Courting Custom: Regulating Access to Justice in Rural South Africa and Malawi: Regulating Access to Justice in Rural South Africa and Malawi

Abstract

The continued relevance of customary law for the regulation of the daily lives of Africa's citizens poses serious governance challenges to sovereign states, such as how best to regulate customary dispute settlement. While confronted with largely similar problems, the South African government proposed to enhance and regulate the position of its traditional courts, whereas Malawi has opted for the creation of hybrid local courts that combine characteristics of regular state courts and customary fora to be the main avenue of customary law cases. This paper analyzes the strengths and weaknesses of both approaches and displays how the two countries’ historical and political contexts enable and constrain their regulatory choices in the field of customary dispute settlement, as well as influence the risk and benefits of the various options. In this respect, the political power of the traditional leaders is a significant determinant.

Full text

Courting Custom: Regulating Access to Justice in
Rural South Africa and Malawi
Janine Ubink Sindiso Mnisi Weeks
The continued relevance of customary law for the regulation of the daily lives
of Africa’s citizens poses serious governance challenges to sovereign states, such
as how best to regulate customary dispute settlement. While confronted with
largely similar problems, the South African government proposed to enhance
and regulate the position of its traditional courts, whereas Malawi has opted for
the creation of hybrid local courts that combine characteristics of regular state
courts and customary fora to be the main avenue of customary law cases. This
paper analyzes the strengths and weaknesses of both approaches and displays
how the two countries’ historical and political contexts enable and constrain
their regulatory choices in the field of customary dispute settlement, as well as
influence the risk and benefits of the various options. In this respect, the politi-
cal power of the traditional leaders is a significant determinant.
Recent decades have demonstrated the continued relevance of
customary law for the regulation of the lives of Africa’s citizens.
Most of these citizens navigate family relations, access to natural
resources, and settlement of disputes through customary law as
administered by family heads, elders, and traditional leaders. The
state legal system is often a much less direct instrument of gover-
nance in their lives. Statutory laws are less well known, state
courts harder to access, and attempts to enhance knowledge,
access, and preeminence of state law institutions have often had
limited impact. As a result, recent decades have witnessed a re-
evaluation of customary justice systems and a resurgence of tradi-
tional leadership (Englebert 2002: 51–64; Mnisi Weeks 2015;
Oomen 2005: 1–9; Ubink 2007; Ubink and Van Rooij 2011).
The prevalence and relevance of non-state justice systems
pose serious governance challenges to sovereign states. How to
The research in Malawi was made possible by a generous grant from the Netherlands
Organization for Scientific Research (NWO) VENI grant program for the project
“Customary Legal Empowerment: A new approach to improving women’s property
rights” (Project No. 016.125.253). The research in South Africa was conducted under the
auspices of the Rural Women’s Action-Research Programme at the University of Cape
Town. Our gratitude goes out to Victoria Huwa for research assistance, to Christa Rauten-
bach for feedback on earlier drafts.
Please direct all correspondence to Janine Ubink, UC Irvine School of Law, 401 East
Peltason Drive, Irvine, CA 92697-8000; email: jubink@law.uci.edu.
Law & Society Review, Volume 51, Number 4 (2017)
V
C2017 Law and Society Association. All rights reserved.
825

