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Criminal Law in Internal Conflict of Laws in Malaŵi

Published online by Cambridge University Press:  28 July 2009

Matembo Nzunda
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Extract

Malaŵi has two sets of courts which run completely parallel to each other. One set forms the Judicial Branch of the Government and consists of magistrates’ courts (which have original civil and criminal jurisdiction only), the High Court (which has unlimited original and appellate civil and criminal jurisdiction) and the Supreme Court of Appeal (which has original criminal jurisdiction for contempt of court but otherwise has appellate civil and criminal jurisdiction). The Supreme Court of Appeal is a final appellate court in this set of courts. These courts are here called Received Courts because they apply the received (English) common law as the basic law.

The other set of courts is a section of the Ministry of Justice (which is part of the Executive Branch of the Government). The set consists of Traditional Courts of Grades A and B, the Traditional Appeal Courts (which hear and determine appeals from Traditional Courts of Grades A and B), District Traditional Courts, Regional Traditional Courts and the National Traditional Appeal Court (which hears and determines appeals from Traditional Appeal Courts, District Traditional Courts and Regional Traditional Courts). The civil and criminal jurisdiction of Traditional Courts is set out in the warrant establishing the Court and is supplemented from time to time by published ministerial orders under the authority of the Traditional Courts Act (the 1962 Act). The National Traditional Appeal Court is a final appellate court in this set of courts.

Type
Research Article
Information
Journal of African Law , Volume 29 , Issue 2 , Autumn 1985 , pp. 129 - 146
Copyright
Copyright © School of Oriental and African Studies 1985

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References

1 Ss. 12(b), 13 of the Traditional Courts Act, 1962 (cap. 3:03, 1968 Revision) (the 1962 Act).Google Scholar

2 Cap. 7:01 (the 1930 Code).

3 Cap. 8:01 (the 1968 Code).

4 GN 175/1962 (the 1962 Rules).

5 S. 371 of the 1968 Code.

6 Cheshire and North's Private International Law. 10th Ed. (London: Butterworths, 1979), pp. 3, 7.Google Scholar

7 Nzunda, C. M. S. “A Reflective Note on Kuweluza v. Republic of Malaŵi” (1982) 9 Journal of Social Science 122–129.Google Scholar

8 Criminal Appeal Case No. 5 of 1983 (unreported).Google Scholar

9 S. 9 of the 1962 Act: “Subject to this Act, every Traditional Court shall have and may exercise criminal jurisdiction to the extent set out in it's warrant. Such jurisdiction shall extend to the hearing, trial and determination of all criminal charges and matters in which the defendant is an African and is accused of having, wholly or in part within the jurisdiction of the court, committed or been accessory to the committing of an offence.”

10 S. 10 of the 1962 Act.

11 S. 9 of the 1962 Act.

12 S. 2 of the 1962 Act.

13 P. 709 of the transcript.

14 Cf. In re Bethell (1888) 38 Ch. D 220 where, however, English domicile was retained.Google Scholar

16 See Mudaliar v. Kayisi (1964) 3 ALR Mai. 103.Google Scholar

17 S. 15(b) of the Malaŵi Independence Order, 1964.Google Scholar

18 Allott, A. N.New Essays in African Law (London: Butterworths, 1970), pp. 138–141, 184–190.Google Scholar

19 Ibid., p. 190 and fn. 12 at p. 196.

20 S. 12(b) of the 1962 Act.

21 S. 13 of the 1962 Act.

22 See The Regional Traditional Courts (Criminal Jurisdiction) Order, 1976 (GN 167/1976).

23 S. 66 of the 1968 Code.

24 Rep. v. Laycock & Another, Criminal Case No. 6 of 1980 (High Court) (unreported) Skinner, C. J. at p. 2 of the transcript.Google Scholar

25 In England see the following articles by Hirst, Michael: “Territorial Principles and the Law Reform Commission” [1979]Google ScholarCrim, L. Rev. 355; “Jurisdiction over Cross-Frontier Offences” (1981) 97 L.Q.R. 80Google Scholar; and “The Criminal Law Abroad” [1982] Crim. L. Rev. 496Google Scholar.

26 S. 66 of the 1968 Code.

27 S. 38(3) of the 1930 Code (treason) and S. 6 of that Code (theft by a public servant).

28 P. 709 of the transcript.

29 GN 167/1976 (see n. 22).

30 P. 710 of the transcript.

31 Cf. Lufazema v. Rep. (1967) 4 ALR Mai. 415 at 418–419.Google Scholar

32 S. 21(b) of the General Interpretation Act, 1966 (cap. 1:01, 1968 Revision).

33 S. 66 of the 1968 Code.

34 Ss. 67, 68 for the High Court and s. 35 of the Courts Act, 1958 (cap. 3:02, 1968 Revision) for magistrates' courts.

35 S. 4 of the 1968 Code.

36 S. 32(1)(b)of the 1962 Act.

37 S. 32(2) of the 1962 Act.

38 S. 32(6) of the 1962 Act.

39 Rep. v. Chirwa & Chirwa, Criminal Case No. 46 of 1982 (SRTC) (unreported).Google Scholar

40 Kuweluza v. Rep. (see n. 7); Kakhobwe v. Kakhobwe, Civil Appeal Case No. 102 of 1982Google Scholar and see Nzunda, C. M. S. “Jurisdiction and Choice of Law Problems Surrounding a Foreign Customarym Law Marriage” (1983) 4 University of Malawi Students Law Journal 15 and Chirwa & Chirwa v. Rep. (see n. 8).Google Scholar

