² No. 31 of 1969.

³ Rep. v. Nakulenga, Cr. Case No. 73 of 1969 (unreported). Several people entered a house, brutally killed a man and a woman, and seriously injured another man (K.A.). At first, K.A. told the police that he was unable to identify the attackers. Eleven days later he maintained that not only was he able to identify some of them, but that he had previously disclosed their identity to the police. The Court observed that the inconsistent statements affected K.A.'s credibility. Other key witnesses also gave inconsistent evidence. The Court found this to be one of the “rare” cases in which there was some evidence, but:

“[S]uch evidence is so manifestly unreliable that no reasonable jury could possibly convict”,

citing a Practice Note by PARKER, C.J. [1962] 1 All E.R. 488. The State decided not to proceed on the other counts and entered a discontinuance. In view of the fact that major witnesses had been discredited, a conviction on the other counts would have been unlikely. There were no further proceedings against these defendants. An action has been brought against a new defendant, arising out of the same fact situation. In St. v. Kawisa S.R.T.C., Case No. 58 of 1971, the accused was charged with the murder of eight people. During a lengthy trial, he pleaded guilty and asked that 23 other murders and 15 attempted murders be taken into account for sentencing purposes. His confession named seven accomplices, including three prominent people. He repudiated this confession at trial, stating that he had acted alone. In a speech, the President criticized the S.R.T.C. finding that Kawisa was solely responsible. The record of this case will not be available for some time, and this report is based on personal observation.

^{page 38 note 1} Malawi Government Hansard, November 17, 1969, p. 59 (Mr. Khofi-Phiri, MP from Nkhotakota).

^{page 38 note 2} Id., p. 56.

^{page 38 note 3} “4 Judges, 1 Exodus”, The Economist, November 29, 1969 at p. 41. The text of the resignation letter of Justices Bolt, Smith and Pike and Chief Justice Watkin-Williams was never made public. The judges later agreed to stagger their departures, to avoid a breakdown in the judicial system.

^{page 38 note 4} Id.

^{page 38 note 5} No. 31 of 1969.

^{page 38 note 6} The Government is represented by lay police prosecutors, who are guided by the State Counsel's Office. Under the Laws of Malawi, Traditional Courts Act, cap. 3:03, s. 24, defence counsel cannot appear unless the Minister gives general or special permission. General permission has been given for appearances in some courts, but special permission is denied if a practitioner attempts to appear in these courts.

^{page 38 note 7} S. 5.

^{page 38 note 8} Laws of Malawi, cap. 3: 03.

^{page 38 note 9} Id., s. 3. The President is also the Minister for Justice. The jurisdiction of Regional Traditional Courts is wholly criminal. The Regional Traditional Courts (Criminal Jurisdiction) (No. 2) Order, 1970, extended jurisdiction beyond minor offences to include: offences against morality, offences against the person, major offences against property (except theft by false pretences) and witchcraft offences (cap. 7:02). Under the Children and Young Persons (Juvenile Courts) (Designation) Notice) 1971, the Regional Traditional Courts can hear cases involving juvenile offenders.

^{page 38 note 10} Id., s. 40. The Traditional Courts (Procedure) Rules are rather broad and vague.

^{page 38 note 11} Under s. 26, the Minister has given the Chief Traditional Courts Commissioner extensive powers of revision. These powers do not apply to cases heard in Regional Traditional Courts, however.

^{page 39 note 1} Pp. 55–56 below.

^{page 39 note 2} See, the “Synoptic Table of East African Penal Codes” in R. Seidman, A Sourcebook of the criminal law of Africa, 1966, pp. 631–2.

^{page 39 note 3} Traditional Courts Act, s. 12.

^{page 39 note 4} The British Central Africa Order in Council, 1902, s. 20 (a). Virtually identical language can be found in the Orders of East Africa. See, Tanganyika Order in Council, 1920. s. 24 (a).

^{page 39 note 5} St. v. Kawisa, S.R.T.C. Case No. 58 of 1971, p. 37, n. 3 above.

