of the "immemorial custom" of the land to obtain a more personalized and politicized natives' law. Banda had Par- liament enact a series of acts that established the traditional courts.11 The rhetorical aim of the system was noble: "to enable Africans to be associated in the fullest de- gree with the administration of local affairs 'through the medium of their own insti- tutes' ". (Nzunda, M. n.d.:2) The "indigenous" became the "traditional". Traditional sounded less primitive than native or indigenous. Twenty years later, however, tradition has been pronounced also tainted. It is now regarded as a political invention entailing a certain illusion of longevity and stability, but custom is still regarded as more stable because custom means precedent, and deviation from precedent re-

quires careful weighing and consideration of facts and principles (Hobsbawn/Ranger 1983:2).

The traditional courts system consisted of lower courts culminating in the National Traditional Appeal Court with civil and criminal jurisdiction over Africans, including imposition of the death penalty according to the substantial, evidential and

procedural traditional law, the essence of which was to make penal convictions without consideration of the rules of excluding hearsay or confessions and proof beyond a reasonable doubt (Nzunda, C. M. S. n.d.:3-4). This system was put on a

par with the exogenous system of magistrates courts culminating in the High Court and the Supreme Court of Appeal having jurisdiction over statutory law. The two

systems - indigenous and exogenous - ran parallel to each other. This contrasted with the prior system in which the High Court had universal jurisdiction and super- visory power over all lower courts, whether traditional or exogenous and exercised this power independently of the executive and legislature.

11 Traditional Courts Act, Cap. 3:03, 1962, 1969, 1970, 1971.

288




It was precisely "tainted tradition" that was the hallmark of the traditional courts system under Banda. Its special features were firstly control by the executive and secondly prohibition of legal counsel. The executive watchdog created by Banda to supervise traditional courts was the office of the Chief Traditional Courts Commis- sioner within the executive branch of the Ministry of Justice.12 Any applications for transferring a criminal case from the traditional courts to the High Court on the ground that the accused wanted to be represented by counsel were possible only with permission of the Ministry. It became common knowledge in Malawi that lawyers saw no point in asking for transfers or challenging the rules of transfer.13

Executive interference in the workings of the court was widespread and thor- ough. The court inspectors had all received training at the Government's administrative school in basic traditional law and the principles of exogenous English law, but were not trained lawyers. Their standard of education and literacy was much higher than that of the traditional chairpersons and assessors nominated by the local political party branch to preside over court proceedings. The inspectors' loyalty to the Government party went unquestioned. The only trained lawyer in the traditional courts system was the lawyer appointed to sit with the National Traditional Appeal Court. By 1993 there were over 3 000 persons employed in the traditional courts system. In terms of the public served by these courts and inspectors, they served the majority of the population in Malawi, especially those in rural areas, learned in various degrees in their oral traditions and laws, but not being in a position to have access to the literate medium of the High Court without a lawyer.

The inspectors, expected to travel at regular monthly intervals to the "bush", can be said to have continued the work of the British colonial District Officers. The inspectors saw themselves in the role of educating the indigenous people in their own indigenous laws, in equity and procedure. The Chief Traditional Courts Commis- sioner issued circulars advising traditional court chairpersons of "natural justice" evidential and procedural rules. In penal matters cases were tabled before the Commissioner for confirmation of sentence.14 This was made possible only because the inspectors had identified individual judgments of court chairpersons which they regarded as involving a miscarriage of justice. The inspector could sug- gest a solution, e.g. having the case transferred to another court for rehearing, or quashing the order and having another reissued, even to the point of setting orders aside and acquitting a criminal defendant.15 In addition the inspectors had to review all complaint books, summons and court fees records, and recorded judgment books; settle personnel problems such as travel allowances and backlogs in salary payments from the central government; supervise repairs of tin roofs for court per-

12 Traditional Courts, Cap. 3:03, §25, 26, 32. Advocate G. Kaliwo, Blantyre, Dec 1993, whose client was a policeman charged with a murder

in which it was alleged that a high politician was involved (Central Region, Traditional Court, no file number given); Weekly Mail, Dec 10, 1993, Vol. 1. No. 8. "Was Mlombwa alone?", p. 1. 14

E.g., State vs. D.M., etc., Crim. Case 96/94, Mzuzu Traditional Court. 1S

Inspection Report, Mzimba, 19 Apr 1994, Circular of the Chief Traditional Courts Commis- sioner, Lilongwe, 16 Jul 1982.

