HISTORICAL BACKGROUND OF THE MALAWI JUDICIARY
a) COLONIAL ERA
The High Court in Malawi has a long history. It was established when the colonial administration was introduced in Nyasaland protectorate then British Central Africa, on 11th August, 1902, modeled on British system.
• Between 1902-1906 appeals went to the Supreme Court of Cape of Colony of South Africa.
• Thereafter, between 1907 – 1952 its appeals went to the East African Court of Appeal;
• between 1954-1964 its appeals went to the Federal Court of Appeal of Rhodesia and Nyasaland in Salisbury, Rhodesia.
• The final appeal Court was the Privy Council in the House of the Lords.
b) THE SUBORDINATE COURTS (1902-1963)
The Subordinates Courts Ordinance No. 3 and 5 of 1906 created the following courts:
- District and Sub- Courts
- District native and Sub-District Native Courts
Magistrates in these courts were administrative officials at District level, known as District Residents later renamed District Commissioner. There was no separation of powers at District level. The jurisdiction of the District and Subordinate Courts was limited to disputes in which Europeans and/or Asians were parties whilst the jurisdiction the District Native and Sub-Native Courts was limited to legal disputes between Africans.
Before 1906 the Administrative Officers (the collectors) were empowered to function as magistrates to administer justice over both Africans and Europeans.
c) TRANSITION FROM NATIVE COURTS, LOCAL COURTS, TRADITIONAL COURTS
Development of the Judicial System from Independence
On attainment of independence on 6th July 1964 Nyasaland became Malawi. During the period 1964-1969, there was one system of courts. In terms of hierarchy, the Supreme Court of Appeal was the highest court in the land. The High Court, the Subordinate Courts and Local Courts (previously Native Courts) were below the Supreme Court of Appeal. The High Court was still maintained but appeals to foreign country were severed. Instead, all appeals from the High Court lay to the Supreme Court of Appeal in Malawi. Separation of powers existed during this period.
Dual System of Courts
Between the years 1970-1995, Malawi had a dual system of courts under the one party system of government.
The High Court system had a hierarchy of courts which from the lowest court were as follows:
• Subordinate Courts,
• High Court and
• the Supreme Court of Appeal on one side;
Traditional Courts system also has a parallel hierarchy of courts:
• Traditional Courts Grade A and B,
• District Traditional Appeal Courts,
• District Traditional Courts,
• Regional Traditional Courts, and
• National Traditional Appeal Court on the other side.
Traditional Chiefs sat with learned magistrates in the Regional and Native Traditional Appeal Courts.
The High Court enjoyed unlimited jurisdiction, whilst the Traditional Courts had jurisdiction over Africans only and largely on customary and homicide cases involving Africans of Malawi origin.
Abolition of the Dual System of Courts
Following the introduction of the multiparty system of government the dual system of court was abolished in 1994 and Malawi adopted a unitary system of courts. Chapter IX of the Constitution establishes courts at four levels:
the Supreme Court of Appeal
the High Court
Subordinate Courts and