^{page 39 note 6} Malawi consists of three administrative regions-Southern, Central and Northern. There is a Regional Traditional Court for each Region, and the membership of the S.R.T.C. includes three Chiefs (one of whom is Chairman), a magistrate and a barrister. Sena, Lomwe, Angoni, Yao and Cewa tribal groups live in the Southern Region, and a diversity of customary laws therefore exists. All of the cases analysed in this paper originated in the S.R.T.C Cases in the Central and Northern Region Traditional Courts are similar in content to those of the S.R.T.C. They have been omitted from the present study because they were not available in sufficiently large numbers. The cases appear in mimeographed form only.

^{page 39 note 7} These figures include three cases in which the Police Prosecutor, acting on State Counsel's advice, charged with manslaughter, and the Court, of its own motion, changed the charge to murder. Accused were not given the benefit of a postponement or adjournment.

^{page 39 note 8} Appeals from the S.R.T.C. are heard by the judges of the Northern or Central Region Traditional Court, sitting as the N.T.C.A. This may be only an interim arrangement.

^{page 40 note 1} One of the acquittals occurred after the defendant had entered a plea of guilty.

^{page 40 note 2} Cf. Sidney Makumba S.R.T.C. Case No. 8 of 1971, below, p. 41, n. 3. None of the S.R.T.C. cases raise the issue of the voluntariness of the act.

^{page 40 note 3} Ss. 209–10.

^{page 40 note 4} None of the cases heard by the S.R.T.C. concerned the felony-murder rule or escape of prisoners from custody. S. 212 (c) and (d), which governs these situations, has therefore been omitted from the analysis.

^{page 40 note 5} (1967) 1966–68 ALR Mal. 388 Supreme Court of Appeal (S.C.A.). A series of quarrels led to the accused being forced by his wife to leave the village. Seven people, including thewife, were sleeping in a house. Accused set fire to the house having blocked the doorways, and all but one of the occupants escaped. The S.C.A. upheld the murder conviction on another ground, finding that the provocation did not justify the response.

^{page 40 note 6} [1961] A.C. 290.

^{page 40 note 7} Mongola v. R. (1963) 1961–63 ALR Mal. 453 (F.S.C.) held that Smith applies to s. 212, if insanity or intoxication have not been raised. Since Nankondwa overruled Mongola as to s. 212 (b) only, Mongola remains good law as to s. 212 (a).

^{page 40 note 8} D.P.P. v. Smith [1961] A.C. 290.

^{page 40 note 9} This is the interpretation of s. 212 (b) given in Nankondwa.

^{page 40 note 10} Ss. 208 and 211. See the discussion pp. 48–50 below for findings of manslaughter where the partial defences of provocation and use of excessive force in self-defence are applied.

^{page 40 note 11} Magambo, pp. 44–45 below; Chilima, p. 47 below; and Chabwera, p. 50 below. In Beula, pp. 50 below, the S.R.T.C. found that the accused acted deliberately, but this was rejected by the N.T.C.A., which substituted a finding of manslaughter.

^{page 40 note 12} W. Rangeley, “Notes on Cewa tribal law” (1949), 1 Nyasaland J., 5, 25. Rangeley contends that Cewa customary homicides could be divided into murder, manslaughter, and accidental killing, which differ only as to the amount of compensation assessed. This article has been criticized on the basis that Rangeley cites no authority or empirical evidence to support his assertions.

^{page 41 note 1} S.R.T.C. Case No. 15 of 1971, note 7 below. Intent to kill was also found in Mangataye, p. 00 below. “Intention to punish” was found in Masese.

^{page 41 note 2} S.R.T.C. Case No. 8 of 1971. (The sentence was 9½ years.)

^{page 41 note 3} Sidney Makumba v. Rep. N.T.C.A. Cr. Ap. No. 33 of 1971.

^{page 41 note 4} Rep. v. Chidothi (1967) 1966–68 ALR Mal. 437,439. The accused and his wife had malaria and had got drunk. During a quarrel, the deceased was pushed and hit her head on a door. The cause of death was trauma combined with malaria.

^{page 41 note 5} S.R.T.C. Case No. 29 of 1971.

^{page 41 note 6} S.R.T.C. Case No. 4 of 1971. Accused's wife went to a beer party by herself and met her husband, the accused. She refused to go home with him and went instead to another beer party, where the incident occurred. Under customary notions of a husband's rights, such behaviour would be provocative, but it would not constitute legal provocation. Accused received a twelve-year sentence.