effectively govern a country where each locality has its own
norms, leadership structures, and dispute settlement institutions;
where many relations and rights are regulated by customary law?
This partly is a question of which customary rights, positions, and
entitlements to recognize, but also of which fora will have the
power to decide on such issues. This article focuses on the latter
question, and discusses two different approaches taken by African
countries to the challenges their governments discern in regulat-
ing customary dispute settlement.
In the first approach, the government recognizes or formalizes
the highest level or levels of traditional dispute settlement institu-
tions. Thus formalized, these customary courts—operating under
various names such as traditional courts, customary courts, or com-
munity courts—may for instance, be permitted to make use of the
state machinery for the enforcement of their summons, decisions,
and sanctions. At the same time, formalized customary courts may
be required to administer justice in accordance with certain proce-
dural and substantive standards. Parties that are dissatisfied with cus-
tomary courts’ decisions can appeal at least some of these decisions
to state courts. This opens up possibilities for state courts to oversee
the adjudicative work of customary courts, as well as for the develop-
ment of checks and balances that can ensure adherence to proce-
dural and substantive standards. Such a system has for instance,
been introduced in Namibia (Peters and Ubink 2015), Botswana
(Kumar 2009), and Nigeria (Bello et al. 2009; Okafo 2009).
Success of this approach depends on the responsiveness of
customary courts to the new standards; whether citizens will find
their way to state courts; the extent and manner in which state
courts undertake their role as checks on customary courts, and
the extent to which state court decisions impact customary
administration and dispute settlement. Related concerns are
whether formalization gives too much power to traditional lead-
ers, for instance in the field of sanctioning, and whether it inhib-
its citizens from opting out of the customary justice system, which
can be particularly detrimental to the position of minorities and
women. These worries are compounded by the fact that custom-
ary courts often do not allow legal representation.
A second approach found in African countries is to opt for
some kind of hybrid institution that combines characteristics of
regular state courts and customary fora to be the main avenue of
customary law cases. These hybrid courts are presided over by
lay judges, with or without strong ties to local traditional authori-
ties; they apply customary and statutory law and make use of
simplified procedures and local language. They can have
recourse to the state machinery for enforcement and appeals go
to regular state courts. This type of court is meant to enhance
community members’ participation in and access to the state
826 Regulating Access to Justice in Rural South Africa and Malawi

judicial system while diminishing the caseload of regular state
courts. They can provide an alternative to, and check on, unrec-
ognized traditional dispute settlement fora and develop jurispru-
dence regarding customary law, overseen by regular state courts.
The creation of new hybrid courts to deal with customary law
cases furthermore allows for the formulation of procedural and
substantive standards these courts are to follow, and for the set-
ting of certain qualifications for the judges, such as educational
standards and language proficiency. Examples of hybrid courts
are Eritrea’s community courts (Andemariam 2011) and Zambia’s
local courts (Afronet 1998).
Success of hybrid courts depends on whether these new insti-
tutions are able to establish themselves as legitimate institutions
with knowledge and authority in the field of customary law that
operate impartially and independently from the executive, the
local traditional elite, and other local interests. That will determine
not only whether they are able to attract local disputants but also
to what extent their decisions have an impact on the decision mak-
ing of traditional dispute settlement institutions in their geographi-
cal area. In addition, it remains a question whether courts strongly
associated with customary law, where traditionally the male gender
takes center stage, will be sufficiently able to include female judges.
This problem may be compounded when traditional leaders are
given an advisory role in the selection.
Scholarship increasingly highlights political and governance
aspects of legal pluralism (Kyed 2009; Von Benda-Beckmann
et al. 2009). As the justice system is an important governance
instrument, its regulation is closely linked to questions of political
power, control, subjugation, integration, and exclusion (Roberts
1994). Authority and rights are interconnected and “the ability to
establish political power runs through the capacity to determine
who can be a rights subject, and what rights can be enjoyed”
(Lund 2016). Both policies of recognition of customary norms
and institutions and the creation of new hybrid institutions will
inevitably entail a reordering of authority and power (Von Trotha
1996; Weilenmann 2005: 5). Kyed (2009), in a study of post-war
Mozambique, points out that the official discourse of simple,
benign recognition of existing customary norms and structures
masks aspects of state intervention, regulation, and reform.
As scholarship has shown, similar processes were the hallmark
of colonialism: the customary law colonial powers “recognized”
was in fact a new hybrid, a product of struggles between the colo-
nizer and the colonized. Additionally, indirect rule policies
severely distorted local checks and balances and accountability
structures when colonial governments overrode traditional rules
of investiture and reserved for themselves the right to appoint
Ubink & Mnisi Weeks 827