41 Per Mr. Hall, (Chief Secretary), Proceedings of the Nyasaland Legislative Council, 6 06, 1933, p. 4.Google Scholar

42 P. 711 of the transcript.

43 Ibid.

44 S. 12(d) of-the 1962 Act.

45 Proposals for the Republican Constitution of Malaŵi (Zomba, Malaŵi; Government Printer, 1965).Google Scholar

46 Ibid., p. 12 (my emphasis).

47 S. 15 of the Republic of Malaŵi (Constitution) Act, 1966 (the 1966 Act), replacing s. 83(1) of the 1961 Nyasaland (Constitution) Order in Council, and s. 15(a) of the 1964 Order. S. 15 of the 1966 Act, provides: “Until Parliament otherwise provides, the civil and criminal jurisdiction of the Supreme Court of Appeal, the High Court and of all subordinate courts (including Traditional Courts) shall, subject to this Act and any law in force in Malawi, be exercised in conformity with the existing laws and the substance of the common law and the doctrines of equity.”

48 S. 12 of the 1962 Act: “Subject to this Act, a Traditional Court shall administer—(a) the provisions of any Act which the court is by or under such Act authorized to administer; (b) the provisions of any law which the court may be authorized to administer by an order of the Minister made under section 13; (c) the provisions of all rules, order, regulations or ‘by’-laws made under the Local Government (District Councils Act) and in force in the area ol trie jurisdiction of the court; (d) the customary law prevailing in the area of the jurisdiction of the court, so far as it is not repugnant to justice or morality or inconsistent with the Constitution or any written law in force in Malaŵi: &…”

S. 13 of the 1962 Act: “The Minister may, by order published in the Gazette, confer upon all or any Traditional Courts jurisdiction to enforce all or any of the provisions of any law specified in such order, subject to such restrictions and limitations, if any, as the Minister may specify.”

49 Ss. 23 and 40 of the 1962 Act. For the rules see GN 175/1962.

50 See n. 16.

51 Cap. 5:01, 1968 Revision: This point requires separate treatment. Section 15 exclusively empowers the High Court to make these orders.

52 See n. 16 at p. 113.

53 GN 175/1962.

54 S. 371 of the 1968 Code.

55 The jurisdiction of Traditional Courts is set out in their respective warrants and “is subject to sections 8 to 11” of the 1962 Act. The civil jurisdiction of all Traditional Courts in matters to be determined according to customary law is unlimited. In all other matters it is limited to causes in which the subject matter in dispute does not exceed a monetary sum set from time to time.

56 In Mudaliar v. Kayisi (see n. 16 at pp. 113–114)Google Scholar Bolt, Ag.J. made the following points: 1. Apart from certain statutory exceptions, civil matters which are triable by Traditional Courts are confined to those based on customary law. If the claim is under English law it will have to go to Received Courts. 2. Cases based on customary law are not within the jurisdiction of Received Courts. If the claim is based on customary law it can be determined only by Traditional Courts.

Point (1) fails to explain the summary of civil jurisdiction of Traditional Courts. According to this summary, in “all other matters” (i.e. in matters not to be determined according to customary law) the jurisdiction is limited by monetary amounts. Among “all other matters” there is no good reason why “common law matters” should not be included. Point (2) fails to explain section 62(1) of the Constitution. According to that section the High Court has unlimited original civil and criminal jurisdiction “under any law”. There is no good reason why “any law” should not include customary law. It also fails to explain section 39(1) of the Courts Act. According to that section magistrates' courts may hear and determine “any civil matter” other than those specified in section 39(2). There is no good reason why “any civil matter” should not include a civil matter to be determined by customary law.

Furthermore there are matters which are difficult to classify as determined by the common law or by customary law. Examples include trespass to crops on customary land by cattle owned by a ranching company; defamation of a Traditional Authority by a newspaper company; contract for the building of a brick house in rural Malaŵi; contract of sale of farm produce by a farmer to a statutory marketing corporation (ADMARC); contract of sale (on the private market) of second-hand goods such as cars, bicycles, watches, radios, and so on. The number of such matters will be increasing with time.

57 The Appeal Court cited Mawji & Another v. R. (1957) 41 Cr.App.R. 69 at 71.Google Scholar

58 (1956) 1 ALR Mai. 349 (High Court).

59 P. 714 of the transcript.

50 39th Ed. para. 3017.

61 P. 715 of the transcript.

62 Ibid.

63 See n. 59.

64 P. 717 of the transcript.

65 Words repeated by the Appeal Court at p. 717 of the transcript.

66 See n. 60.

67 See Elias, T. Olawale, The Nature of African Customary Law (Manchester: Manchester University Press, 1956), pp. 250–252;Google Scholar and Gluckman, Max, The Judicial Process Among the Barotse of Northern Rhodesia (Manchester: Manchester University Press, 1955), pp. 107–108Google Scholar. At p. 107 Gluckman writes about the Lozi as follows: “Though the judges demand direct, they do not exclude hearsay, evidence, and witnesses frequently give hearsay evidence.”

68 S. 36 of the 1962 Act.

69 S. 3 of the 1968 Code.

70 S. 5 of the 1968 Code.

71 P. 713 of the transcript.

72 Ibid.

73 P. 714 of the transcript.

74 Ibid.

75 Allott, , op cit, p. 162Google Scholar where he quotes “the wise words” of Tredgold, S. J. in Tabitha Chiduku v. Chidano, 1922,Google Scholar S.R. 55 at 56 to the effect that these words “should only apply to such customs as inherently impress us with some abhorrence or are obviously immoral in their incidence”.

76 Act No. 11 of 1985, s. 3(3).