^{page 41 note 7} S.R.T.C. Case No. 15 of 1971. The wife of the accused went to a beer party, taking the house keys. Accused sent his child to ask the wife to come home, and, when she refused, he went to the party and killed her. The sentence was 25 years.

^{page 41 note 8} N.T.C.A. Cr. Ap. Case No. 20 of 1970.

^{page 42 note 1} S.R.T.C. Case No. 25 of 1971, p. 47, n. 2 below. Rangeley, op. cit. above, p. 40, n. 12 contends that the wife may be beaten in moderation by her husband, under Cewa custom.

^{page 42 note 2} S.R.T.C. Case No. 27 of 1970.

^{page 42 note 3} S.R.T.C. Case No. 26 of 1970. Kafaiwale also testified that Zakaria told him that she was tired of caring for the deceased, who was elderly and incontinent. The S.R.T.C. did not treat Kafaiwale as an accomplice and attempt to obtain corroboration for his testimony. An appeal by Zakaria on this issue would have been unsuccessful, since s. 242 of the Criminal Procedure and Evidence Code provides that: “[A] conviction shall not be set aside merely because it proceeds upon the uncorroborated testimony of an accomplice”.

^{page 42 note 4} S.R.T.C. Case No. 28 of 1970.

^{page 42 note 5} Wahiya & Chanasa v. Rep. N.T.C.A. Cr. Ap. No. 43 of 1970.

^{page 42 note 6} Penal Code, cap. 7:01, ss. 404–6.

^{page 42 note 7} Id., s. 3.

^{page 42 note 8} G. Williams, Criminal Law, 663–4, 667–8 (2nd ed., 1961). The elements of the offence of conspiracy have not been discussed by the High or Supreme Courts of Malawi.

^{page 43 note 1} Penal Code, s. 227.

^{page 43 note 2} Id., s. 22.

^{page 43 note 3} Id., s. 21.

^{page 43 note 4} Id., s. 215.

^{page 43 note 5} S.R.T.C. Case No. 3 of 1971, p. 45, n. 2 below. In Rep. v. Billy S.R.T.C. Case No. 29 of 1971, medical evidence showed only a facial bruise and scratch. The Court convicted of manslaughter, failing to discuss cause of death.

^{page 43 note 6} S.R.T.C. Case No. 28 of 1970. Rep. v. Jailosi, High Court Cr. Case No. 82 of 1968 (unreported) states that: “[Where there is] no medical evidence concerning the cause of death, the fact that there has been a killing may nonetheless be proved by circumstantial evidence which must, however, be so cogent and compelling that no rational hypothesis other than a killing is possible; the court must be left in no reasonable doubt”. It is debatable whether the evidence in Wahiya was “cogent and compelling”.

^{page 43 note 7} S.R.T.C. Case No. 22 of 1970, p. 50, n. 1 below.

^{page 43 note 8} M. Krupp, M. Chatton, S. Morgan, Current diagnosis and treatment, 1971 (pulmonary oedema is an accumulation of fluids in the lungs).

^{page 44 note 1} Rangeley, op. cit.

^{page 44 note 2} S.R.T.C. Case No. 11 of 1971, p. 45 below.

^{page 44 note 3} St. v. Granti. S.R.T.C. Case No. 17 of 1971; Rep. v. Khalula S.R.T.C. Case No. 14 of 1970; Mulapa, pp. 46 below; Luciano, p. 47 below; Magambo, pp. 45 below; Milka, p. 41 above; and Saini, p. 48 below.

^{page 44 note 4} Cap. 7:01, s. 9 provides that “a person is not criminally responsible for…an event which occurs by accident”. Since the Code does not define accident, the word has the same meaning as in English law: an occurrence producing injury which is neither intended nor expected (Fenton v. J. Thorley and Co., Ltd.,[1903] A.C. 443). In all of the S.R.T.C. cases in which accident is pleaded, a man of ordinary prudence would have foreseen the consequences.

^{page 44 note 5} S.R.T.C. Case No. 16 of 1971. The attitude of the S.R.T.C. towards the psychiatrist's report may have been coloured by a report he made in Rep. v. Masese S.R.T.C. Case No. 3 of 1970: “He believed his wife was unfaithful. If this is true he was provoked into killing her; if it is not true he suffers from a delusion and is insane”. This is a legal conclusion which would anger any court. The S.R.T.C. rejected this report and held accused to be sane.