and dismiss chiefs. Chiefs were furthermore “invented” where
none existed and chiefly power centralized through the creation
of hierarchies among chiefs and “tribes.” Chiefs’ actions were
now backed by state power to the detriment of lower-level deci-
sion makers such as clans, families, elders, and individuals and in
ignorance of participatory and negotiable aspects of traditional
rule (Chanock 1998; Merry 1991: 897–906; Moore 1986; Ranger
1983). Chanock (1989) describes how, in the British colonies, cus-
tomary norms that used to function as starting points of discus-
sion and negotiations were imposed as fixed rules that claimed
continuity with an African past. Such processes were particularly
detrimental to the legitimacy of traditional institutions in South
Africa, due to the harsh oppression of the colonial and apartheid
regimes (Mamdani 1996).
Policies of recognition as well as the establishment of new
hybrid institutions are thus informed by political power interests
to consolidate local power and mobilize votes, to boost popular
legitimacy, and to form or strengthen alliances with strategic local
actors. Non-state providers can similarly use state recognition
and alliances to consolidate and expand their authority. This
highlights the need to scrutinize whose interests are served by
the various institutions, whether state or non-state (Kyed 2009;
Ubink 2008). Likewise, it is important to scrutinize not just the
content of the laws and policies that delineate the powers of cus-
tomary institutions and the rights of the communities they serve
but also the processes by which these laws come into being (Mnisi
Weeks and Claassens 2011).
This article studies two countries that pose an interesting con-
trast: South Africa and Malawi. While both identified largely simi-
lar problems regarding customary dispute settlement, and named
access to justice as a key goal and motivation for legislative
change, they each chose a different approach. The South African
government proposed to reform its formalization
1
of traditional
courts, whereas Malawi rather opted for the creation of hybrid
local courts.
The data informing the analysis are derived from extensive
empirical research in traditional communities in South Africa
(Mpumalanga and KwaZulu-Natal) and Malawi (Chewa) using
ethnographic and community-based participatory research meth-
ods. The authors have interviewed ministers, judges, and govern-
ment officials, and attended parliamentary committee hearings.
1
South Africa’s traditional courts were initially formalized by the Native Administra-
tion Act 38 of 1927, which recognized (and distorted) Chiefs’ Courts. The debate over tradi-
tional courts is about reforming the formalization, initially done by a segregationist
government, to conform with democracy.
828 Regulating Access to Justice in Rural South Africa and Malawi

These data were augmented with a review of legislation, case law,
policy documents, and official speeches. These texts have been
analyzed using discourse analysis as a method, and new legal
realism provided a “bottom-up” approach to law and its impact.
The next section of this article outlines the significance of
legal pluralism as a comparative-analytical concept. Sections
South Africa and Malawi describe the approaches in South Africa
and Malawi, analyze whose interests they serve, and link the
countries’ choices to their political and governance context. In
section Conclusion: The Politics and Governance of Legal Plural-
ism, the article concludes with a comparative analysis of the case
studies and the insights they bring to the two approaches to regu-
lation of customary dispute settlement.
Legal Pluralism as a Comparative-Analytical Concept
Legal pluralism is generally defined as the presence in a
social field of more than one legal order (Griffiths 1986: 1; Merry
1988: 870). It builds on the thinking of Ehrlich, who coined the
term “living law” to explain how legal norms may arise outside
or independently of the state (Ehrlich 2002: 493). The concept of
legal pluralism was originally established as “a sensitizing con-
cept” responding to legal centralism, that is, the ideology that law
is and should be the law of the state and that other normative
orderings are hierarchically subordinate to state law (Griffiths
1986: 3; Von Benda-Beckmann 2002: 37). It was also a response
to classical legal anthropology, which until the 1950s or 1960s
tended to concentrate on small, isolated, untouched societies.
Researchers approached the customary legal systems of these
societies as autonomous legal systems, largely disregarding the
colonial government and its actors and thus unconcerned
with any interaction between state and local normative systems
and the resulting complex normative structures (Von Benda-
Beckmann 1996: 740).
Originally, studies of legal pluralism focused on the relation-
ship between state law and customary law in former colonies.
Now it is widely recognized that “virtually every society is legally
plural” (Merry 1988: 873). As Engel (1980: 427) explains, all soci-
eties display a divergence between “law in action” and “law in the
books” and “there is evidence that the divergence is not random
or haphazard but systematic.” Studies of legal pluralism now
include such diverse fields as the New York garment industry
(Moore 1973), farmers and cattle ranchers (Ellickson 1991; Engel
1980), prisoners (G
omez forthcoming), sumo wrestlers (West
1997), and stand-up comedians (Oliar and Sprigman 2008).
Ubink & Mnisi Weeks 829