289



Christina Jones

sonnel housing; order more stationary and forms (when available, but when the shortage was so acute the summonses had to be written on the spaces left on the paper already used for past judgments and orders); look after the general upkeep of the courthouse and cell for prisoners (such as finding in the nearest village a carpenter to repair a window broken by the accused breaking out of the cell); order sufficient rain capes in the rainy season and new uniforms and bicycle parts for the court messengers, who often felt they lost a certain dignity when delivering summonses on foot, wearing frayed uniforms or arriving soaking wet in the rainy season for lack of a raincoat.16 These were the problems of running a traditional court system for the indigenous on the ground level with exogenous infrastructure expectations. These were the odds many a good-natured and diligent inspector tried to overcome. Whether one could have gotten legally trained lawyers prepared to do the same work is a question which future "indigenization" programmes will have to answer.

The tight executive control over the traditional courts system cannot be said to have derived necessarily from "indigenous" custom of the land. The origins of this executive control and relinquishment of the High Court's ideal of a judiciary independent of personalized and politicized law have their long roots in the western legal tension and pragmatic roots in the lack of imagination of a British judge on the High Court.

The tragic story of Banda's repressive use of the criminal jurisdiction of traditional courts to get rid of political opposition started with witchcraft murders (Brietzke 1974). In the case of R. v. Nakulenga, Cr. Case 73/1969, five were accused of having committed ritual murders. They were represented by counsel. The case was heard in the High Court. The Court acquitted the accused for lack of con- sistent evidence. The Court ruled that no reasonable jury would have possibly convicted the accused. The Government of Malawi was incensed over the verdict, lay- ing the blame on the technicality of exogenous English procedural law and the wiles of lawyers. Banda called for the introduction of traditional courts that would have done justice by convicting the accused. The Attorney-General at the time, a British citizen and confidant of Banda, opposed the introduction of the traditional courts with criminal jurisdiction. As a compromise he proposed that the High Court sit with

jurors drawn from the "indigenous" population. A test case was brought but the High Court judge at the time refused a request for jurors. The fronts hardened with the result that the traditional courts were called into life. Five British justices of the High Court resigned. The traditional courts were instituted. They held another trial in-

volving persons in the same murders and convicted them (Brietzke 1974). The then Attorney-General regretted very much the refusal of the High Court to reach a com-

promise so that the exogenous and the indigenous could be made compatible.17 The proposal would have resulted in keeping the High Court as the ultimate appel- late instance for traditional courts, and the jury would have been a way to integrate

16 Inspection Report, Mzuzu, Sep 1987, Jan 1988. Sir Bryan Roberts, 2 June 1994, London.

290




the Malawian traditions with the English traditions. He had thought that members of the jury steeped in their own customs would have been better able to judge the credibility of witnesses and circumstantial evidence involving rural conditions that a High Court judge, whether of African or European origin, may not necessarily be able to appreciate.

While the refusal of the High Court judge revealed a lack of imagination, the attitude is not surprising. It was not uncommon for High Court judges in the colonial empire to reject juries composed of the indigènes. Racist considerations were at stake. Having an European defendant judged by an indigenous jury was not in keeping with the white man's burden and it was equally an anathema to English doctrines of equality before the law to have juries composed along lines of skin colour depending on the skin colour of the defendant. So the better solution was not to have them at all. The very early colonial experience in India shows how unwieldy juries could be if no one group was to be offended. When, for example, an English- man was tried in 1670 for murdering a Portuguese Indian, a jury was set up with 12 Portuguese Indians and 12 Englishmen (Fawcett 1934/1979:37).

Already in the 1950s in Malawi, about ten years prior to the witchcraft murders, the then highest court of appeal had had problems with the technicalities of asses- sor criminal trials. The then Rhodesia and Nyasaland Court of Appeal had split on the question of whether a defect in the selection of jurors or assessors could be cause for upsetting a verdict of murder.18 The High Court of colonial Malawi (Nyasaland) sitting with assessors (advisory) had convicted the accused of murder. The accused, represented by an administrative officer, had appealed on the ground that the assessors were irregularly appointed. The assessors' role was to assist the court on the evidence and "by their knowledge of the custom of their own people". The case was likened to that of a murder trial with jurors under English law, although trial by jurors (with binding powers on the judge) in Nyasaland had been abolished in 1949 because jurors had been limited to only non-Africans. After the conviction it was discovered that two of the assessors were not on the list of persons approved for selection and liable to serve. The majority on the Court of Ap- peal, including the justice from Nyasaland, held that the defect was not serious enough, especially since on the evidence the High Court would have reached a verdict of murder even without assessors. The appeal was dismissed. One British justice, from Rhodesia, dissented. An improperly constituted court was a nullity. It had to be taken into account that the accused had not had a lawyer to detect the nullity at the time of trial. Such precedent complications tended to discourage the High Court of independent Malawi to be open to ^introducing trial with jurors.