^{page 44 note 6} R. Emi (1957) 1923–60 ALR 428 High Court (H.C.).

^{page 44 note 7} Rep. v. Lufazema (1967) 1966–68 ALR Mal. 355 (H.C.).

^{page 44 note 8} R. v. Charlie (1965) 1964–66 ALR Mal. 371 (H.C.). (Charlie also held that a new trial will be ordered where the court calls for a medical examination and then proceeds in its absence.)

^{page 45 note 1} Nyinge s/o Suwato v. R. [1959] E.A. 974 (Kenya). There are no Malawi cases on this point, but Nyinge interprets an identical statute. Accused killed a policeman under the delusion that the policeman was plotting his death, and the Court rejected the defence of insanity.

^{page 45 note 2} S.R.T.C. Case No. 3 of 1971.

^{page 45 note 3} S.R.T.C. Case No. 11 of 1971. (Deceased had sued the defendant for impregnating his wife and later refused compensation because of their friendship.)

^{page 45 note 4} Penal Code, cap. 7:01, s. 17.

^{page 45 note 5} S.R.T.C. Case No. 11 of 1970.

^{page 45 note 6} Frackson Magambo v. Rep. N.T.C.A. Case No. 19 of 1970.

^{page 46 note 1} Rep. v. Samson Kaya S.R.T.C. Case No. 20 of 1970.

^{page 46 note 2} D.P.P. v. Chipaye (1966) 1966–68 ALR Mal. 43 (S.C.A.).

^{page 46 note 3} Personal conversations with Traditional Court Chairmen.

^{page 46 note 4} S.R.T.C. Case No. 13 of 1970.

^{page 46 note 5} Kenny's Outlines of Criminal Law 564 n. 4 (18th Ed., 1962): “[A] private person will be justified in arresting the suspected felon, even by fatal violence, if the suspicion be correct; but an innocent man is not bound to submit to a private arrester, so a killing by either of them, would be a manslaughter”.

^{page 46 note 6} S.R.T.C. Case No. 20 of 1971.

^{page 47 note 1} Intoxication is analysed as a partial defence because no S.R.T.C. cases raise the issue of the complete defence: insanity due to intoxication, or intoxication without consent (Penal Code, s. 13). Commercial spirits and beer are too expensive for most Malawians, and the home-made equivalents are consumed instead. They are usually made by old women who give parties to encourage sales, and thus supplement their income. Short periods of heavy drinking take place immediately after the monthly payday. Kachasu is distilled from corn husks and sugar cane extracts and is 70–75% alcohol. Beer is made from corn, millet or sorghum by a lengthy open fermentation process, and contains about 5% alcohol.

^{page 47 note 2} S.R.T.C. Case No. 25 of 1971. Accused had two wives, and never told his second wife about the first. Having quarrelled about this over a long period, accused killed the second wife, having drunk a large portion (US $3.60) worth of beer. Accused must have consumed about seven quarts of beer. The S.R.T.C. rejected the defence of intoxication and convicted of murder.

^{page 47 note 3} S.R.T.C. Case No. 18 of 1970.

^{page 47 note 4} S.R.T.C Case No. 10 of 1970. Accused was charged with manslaughter, on the recommendation of State Counsel, but this was changed to murder during the trial. The S.R.T.C. convicted of murder, despite accused's plea that he remembered nothing, due to intoxication. The conviction was upheld on appeal (N.T.C.A. Case No. 19 of 1970).

^{page 47 note 5} S.R.T.C. Case No. 26 of 1971. Deceased was being abusive to several persons at a kachasu party. He called the accused a crocodile several times. Accused could have thought that this was a witchcraft accusation, since witches are thought to be able to turn themselves into crocodiles to kill their enemies. Accused testified that deceased said: “So far there was sunshine”, and accused “… took him from that to a certain […] where there was shadow” (sic). In other words, deceased said that you have seen the sun rise, but you will not see it set.

^{page 48 note 1} The “ordinary person of the community to which accused belongs”, s. 214.

^{page 48 note 2} Menyani v. Rep. (1966) 1966–68 ALR Mal. 79 (S.C.A.).