In the decades following the introduction of the concept of
legal pluralism, two interrelated theoretical controversies domi-
nated the debate. These centered on the definition of law and on
whether legal pluralism should be understood as a juristic or as a
comparative-analytical concept. In the first debate, “
etatists”
argued that only normative orders emanating from the state
could be considered law. On this basis, they rejected legal plural-
ism as a concept. Legal pluralists asserted that non-state norma-
tive systems can also be labeled law. They pointed out that state
law is not the dominant normative order always and everywhere,
and that it does not differ so fundamentally from other forms of
normative ordering that any comparison between state and non-
state normative ordering is prima facie faulty (Tamanaha 1993;
Von Benda-Beckmann 1996: 743–44). Griffiths (1986: 4) articu-
lates that “(l)egal pluralism is the fact. Legal centralism is the
myth, an ideal, a claim, an illusion.”
This debate is closely connected to the distinction between
what has been called weak and strong legal pluralism. The first
term refers to a situation wherein the state recognizes more than
one normative system as law. The latter describes a situation
where, regardless of recognition by the state, multiple normative
orders exist and exert authority over people’s lives (Griffiths
1986: 5–8; Vanderlinden 1989; Woodman 1996: 157–58). Legal
pluralists point out that, “[f]rom an empirical point of view, it is
inadequate to regard the state as the sole source of normative
ordering” (Corradi 2012: 90). Weak legal pluralism may be the
formal rule in many countries; the empirical reality is one of
strong legal pluralism (Himonga et al. 2014: 47). Therefore, the
“jurisitic” view of legal pluralism cannot serve as an analytic
framework for comparative socio-legal research as it establishes a
priori the relationship between state law and other law, instead of
treating this as an empirical question.
The focus of studies in legal pluralism is on “the dialectic,
mutually constitutive relationship between state law and other
normative orders” (Merry 1988: 880). Moore (1973) advocates
approaching a research field as a “semi-autonomous social field,”
as this will draw immediate attention to interconnections of the
social field with other social fields and the larger society. This
approach emphasizes that individual behavior and processes of
interaction, struggle and negotiation within and between semi-
autonomous social fields determine what the law effectively is at a
particular time and location (Griffiths 1986: 36).
Legal pluralism provides justice seekers with a choice of nor-
mative systems and related fora, within the restrictions of the
social, cultural, and political contexts in which justice seekers
operate. The threat of forum shopping and the cumulative effect
830 Regulating Access to Justice in Rural South Africa and Malawi

of litigant choices affect forums and press them to accommodate
justice seekers’ preferences and demands (Hoekema 2004: 21–
22; Merry 1988: 883). Von Benda-Beckmann (1981: 117) details
how situations of legal pluralism not only provide opportunities
for justice seekers to shop for fora, but also for fora to be selec-
tive of which cases they want to hear in order to pursue their
local political ends. These studies all reject dualistic distinctions
between state law and non-state forms of ordering in favor of dia-
lectic analysis of their interrelations. De Sousa Santos (2002: 437)
speaks of “interlegality,” to denote that people experience the
various normative orders as “different legal spaces superimposed,
interpenetrated and mixed in our minds, as much as in our
actions.”
If it is the interaction between state law and other forms of
normative ordering that shapes the legal experiences, percep-
tions, and consciousness of people, and that determines positions
of individuals and institutional actors in their dealings with one
another, it follows that the impact of state regulation of customary
law and customary dispute settlement institutions is an empirical
question. Introducing new state legislation often has different
outcomes than expected or intended, as it may add a new layer
of normativity to the existing (plural) normative structure. Laws
and norms emanating from the state can be mobilized by institu-
tional actors and justice seekers as resources in the negotiation of
local law and social relations and for challenging or consolidating
power relations (Corradi 2012: 93–96; Oomen 2005: 211–12). As
such, “[m]uch that is new co-exists with and modifies the old,
rather than replacing it entirely” (Moore 1973: 742).
In the following sections, we will analyze the legal pluralism
policies of South Africa and Malawi, respectively, with a focus on
the interrelatedness of state regulation and local social fields, and
the political and governance aspects of the different approaches.
South Africa
Traditional courts serve as the primary justice forum for an
estimated 17 million predominantly poor South Africans (31 per-
cent of the population) living in rural areas. Although these
courts form an indispensable part of daily life, they are often at
odds with constitutional guarantees of gender equality, access to
justice, and democratic self-determination. Consequently, they are
a long-standing source of political debate and gridlock (Kaganas
and Murray 1994; Mnisi Weeks 2015; Oomen 2005).
Even while seeking to “enhance” and “promote access to
justice” by means of traditional forums, the government has
Ubink & Mnisi Weeks 831