This attitude contrasted with the use of jurors in an internationally renowned witchcraft murder trial in Ghana in the 1940s, of which Banda was undoubtedly aware. The murder of one of the chiefs charged with protecting the stool of one of the most powerful contending kings for political control in competition with the democratic forces had great political consequences. Represented by counsel, eight

18 Bisiasi v. R., 1923-60 ALR Mai. 265

291



Christina Jones

persons, including the prime minister of the chief, were tried, convicted and sen- tenced to death for ritual murder in a trial in the High Court with a majority of African Ghanaian jurors (Rathbone 1993).

4 Post-Banda discussions on legal reform

After it was clear that Banda would have to call multiparty elections (Commonwealth Secretariat 1994), a series of consultations took place on reform-

ing the judicial system. The old arguments on how to combine the "indigenous" and the "exogenous" remained at the heart of the discussions. The terminology was no

longer in terms of equity, conscience, morality, and civilization. The new termino- logical parameters spoke of ("civilized") human rights and international standards. This is a variation on the colonial use of equity, the concept still being that each human regardless of bom origin is bom with an innate sense of what is a right that

dignifies every human being. How these standards were to be put in terms of

analogous indigenous concepts again were lost in the discussion. Nonetheless, I shall attempt to show how some of the basic reforms could have been reconciled with some of the indigenous pre-colonial customs.

4. 1 Terminating executive control of the judiciary

It was clear to all the lawyers, magistrates and law teachers involved in the consultations that the traditional courts had to stay, but the executive control had to be

replaced with that of the independent judiciary. The traditional court staff and in-

spectors were simply to be brought under the judicial services administration of the

High Court. The names of the traditional courts and their staff were to be changed, but the same persons basically retained (Nyasulu Dec 1993: Appendix 2, para. 3.3). The former Chief Traditional Courts Commissioner, once having been trained as a lawyer, could become Registrar of the High Court responsible for the renamed tradition courts (Nyasulu Dec 1993: Appendix 1, para. 15.7). A separation of judiciary competence from a personalized and political capacity has been a hallmark of the indigenously rooted customs of Malawi. Many a chairperson of the traditional courts presiding under the Banda regime descended from families with a long line of experts on customs of the land to whom the chiefs entrusted decisions (Jones 1996a:364). Admitting women to the court's chair would not be difficult in the matri- lineal societies, but for the more patrilineal societies, a woman from a leading family would probably have to prove her competence in questions concerning the customs of the land.

Equally tied to guaranteeing delivery of justice through an independent judiciary was legal representation. The discussion revealed a tension between the international demands relating to access to lawyers under the Havana Principles on the

292




Role of Lawyers. 19The experience of the lawyers assigned to the old National Tra- ditional Appeal Court made this point especially controversial from the point of view of social conflict and notions of "civilization". Socially the lawyers tended to be much younger than the customary chiefs presiding. This implies that older lawyers of the same generation of the chiefs would make an effective difference. In terms of the perennial problem of "civilized" versus "primitive and evolving", the lawyers felt frustrated in trying to convey lucidly to "semi-literate elderly people" principles of disregarding hearsay evidence, which even law students find difficult to grasp. Per- haps a lucid history of its development and the difficulties which even the anglo- saxon judges who developed this rule have had in its application would facilitate an "indigenization" of the logic of such a rule (Nyasulu Dec 1993:24). It was concluded, nonetheless, that the right to counsel is crucial only in criminal cases and as criminal procedure involves more exogenous complexity than civil matters, it could be recommended that counsel be barred from the lower courts applying the indigenous complexities of civil law.

In order not to have an abrupt break with the customary social perceptions of what is sufficient for a conviction, it was recommended that the Magistrates Courts be given exclusive criminal jurisdiction, which should sit with assessors (Nyasulu Dec 1993: para. 2.3). The role of jurors, whose role would be more binding on the magistrates, was not discussed. The role of peers alongside the role of customary lay judges in sentencing was also neglected. Given the long historical role of witchcraft in various criminal offences (even civil, e.g. in divorce cases) (Schoffeleers 1992), a discussion on the merits and demerits of having jurors alongside the right to counsel was surprisingly lacking. It may be due to the delicacy of the topic of witchcraft among the educated. The practicing of witchcraft and the profession of witchfinder remains prohibited for the African community, but the Catholic profession of spirit exorcist is presumably allowed (Cap. 7:02). Yet the social importance of witchcraft requires a rethinking on whether having jurors regarded as indigenously competent in such matters should be integrated into the criminal and civil processes involving evidence of witchcraft.

