In Malawi a system of Traditional Courts (also referred to as Local Courts) have been used for much of the twentieth century to prosecute crimes and mediate disputes. The current government of Malawi has proposed an expansion of this system. Although traditional courts have handled a variety of offences in the past, the proposed courts will handle only civil cases and some minor criminal acts.[1]
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The traditional court system in Malawi existed in precolonial times and remained in use during British rule of Malawi. In 1969 the government of Malawi provided the traditional court system with criminal jurisdiction by the Local Courts Act. This act was prompted by widespread public criticism of the judicial system after government prosecutors failed to secure a conviction in a high profile murder case.[2] Hastings Banda made extensive use of courts, as part of his efforts to establish traditional systems in Malawi. The traditional courts eventually became the primary means of law enforcement in Malawi. In these courts, prosecutors had much greater power than in the parallel government judicial system.[3]
Many critics have characterized the use of these courts as political persecution. Bakili Muluzi abolished the use of traditional courts for criminal cases after taking power in 1994.[1] The traditional courts continued to be used by the rural poor, however, but they were limited to mediating disputes.[4]
In 2007 the government of Malawi established a commission to review the possibility of extending the authority of traditional courts. After the completion of the review, the government proposed a bill that would provide the courts with the ability to prosecute some criminal cases. The 2011 Local Courts bill proposes that local courts should primarily handle nuisance crimes as well as crimes such as defamation. Some Malawian politicians and human rights activists have derided the bill, characterizing it as a plan for Kangaroo courts that could be used for political repression.[5] Ibrahim Matola of the United Democratic Front has argued that the courts will provide too much power to local chiefs and could devolve into a "draconian system". Opposition leader John Tembo has condemned the plan as incompatible with a multi party democracy.[5] The Malawi Congress Party has also criticized the plan, claiming that it will unconstitutionally takes away power from the Judicial branch of government. The Solicitor General of Malawi, Anthony Kamanga, has disputed this claim, arguing that the Constitution of Malawi allows for the limited use of local courts.[1] The Justice Minister of Malawi, George Chaponda, has also defended the bill, citing the fact that serious crimes will not be handled by the local courts as proof that there is no danger of human rights abuses. Chaponda claims that the plans are popular with most Malawians, and that his critics are not “conversant with the historical development of this country.”[5]
The Local Courts bill gained significant media attention in Malawi and in international media due to the perceived inclusion of a ban on public farting in the bill. Chaponda initially said that under the bill, it would be a minor crime to fart in public. After the idea received criticism he emphatically defended the measure, noting that a similar measure was in place during the colonial era and claiming that there is broad public support for the ban.[6] Anthony Kamanga later disputed Chaponda's assertion that the bill's reference to "fouling the air" refers to farting.[7] Chaponda contradicted Kamanga and maintained that the bill does refer to farting, and argued that the ban was necessary due to a recent increase in public farting. He alleged that during the single party rule of Hastings Banda Malawians refrained from farting in public, but said that "Now because of multipartism or freedom, people would like to fart anywhere".[8]
Chaponda later retracted his claims and endorsed Kamanga's position that the language does not refer to public farting.[9]