struggled to acknowledge the practical problems faced by ordi-
nary rural people when they bring cases before traditional courts.
Instead, it has been caught in the politics of protecting traditional
leadership as an institution, a position systematically advocated by
organizations like the Congress of Traditional Leaders of South
Africa as well as traditional leaders within the ruling party and
government leadership (Comaroff and Comaroff 2009: 6–8). The
economic partnership between government and traditional lead-
ers around the exploitation of natural resources in rural areas
has been an important contextual factor. This partnership has
helped to magnify the significant role traditional leaders play—
and limit the influence ordinary people have—in determining
the powers traditional leaders can possess under legislation and
over rural people’s lives.
Until recently, the political momentum has been decidedly
in the direction of giving traditional leaders extensive,
unchecked powers. When space opened up for the renegotia-
tion of jurisdiction so that the government could choose to
establish traditional institutions anew, on an opt-in basis as in
pre-colonial times (Delius 2008), the power that traditional lead-
ers hold led the government to perpetuate the arrangements
put in place by the apartheid government (Claassens 2005: 73,
95). The Traditional Leadership and Governance Framework
Act 41 of 2003 (TLGFA) and the Communal Land Rights Act 11
of 2004 (CLRA) are expressions of this move. The latter was
passed to give traditional leaders institutionalized land adminis-
tration powers. Though the Constitutional Court struck this Act
down, the Communal Land Tenure Bill drafted in 2015 is not
much different as it effectively transfers ownership to the tradi-
tional community and allows traditional leaders and councils to
administer the land. The Traditional and Khoisan Leadership
Bill (B23-2015) amends the TLGFA in ways that allow govern-
ment departments to delegate wide-ranging powers to tradi-
tional leaders, whereas these departments currently have to
legislate such dissemination of powers. It also removes sanctions
for failure to reform the councils by electing councilors and
ensuring that women are represented.
Regulation of the traditional courts at first seemed to be tak-
ing the same direction, in the Traditional Courts Bill introduced
in 2008 and re-introduced in 2012 (B15-2008/B1-2012). The
newest Traditional Courts Bill (B1-2017), a passion project of the
new Deputy Minister of Justice and Correctional Services, how-
ever, departs from this trend. As its legislative process is just
beginning, it remains to be seen if the bill constitutes a fragile
anomaly or a new direction.
832 Regulating Access to Justice in Rural South Africa and Malawi