In the consultations there were complaints voiced that the customary law had remained "underdeveloped" during Banda regime (Nyasulu Dec 1993:30), presumably because it did not have the benefit of being reformed by the High Court's use of equity. Yet during the Banda era it was noted (Chimango n.d.:6) that the Na- tional Traditional Appeal Court was applying commonsense rather than custom in contractual matters. Even the statute prohibiting witchcraft was applied by the re- gional traditional courts. Forced levirate marriages were found to be prohibited under the customs, which allowed a woman to specify with bundles of sticks whether she wished to marry from within her deceased husband's family or to marry some- one from without.20 A childless divorced woman was also found to have a right under custom to retain part of the lobola (marriage payment) especially because she

19 Kalaile Oct 1993, citing Eighth UN Congress on the Prevention of Crime and Treatment of Offenders, Havana, 27 Auq - 7 Sep 1990 and General Assemblv Resolution 217 A (III). 63. 20

Civ. Appeal 57/1986 (Chitipa), National Traditional Appeal Court.

293



Christina Jones

is worn out and no longer fresh as at the start of her marriage (even as short as 7 years).21 The court even noted that the custom as evidenced in songs was not as absurd as the English law - as applied by the Malawian High Court22- that prohibited a divorcee housewife from having rights to the matrimonial home or cattle.23 When it came to recognizing as valid a number of marriages concluded without the customary consent of the parents or marriage guardians, the National Traditional Appeal Court and local traditional courts differed (Chimango n.d.:3). The latter tended to recognize them, the former not. The basis of recognition was equity.24 Even the National Traditional Appeal Court did not dispute the repugnancy principle. Its application of custom was conditioned on its being not repugnant to morality.25 The consultations did not include a discussion about the future of the use of equity to control custom nor how the progressively interpreted indigenous customs could be sustained and used to reform the more conservative High Court (e.g. on division of matrimonial property). A future indigenization of equity will involve a comparison of exogenous with indigenous equity, whether the standard set in 1931 by the Privy Council should be modified, and whether the use of constitutional human rights standards for striking down customs will result in local authority or national legislation deciding what is to replace the custom or whether the commu-

nity decides. An essential part of this discourse is a more concerted effort to recon- cile custom and equity or constitutional/human rights standards by an intensive search for analogies.

4.2 Conclusion

The parameters set by the British colonial rule and legal tensions which were imported remain essentially unquestioned or undebated in the reform process in post- Banda Malawi. For that reason alone they shall continue to have force. The indi-

genization of the law has again been postponed.

Bibliography

Allott, A. N. (1971), "Introduction", In: Ibik, J. O. (1971), "Restatement of African law, Malawi", Vol. 2, London, Sweet & Maxwell.

Brietzke, Paul (1974), "Murder and manslaughter in Malawi's traditional courts", Journal of Afri- can Law 18 (1974) 1: 37-56.

21 Civ. Appeal 13/1988 (Karonga), National Traditional Appeal Court. 22 Tabula v. Tabula, Civ. Cause 1/1985. 23

Civ. Appeal 61/1986 (Machinga), National Traditional Appeal Court; Civ Appeal 41/1986

(Blantyre), National Traditional Appeal Court; Jones 1996a:369. 24 Civ. Appeal 40/1992 (Liwonde), National Traditional Appeal Court. 25

Civ. Appeal 41/1986 (Blantyre), National Traditional Appeal Court.

294




Chanock, Martin (1985), "Law, custom and social order. The colonial experience in Malawi and Zambia", Cambridge, University Press.

Chimango, L. (1975), Tradition and traditional law, the role of the National Traditional Appeal Court", Lecture, Zomba, University of Malawi, May 21st.

Chimango, L. J. (n.d), "Recent conflicts in traditional courts law", Zomba, University of Malawi.

Commonwealth Secretariat (1994), "The report of the Commonwealth observer group, the par- liamentary and presidential elections in Malawi, 17 May 1994", London, Commonwealth Secre- tariat.

Ehrlich, Eugen (1912), in: Ehrlich, Eugen/Rehbinder, Manfred (ed.) (1967), "Recht und Leben", Berlin, Duncker & Humblot.

Fawcett, Chartes (1934/1979), The first century of British justice in India: an account of the court of judicature at Bombay, established in 1672, and of other courts of justice in Madras, Calcutta and Bombay, from 1661 to the latter part of the eighteenth century", Oxford (1934), Aalen (1979), Scientia Vertag.

"Halsbury's Laws of England" (1976), Vol. 16, 4th Edition, London, Butterworths.