^{page 48 note 3} Wilson v. R. (1952) 1923–60 Mal. 261, 263 (Rhodesia and Nyasaland Court of Appeal). A beer party gave rise to a quarrel. The accused, although seemingly not involved in the quarrel, stabbed and clubbed the deceased. Rejecting provocation, the Court found that the response of the accused indicated an abnormal state of mind which, combined with a conflict in evidence, resulted in a finding of manslaughter.

^{page 48 note 4} Penal Code, ss. 213, 214.

^{page 48 note 5} S.R.T.C. Case No. 22 of 1971. (The Court sentenced the defendant to a prison term of 2½ years.)

^{page 48 note 6} See Rangeley, op. cit. Among the Cewa, if the husband beats the child, for example, he can be made to pay damages to his wife's family. Family relations in Malawi's matrilineal societies are currently changing in response to economic changes, urpanisation, etc.

^{page 48 note 7} S.R.T.C. Case No. 19 of 1971.

^{page 48 note 8} S.R.T.C. Case No. 17 of 1970.

^{page 49 note 1} P. 50 below.

^{page 49 note 2} S.R.T.C. Case No. 25 of 1970. Although the Court fails to mention the issue of provocation, they must have considered it, or a murder conviction would have resulted. The sentence was 8 years' imprisonment.

^{page 49 note 3} Roseline Makumba v. Rep. N.T.C.A. Cr. Ap. No. 36 of 1970.

^{page 49 note 4} S.R.T.C Case No. 26 of 1971, p. 47 above.

^{page 49 note 5} Chasiyana v. R. (1959) 1923–60 ALR Mal. 730 Federal Supreme Court (F.S.C.).

^{page 49 note 6} Greyson v. R. (1961) 1961–63 ALR Mal. 22 (F.S.C.).

^{page 49 note 7} Mwanika v. R. (1963) 1961–63 ALR Mal. 485 (F.S.C.). In this case, manslaughter was substituted for murder where a wife killed a woman who was living with her husband. This decision may not be consistent with customary law, as customary marriages are potentially polygynous and cohabitation may constitute marriage. In this circumstance, “the ordinary (wo)man of the accused's community” might not be so provoked.

^{page 49 note 8} Chasiyana v. R. (1959) 1923–60 ALR Mal. 730 (F.S.C.) (dictum); Greyson v. R. (1961) 1961–63 ALR Mal. 22 (F.S.C.) (dictum); Mwanika v. R. (1963) 1961–63 ALR 485 (F.S.C).

^{page 49 note 9} S.R.T.C. Case No. 19 of 1970.

^{page 49 note 10} Penal Code, s. 213.

^{page 50 note 1} S.R.T.C. Case No. 22 of 1970.

^{page 50 note 2} Mpula v. Rep. N.T.C.A. Cr. Ap. Case No. 26 of 1970.

^{page 50 note 3} S.R.T.C. Case No. 30 of 1971. Under Laws of Malawi, Criminal Procedure and Evidence Code, cap. 8: 01, s. 194 (as amended by Act 23 of 1968) the spouse of the accused is a competent and compellable witness.

^{page 50 note 4} Jackson v. R. (1962) 1961–63 ALR Mal. 175 (F.S.C.); Kaipa v. R. (1964) 1964–66 ALR Mal. 142 (S.C.A.); Menyani v. Rep. (1966) 1966–68 ALR Mal. 79 (S.C.A.); and D.P.P. v. Chipaye (1966) 1966–68 ALR Mal. 43 (S.C.A.).

^{page 50 note 5} S.R.T.C. Case No. 4 of 1970.

^{page 50 note 6} Beula v. Rep. N.T.C.A. Cr. Ap. No. 16 of 1970.

^{page 50 note 7} (1966) 1966–68 ALR Mal. 43, 50 (dictum).

^{page 51 note 1} Rep. v. Gremu S.R.T.C Case No. 12 of 1971. A dispute arose when deceased, an old woman, refused to pay for goods had on account. Accused lifted and dropped deceased four times and death resulted from a head trauma.

^{page 51 note 2} Rep. v. Mangataye S.R.T.C. Case No. 27 of 1970.

^{page 51 note 3} The S.R.T.C. places heavy emphasis on Deuteronomy, ch. 19, v. 19: “Then shall you do unto him, as he had thought to have done unto his brother: so shalt thou put the evil away from among you”. (Holy Bible, Authorised Version). In Mpula, Chilima and Magombo, the S.R.T.C. also cites Deuteronomy, ch. 17, v. 6 and ch. 19, v. 15–17, 21 and Matthew ch. 5, v. 21.