Present Regulatory System
At present, traditional courts continue to be recognized and
minimally regulated by the Native Administration Act of 1927
under the revised name of “Black Administration Act.” Of this
1927 legislation, only the parts that regulate traditional courts
continue to be valid.
2
The rest of the legislation has been either
repealed or struck down by the Constitutional Court.
3
This ini-
tially created a sense of urgency around generating replacement
legislation. Aside from the sheer distaste of relying on legislation
passed by a segregationist government almost a century ago, it is
widely accepted that the act is grossly out of keeping with the
courts as they exist and operate today (Maithufi et al. 2015).
In 2003, a bill to reform the regulation of traditional courts
was drafted by the South African Law Reform Commission
(SALC 2003). The Department of Justice and Constitutional
Development almost wholly rejected it (Mnisi Weeks 2012), and
subsequently introduced its own draft, the Traditional Courts Bill
(TCB), in 2008 and again in 2012. The department’s draft, which
diverged extensively from the SALRC’s (ibid), was almost wholly
rejected by the public, who felt that it forcibly imposed a gover-
nance regime that was not traditional under the pretense of it
being the people’s own.
4
In February 2014, the bill lapsed subsequent to lack of suffi-
cient support for the Bill from the provinces. Following consulta-
tion with a select but diverse group in December 2015 and a
multi-stakeholder reference group thereafter, a new draft, the Tra-
ditional Courts Bill (B1-2017), has been conceptualized. A funda-
mental objection to the TCB-2008/2012 was that, in preparing the
bill, the Department of Justice and Constitutional Development
5
had, by its own admission, mainly consulted traditional leaders
and the South African Local Government Association.
6
The bill’s
content consequently reflected a status quo bias in favor of the
interests of these institutionalized actors and excluded the interests
of ordinary people—especially those who live in rural areas and
rely on the courts for their primary access to justice.
Besides the procedural concern, the submissions made in
opposition to the TCB-2008/2012 were based on three primary
2
Sections 12, 23, Schedule 3.
3
Bhe and others v. Magistrate, Khayelitsha, and others; Shibi v. Sithole and others; South Afri-
can Human Rights Commission and another v. President of the Republic of South Africa and another
2005 (1) SA 580 (CC).
4
See public submissions, media and academic articles on the Traditional Courts Bill
(2008/2012), http://www.larc.uct.ac.za/submissions.
5
Renamed the Department of Justice and Correctional Services.
6
Memorandum on the Objects of the TCB, 2012, Clause 4.
Ubink & Mnisi Weeks 833

critiques that echoed those of the apartheid policy of indirect
rule (Mamdani 1996). First, the model of “courts” on which the
Bill was based was not reflective of the multilayered and partici-
patory structure of this system of community dispute manage-
ment forums. Second, the framework for recognizing traditional
leaders and establishing (the boundaries of) their territories is a
relic of the apartheid past and is therefore an undemocratic
imposition. Third, the ANC’s attempts to resuscitate purportedly
traditional forms of governance and justice at the expense of
democratic rights and freedoms strips ordinary rural people of
their hard-won citizenship, cultural choice, and other rights. The
TCB-2017 responds to each of these critiques to varying degrees.
Since the first of the roster of customary law legislation
enacted by the democratic government passed in 2003, the
salient question has been whether the ANC government would
finally learn from the past and take the voices and experiences of
ordinary people into account. Some might cautiously hope that
the TCB-2017 signals a subtle shift in the politics surrounding
traditional institutions toward the government allowing rural peo-
ple to articulate, live under, and continuously participate in dem-
ocratic arrangements that adhere to their own understandings of
tradition—rather than those of government and traditional lead-
ers. However, draft legislation on customary land and traditional
governance suggests otherwise.
As a political moment, the resistance to the TCB-2008/2012
allowed ordinary people to make clear that they want better tradi-
tional courts. Yet traditional leaders’ historical ability to endear
themselves to government (Claassens 2005: 73, 95; Oomen 2005:
37–86) seems to persist (Mnwana 2014: 22; Wicomb 2014: 58–59)
and, even when they operate traditional courts undemocratically,
they have been able to secure the support of the ruling party for
their role as the default justice providers in rural areas.
7
The
TCB-2017 does not alter this fact. However, it does a better job
than the draft before it of allowing observers of customary law to
choose to have their disputes settled in traditional or state courts
and holding traditional leaders accountable for abuse of power.
An Invented and Exclusive Traditional “Courts” Structure
One important critique the TCB-2008/2012 faced was that it
did not reflect the existing structure of traditional “courts” in two
7
See “Response by President Jacob Zuma to the debate of the President’s speech
delivered during the opening of the National House of Traditional Leaders; Tshwane Met-
ropolitan Council Chamber,” 20 April 2010, http://www.thepresidency.gov.za/speeches/
response-president-jacob-zuma-debate-president%27s-speech-delivered-during-opening-
national (accessed 7 September 2017).
834 Regulating Access to Justice in Rural South Africa and Malawi

