title: Customary law and administration of justice in Malawi, 1890-1933.
Creators: name: Maliwa, Emily N.
Publisher: name: SOAS University of London
Year: 1965

description: The question of administration of justice was one of the problems facing the British Administration in Malawi during its early days, the reasons being that there were many social groups in the country each having its own different code of law. To bring these various social groups under one administration, and to have their laws administered by British officers as the only machinery of justice, it was necessary to establish one comprehensive system of law. It is to be expected that with the advent of a new and alien administration, a conflict of laws between those brought in by the new administration and those that were indigenous should occur. This study seeks to examine these conflicts. Part I of this work tries to examine the numerous codes of law practised by various social groups of Malawi at the time of the establishment of British rule. Part II will attempt to examine why and how some of these existing laws were abolished or modified by the ordinances passed by the British administration. The fact that certain customary laws were abolished or modified led to the creation of new offences such as the laws regarding hunting, which, before the British came, was a source of pleasure as well as sustenance for the people, but which now, under the new rule, was made illegal. Section 20 of the British Central Africa Order in Council 1902 laid down that native law and custom were to be adhered to, if and when required, unless repugnant to justice and morality. The standards of justice and morality, however, in these cases, were not those of the people of Malawi, but those of the English. An apparent conflict arising from the application of such standards of justice and morality was seen in the cases of adultery, mwavi trials and marriages, as understood by the African people. In order to effect modifications in the practice of customary law, the British administration required an authority from Her Majesty's Government. The authority to introduce such a system was contained in the Africa Order in Council of 1889, which authorised that the Common Law, Statutes and rules of equity enforced in England were to be applied in the administration of British and British protected subjects. The 1893 Africa Order in Council authorised the administration of Malawi by British officers. The machinery to put into effect such a system was gradually developed. First were the Consular and Collector's Courts which were established in many districts of the protectorate. They were to preside over cases where Europeans and Asians only were parties or where a European and an African were involved in any dispute. Powers of Consulars and Collectors as judicial officers were extended to deal with cases where Africans only were parties. During this period, that is, 1890-1902, when Collectors and Consular Courts were abolished, hereditary chiefs were encouraged to try minor cases. A further attempt to systematize the administration of justice and that of local government was brought about in 1912, when Governor William Manning, the Governor of Nyasaland, proposed to the Colonial Office to put into effect a system of Principal Headmanship, thereby indirectly resulting in the replacement of hereditary chiefs, as the Governor had power to appoint any person or chief to act as the Principal Headman. This is dealt with in Part II.