Hamnett, Ian (ed.) (1977), "Social anthropology and law", London, Academic Press.

Hannigan, A. St. J. (1961), "Western law in primitive societies", Comparative Studies in Society and History 4 (1961) 1: 1-9.

Hobsbawn, Eric/Ranger, Terence (eds.) (1983), "The invention of tradition", Cambridge, Univer- sity Press.

Ibik, J. O. (1971), "Restatement of African law, Malawi", Vol. 2, London, Sweet & Maxwell.

Jones, Chris (1996), "Indian roots of equity as a method for reforming law: was export of English law to African colonies illegal?", Droit et Cultures (1996) 2: 243-258.

Jones, Chris (1996a), "Rezeption europäischen Rechts in Malawi und Botswana: Die Rolle der afrikanischen Informanten, Richter und Rechtsassessoren", Verfassung und Recht in Übersee 29 (1996) 3: 347-374.

Kalaile, J. B. (Oct 1993), "Appraisal of traditional courts in Malawi", Lilongwe, High Court.

Malinowski, Bronislaw (1961), "The dynamics of culture change: an inquiry into race relations in Africa", New Haven, Yale University Press.

Martin, Jill E. (1989), "Hanbury and Maudsley [on] modem equity", London, Stevens and Sons.

Nyasulu, I. N. K. (Nov 1993), "Towards a single hierarchy judicial system", in: Nyasulu, I. N. K. (compl.) (Nov 1993), "Restructuring traditional court [sic]", Consultation, Zomba, University of Malawi.

295



Christina Jones

Nyasulu, I. N. K. (Dec 1993), Towards a single hierarchy judicial system (Proposal)", Consulta- tion, Lilongwe, High Court of Malawi.

Nzunda, C. M. S. (n.d.), "Justice according to Africans of Malawi", mimeo notes.

Nzunda, M. (n.d.), "Judicial review of decisions of traditional courts in Malawi, Zomba, University of Malawi.

Ranger, Terence (1994), "African identities: ethnicity, nationality and history. The case of Mata-

beleland, 1893-1993", in: Heidrich, Joachim (ed.), "Changing identities. The transformation of Asian and African societies under colonialism", Berlin, Das Arabische Buch.

Rathbone, Richard (1993), "Murder and politics in colonial Ghana", New Haven, Yale University Press.

Rebinder, Manfred (ed.) (1986), "Eugen Ehrlich, Gesetz und lebendes Recht", Berlin, Duncker & Humblot.

Schoffeleers, J. Matthew (1992), "River of blood. The genesis of a martyr cult in southern Malawi c. A.D. 1600", Madison, The University of Wisconsin Press.

Wilson, Godfrey and Monica (1954), 'The analysis of social change. Based on observations in Central Africa", Cambridge, University Press.

Zusammenfassung

Der vorliegende Beitrag zeigt auf, wie in Malawi über interne (indigenous) und externe

(exogenous) Einflüsse ein flexibles personalisiertes Gewohnheitsrecht entstand. Auch die Dis- kussionen nach dem Ende des Banda-Regimes, die zur Reform des traditionellen Rechtswesens

führten, wurden noch durch dieselben Kräfte beeinflußt. Die Entwicklung in Malawi bietet ein

Beispiel für einen fehlgeschlagenen Prozeß der Indigenisation im Rechtswesen: Zwar wurde

versucht, Mängel zu beheben, die koloniale bzw. westliche Prägung - unabhängig von seinem

gesellschaftlichen Entstehungszusammenhang importiertes Gewohnheitsrecht - wurde jedoch nicht wirklich in Frage gestellt, und eine gründliche Debatte darüber, auf welche Weise und

durch welche gesellschaftlichen Kräfte traditionelles Recht verändert werden kann, wurde nicht

geführt.

Résumé

Cet article analyse les influences internes ("indigènes0) et externes ("exogènes") sur la formation d'une loi indigène très flexible. Ces mêmes forces sont présentes dans la discussion sur une réforme des tribunaux traditionnels après la chute du Président Banda. Malawi est un exemple d'un procès d'indigénisation non réussie. Malgré les corrections apportées, le défi majeur qui réside dans les conceptions coloniales occidentales dissociant la coutume de son environnement

social ne fut pas relevé. De même, la question de savoir, qui a l'autorité de changer la coutume

et comment, ne fut pas débattue.

296



Date post:	20-Jan-2017
Category:	Documents
Upload:	christina-jones
View:	212 times
Download:	0 times

The Exogenous and the Indigenous in the Arguments for Reforming the Traditional Courts System in...

Documents