main ways. First, the Bill only spoke of the senior traditional
leader playing the role of presiding officer in the community’s
traditional court and therefore did not recognize headmen’s
courts. Second, the Bill also effectively made ordinary people’s
participation in the court processes subject to the presiding offi-
cer’s control.
8
Headmen’s courts sit just beneath the community-wide senior
traditional leaders’ courts and hear disputes between members of
the ward (sub-community). Because disputes from highly authori-
tative family courts and neighborhood forums are first appealed
to the headmen’s courts (Wilson 1952), the first layer overseen by
institutional authorities, these courts hear more disputes than do
the appellate senior traditional leaders’ courts. Even traditional
leaders bemoaned the omission of lower courts (Holomisa 2011).
Furthermore, while the TCB-2008/2012 sought to replace the
Black Administration Act, the bill also perpetuated the act’s mis-
characterization of traditional courts as composed of a traditional
leader who approximates a civil court judge without a role for
ordinary members of the community in traditional courts’ deci-
sion making. By adopting the same stance, the TCB-2008/2012
would be compromising the deeply consultative and participatory
values embedded in traditional governance that proved mostly
resilient (Claassens and Mnisi 2009; Van der Waal 2004). These
include practices, described as existing in various South African
communities, such as that the senior traditional leader would not
speak until the end of a meeting or case to summarize the views
of the “community-in-council” (Dutton 1923: 59–60; Hammond-
Tooke 1975; Reader 1966: 259–60).
Although a complete separation of executive, legislative and
judicial power has never been a feature of traditional courts, the
2008/2012 bill further centralized power in the traditional leader
at the cost of a role for the community. This consolidation of
power is not permitted under the Constitution, which enshrines
separation of powers and checks and balances—features for
which some ordinary people expressed a desire. Civil society,
therefore, highlighted the skewed interests served by the bill.
9
As was conveyed to the legislative committees, in the absence
of the separation of powers, community participation plays a sig-
nificant role in holding the court and traditional leader account-
able to the will of the people (see Comaroff and Roberts 1981;
Hammond-Tooke 1975: 74; Wilson 1952). These patterns of
8
TCB-2008/2012, Sections 1, 4.
9
See the Law, Race and Gender Research Unit, Legal Resources Centre and Wom-
en’s Legal Centre submissions on the Traditional Courts Bill (2008/2012) at http://www.larc.
uct.ac.za/submissions (accessed 7 September 2017).
Ubink & Mnisi Weeks 835

accountability are already under significant strain given the dis-
torting effects that apartheid law and policy had on traditional
communities. That regulatory legislation protect such account-
ability is of particular importance because of the flexibility and
fluidity of customary law and its processes (Comaroff and Roberts
1981; Mnisi Weeks 2011), which limits the effectiveness of legal
constraints and heightens the need for community participants to
check the power of their leaders in the making and enforcement
of customary law. This demand is largely motivated by concerns
with traditional leaders using their role in traditional courts vin-
dictively against community members with whom they have a his-
tory or using the institution to benefit themselves and those in
their favor.
In a historical and contemporary context in which traditional
leaders cannot be assumed to be benevolent and community
members are not empowered to effectively hold them account-
able, those who opposed the TCB-2008/2012 argued that certain
powers assigned to traditional leaders by the bill were wide open
to abuse (Mnisi Weeks 2012). For instance, the possibility that
depriving people of their property rights could be used as a sanc-
tion under the Bill, while these rights are explicitly protected
under the Constitution, was troubling to many.
The TCB-2017 breaks from its predecessor sharply as
regards this set of concerns. It emphasises the fact that “a found-
ing value on which customary law is premised, is that its applica-
tion is accessible to those who voluntarily subject themselves to that
set of laws and customs.” It also specifies that people may not be
intimidated if they register a desire to opt out of the traditional
court’s jurisdiction.
10
It defines “traditional courts” in terms of
their “recognising the consensual nature of customary law.” The
new Bill goes on to provide that “[t]he traditional court system is
made up of such different levels as are recognized in terms of
customary law and custom.” It defines the latter as “the accepted
body of customs and practices of communities which evolve over
time in accordance with prevailing circumstances, subject to the
Constitution,” and requires that the courts “be constituted and
function under” same. It also builds in numerous qualifiers and
provisions that are intended to strengthen the accountability of
traditional court members to the parties and community at large.
It therefore denies traditional leaders the power to sanction peo-
ple by removing “customary law benefits” or use traditional
courts to benefit themselves personally.
10
This could be strengthened by allowing people to opt out by completing a simple
form or sending a letter, rather than having to appear at the clerk’s office in person.
836 Regulating Access to Justice in Rural South Africa and Malawi

