Access vs. Justice: Customary Courts and Political Abuse—Lessons from Malawi's Local Courts Act. (1st October 2016)

• Record Type: Journal Article
• Authors: Ubink, Janine
• Is Part Of: American journal of comparative law. Volume 64:Number 3(2016)
• Page Start: 745
• Page End: 784
• Publication Date: 2016-10-01
• Subjects: Comparative law -- Periodicals; Comparative law; Periodicals; 341
• DOI: 10.1093/ajcl/avw009
• Languages: English
• ISSNs: 0002-919X

Abstract

Abstract: Developing countries are hard-pressed to provide affordable, good-quality dispute settlement to their populations. A case in point is Malawi, where Parliament in 2011 passed the Local Courts Act to remedy the profound lack of access to justice in the country. The proposed local courts are hybrid institutions that combine characteristics of state and customary fora. This Article analyzes the probable impact of local courts on people's access to legal institutions and the quality of the justice they provide compared to magistrate courts and informal traditional tribunals. It furthermore discusses whether it is likely that the local courts will be abused for suppression of political opposition as happened in the traditional courts, hybrid courts that operated in Malawi from 1969 to 1994 during the regime of President-Dictator Kamuzu Banda. The traditional courts invoked custom and tradition whenever the law did not serve them. This exceptional use of chief-led courts to circumvent the regular courts and subdue dissent poses the salient question whether courts that can apply custom are more vulnerable to political abuse due to certain characteristics of customary law. This Article presents a valuable lesson for other developing countries reforming their customary justice sector: while certain characteristics of customary law that are crucial to the functioning of courts that employ customary law—their unwritten, negotiable, and relational character and their flexible procedures—have a dark side in that they can facilitate abuse, the enabling and determining factor of such abuse lies in the undemocratic constellation of the country and the lack of independence of its judges.