Editing Politics of Malawi (section)

==Judicial branch==
{{Main|Judiciary of Malawi}}
The constitution provides for an independent [[judiciary]]. Malawi's judicial system, based on the English model, is made up of magisterial lower courts, a High Court, and a Supreme Court of [[Appeal]].

Until 1969, Malawi retained a system of justice based on the colonial model, which followed the principles of [[English law]] as amended by the laws of Malawi. The hierarchy of courts began with Magistrates’ Courts in the towns, rising to a High Court and finally a Supreme Court of Appeal. In addition, mainly in rural areas, there are several levels of local courts with varying powers to hear disputes such as divorces and other matrimonial issues, inheritance and access to land based on traditional customary law. these courts also heard minor criminal cases specified in the Malawi Penal Code, using an expedited procedure. These were subordinate to the High Court, and subject to legislation giving the guarantee of a fair trial, including the right to legal representation and the right to appeal to the High Court.<ref>F E Kanyongolo, (2006). Malawi: Justice sector and the Rule of Law, Open Society Initiative for Southern Africa, p. 44. {{ISBN|978-1-920051-32-7}}.</ref>

After independence in 1964, Banda, who was then Prime Minister, and the Minister of Justice [[Orton Chirwa]] began to criticise such principles of English-based law as the [[Presumption of innocence]], the need to establish guilt beyond [[reasonable doubt]] and the requirement for [[corroborating evidence]]. In 1969, the acquittal of five defendants in the first [[Chilobwe murders]] trial caused outrage although, as another individual was later found guilty of all these murders in a second trial, this anger was misplaced. Parliamentary reaction was hostile, and several speakers, including ministers, openly suggested that European judges and the European-style legal system had allowed clearly guilty defendants to escape the punishment they deserved. [[Aleke Banda]], the Minister of Finance, particularly attacked the use of defence lawyers and the legal safeguards imposed by the English-law [[Rules of evidence]]. Banda (who had become President in 1966) said that, if the judge had any conscience, he should resign and specifically linked traditional law to making punishment certain, claiming that lack of evidence was not proof of innocence.<ref name="auto1">M Chanock (1976) Neo Traditionalism and the Customary Law in Malawi, pp. 80-4. http://www.jlp.bham.ac.uk/volumes/16/chanock-art.pdf</ref><ref>P Brietzke, (1974). The Chilobwe Murders Trial, African Studies Review, Vol. 17, No. 2, p. 362.</ref>

From 1970, the system of [[Traditional Courts in Malawi|Traditional Courts]] was transformed. Three Regional Traditional Courts and a National Traditional Court of Appeal were created above the existing network of lower-level traditional courts, and given jurisdiction over virtually all criminal trials, including murder and treason, involving Africans of Malawian descent, using "customary" rules of evidence and procedure. Any appeals were directed to a National Traditional Court of Appeal rather than the Malawi High Court, as had been the case before 1970. The High Court and Supreme Court of Appeal remained in existence, and mainly dealt with [[Civil law (common law)|civil law]] cases outside customary law. Although these courts retained their criminal jurisdiction, in practice the vast majority of criminal cases were heard in Traditional Courts. The Traditional Courts were supposed to operate in accordance with African law and custom, although they applied an authoritarian, restrictive and punitive version of customary law, in line with the views of Banda. The majority of the judges were chiefs without legal training, appointed by and liable to dismissal by Banda, so without any judicial independence. Defendants were not allowed lawyers to plead their cases, had no automatic rights either to call witnesses or of appeal (these were at the discretion of the courts and the minister of Justice). They were not given a summary of the charges against them before the trial, so could not prepare a defence.<ref>P Brietzke, (1974). The Chilobwe Murders Trial, African Studies Review, Vol. 17, No. 2. p. 363.</ref><ref name="auto1"/>

During the 1970s and 1980s, the Traditional Courts gained a reputation for being used to prosecute Banda's political opponents and of being corrupt. The political manipulation of the Traditional Courts is shown in the high-profile trials of in 1976 of Albert Muwalo, Secretary General of the [[Malawi Congress Party]] and [[Focus Gwede]], Head of the Police Special Branch, on a charge of attempting to assassinate President Banda, and the 1983 treason trial of [[Orton Chirwa]], who was Minister of Justice until the [[Cabinet Crisis of 1964]] and his wife, [[Vera Chirwa]]. In both cases, unsubstantiated evidence was admitted to secure convictions and all four were sentenced to death on flimsy evidence, although only Muwalo was ultimately executed.<ref>R Carver, (1990). Where Silence Rules: The Suppression of Dissent in Malawi, Human Rights Watch, pp. 33-41. {{ISBN|978-0-929692-73-9}}.</ref>

During the transition to democracy, the operation of the three regional Traditional Courts and the National Traditional Appeal Court was suspended indefinitely in October 1993, which amounted in practice to their abolition. When the new Constitution came into force on 18 May 1994, it recognised customary law as an integral part of the legal system and converted many of the local, lower level Traditional Courts into Magistrates’ courts. It also provided for a new system of Traditional Courts but no legislation to set up such courts was introduced before 2011.<ref>F E Kanyongolo, (2006). Malawi: Justice sector and the Rule of Law, pp. 43-6. {{ISBN|978-1-920051-32-7}}.</ref> The 2011 legislation provided for two levels of customary law courts: several Local Courts were established in each of Malawi's 27 districts, mainly in rural areas, and one District Appeals Local Court in each district (to hear appeals from the Local Courts). Further appeals may be made to the High Court, to which both types of Local Courts are subordinate. Each Local Court and District Appeals Local Court was headed by chairperson, who need not be a lawyer, but with a reasonable standard of education, proficiency in English and an adequate knowledge of the customary law and language of the area that the court serves.<ref>M Crouch, (2011). Improving Legal Access for Rural Malawi Villagers, Jurist, https://jurist.org/dateline/2011/08/megan-crouch-local-courts-malawi.php</ref> Complaints have been made that the Local Courts, now popularly called Traditional Courts, are charging excessive court fees to settle disputes.<ref>MANA Online, (2013). http://www.manaonline.gov.mw/index.php/national/general/item/1927-trad-courts</ref>

At present (2013), Malawi has as its highest court a Supreme Court of Appeal with jurisdiction only in appeals from lower courts. Its members include the Chief Justice and nine other Supreme Court justices. The High Court of Malawi has unlimited original jurisdiction to hear and determine any civil or criminal proceedings. Most High Court cases are heard before a single judge, without a jury, but cases on constitutional matters must be heard by three judges: there is a Chief Judge and 19 other High Court judges. The High Court has a General Division which may also hear appeals from subordinate courts, and a Commercial Division,  dealing with commercial or business cases. One subordinate court is the Industrial Relations Court with jurisdiction over employment issues. Cases before it are heard informally, and with some restrictions on legal representation, by a panel consisting of a chairperson and one representative each of employers and employees. Other subordinate courts are the Magistrate Courts and Local or Traditional Courts. These have defined criminal and civil jurisdiction depending ontheir level, but expressly excluding cases of treason, murder or manslaughter.<ref>R Kapindu, Malawi's Constitutional and Legal system. https://www.nyulawglobal.org/globalex/malawi.htm {{Webarchive|url=https://web.archive.org/web/20131217055821/http://www.nyulawglobal.org/globalex/Malawi.htm |date=2013-12-17 }}</ref><ref>Malawi Judiciary. http://www.judiciary.mw/#</ref>