^{page 51 note 4} Rep. v. Kenedi Chilima S.R.T.C. Case No. 18 of 1970.

^{page 51 note 5} Rangeley, op. cit. maintains that the Cewa punished most of their homicides by the forced payment of compensation only. The death penalty was reserved for crimes against the chief or repeated offenders. In the latter situation, the relatives of the accused demanded the death sentence because they were unable to pay the compensation. On the other hand, my conversations with Traditional Court Chairmen (whose knowledge of local custom is excellent) led me to conclude that most Malawi tribes, including the Cewa, made more extensive use of death by burning and mutilation than Rangeley would have us believe.

^{page 51 note 6} S.R.T.C. Case No. 3 of 1970. above. The reference to a mad dog is significant, as the issue of insanity had been raised and rejected.

^{page 51 note 7} S.R.T.C. Case No. 19 of 1971.

^{page 52 note 1} S.R.T.C. Case No. 6 of 1971. Deceased had been selling beer and went home when it was gone. The defendants demanded beer at her house, and failing to arouse deceased, sprinkled gasoline on her body and lit it. The Court found murder. In Sidney Makumba, p. 40 above, however, the N.T.C.A. was almost persuaded by the children's plea that their father be set free.

^{page 52 note 2} Cap. 8:01, s. 194.

^{page 52 note 3} S.R.T.C. Case No. 28 of 1970.

^{page 52 note 4} S.R.T.C. Case No. 5 of 1970. A man was seen taking a child into the bush, and the child was found dead. The man was wearing a checked shirt. A man of similar appearance was later chased and hit in the hand with a hammer. Accused was arrested wearing a white shirt. He confessed to thefts in the area, but denied the killing at trial. The S.R.T.C. found murder.

^{page 52 note 5} Laws of Malawi, Criminal Procedure and Evidence Code, cap. 8:01, s. 176. Under s. 36, the police are required to report arrests to the nearest magistrate, but there is no provision requiring a prompt appearance before a judge. A procedure similar to habeas carpus appears to be the only remedy where the police refuse to charge the individual. This remedy is not particularly effective. A confession may therefore occur as a result of prolonged detention.

^{page 53 note 1} S.R.T.C. Case No. 5 of 1970.

^{page 53 note 2} S.R.T.C. Case No. 6 of 1971. p. 52, n. 1 above.

^{page 53 note 3} R. v. Macheso (1943) 1923–60 ALR Mal. 102, 105 (H.C.). The deceased, wife of the accused, attempted to remonstrate in a quarrel with accused's step-daughter and was beaten to death. Accused refused to offer evidence. The Court held that the refusal to offer a prima facie case of provocation barred the Court's consideration of it.

^{page 54 note 1} S.R.T.C Case No. 28 of 1970.

^{page 54 note 2} S.R.T.C. Case No. 25 of 1970.

^{page 54 note 3} See, e.g., J. O. Ibik, The law of marriage and divorce (Malawi), 1970, C. Mitchell, “Land tenure among the Machinga Yao”, 5 Nyasaland J., No. 2 at 18 (1952); and A. Duly, “The Lower Shire District, notes on land tenure and individual rights”, 1 Nyasaland J., No. 2 at 13 (1948). These works have been criticized on the basis that they are unsupported by authority or empirical research. They probably represent generalizations from too small a sample. During the past three long holidays, law students of the University of Malawi have been collecting Traditional Court decisions and discussing them with the Chairmen. This project received the support of the International Legal Center, New York. This material may, it is hoped, provide a basis for more authoritative studies.

^{page 54 note 4} See, e.g., s. 44 (Aiding prisoners of war to escape); s. 80 (Riotously preventing the sailing of ships); s. 282 (c) (Theft from vessel or goods vehicle); and s. 342 (Attempts to cast away ships). The provisions relating to crimes against property are hopelessly chaotic.

^{page 54 note 5} See, e.g., ss. 132–4. It has been suggested that the maximum penalty of life imprisonment for rape and attempted rape be reduced. Since rape is not serious under customary law, it is argued that ss. 132–4 reflect a colonialist's desire to protect his women.