The new bill declares that “the proceedings and decisions of
traditional courts are the outcome of collective deliberations of mem-
bers of the traditional courts and are not presided over by judicial offi-
cers.” Hence, it modifies the traditional leader’s power; but it
does not completely decentralize it. The TCB-2017 continues the
historical trend of South African legislation conceiving of tradi-
tional leaders as central and holding top-down authority. The
TCB-2017 states that “[m]embers of a traditional court must be
convened by a traditional leader or any person designated by the tra-
ditional leader.” Likewise, it declares that “the traditional leader
who ordinarily convenes the traditional court” may sometimes
“delegate a person or persons to convene such a session and indicate
who may participate therein.” Given that the bill has already cen-
tered the customary community in the customary dispute resolu-
tion process, the motivation for this emphasis on the traditional
leader as convening the traditional court is unclear other than to
suggest that the traditional leader still, in a manner, presides over
the proceedings.
Illegitimate Authorities and Imposed Boundaries
The second primary critique of the TCB-2008/2012 was that
it adopted the framework of the TLGFA, which recognizes tradi-
tional leaders who are in many instances illegitimate and were
imposed during apartheid (Gasa 2011). This concern should be
understood against the backdrop of the apartheid government
having removed many legitimate traditional leaders and replaced
them with people who were willing to cooperate with its policies.
The apartheid government also forced communities that had
purchased land to be governed by imposed “traditional” leaders
who were given power to administer the land on behalf of “the
tribe.” These artificial tribal formations, and the leaders imposed
upon these groups, are perpetuated by the TLGFA. A related
concern is that the jurisdictional boundaries that the TCB
ascribes to traditional courts were themselves artificially imposed
by a repressive regime. During apartheid, large swathes of people
were forcibly relocated to fictitious “homelands” (reserves) subject
to the authority of pre-existing or government-established tradi-
tional leaders in often newly defined tribes. As a result, people
who do not recognize a senior traditional leader as legitimate
would be forced to have their matters resolved by him/her.
Aside from a review process undertaken by the Commission
on Traditional Leadership Disputes and Claims, traditional lead-
ers installed by the apartheid government retain their traditional
governance positions and maintain the power to resolve local dis-
putes under the TCB. In the 14 years since its inception, this
Ubink & Mnisi Weeks 837

Commission has so far only resolved the disputes and claims per-
taining to the status of king or queen. It has not yet addressed
the numerous complaints concerning senior traditional leaders
It is not only the slow pace of the process that causes concern.
The fact that, under the TLGFA, it is the government that deter-
mines the legitimacy of a traditional leader—who then becomes,
under the TCB-2008/2012, the presiding officer of, or under the
TCB-2017, the convener and delegator of power to convene a
traditional court—independently of the community of which
(s)he is given charge is inconsistent with both custom and the
Constitution. The Constitution recognizes traditional leadership
“according to customary law,”
11
which the Constitutional Court
has found is developed by the members of a community in terms
of their practice.
12
This exclusion of ordinary people from deter-
mining who their traditional leader should be is yet another way
in which accountability of traditional leaders to their people is
undermined.
More troubling than the TCB-2017’s emphasis on the tradi-
tional leader as convener of the traditional court is that the Bill
assumes a top–down orientation of the customary dispute resolu-
tion process and system. As shown by the forum shopping litera-
ture, this is an inaccurate conception of the system. Correcting
this erroneous conception is not just important for ensuring that
acephalous communities—that is, communities that do not have a
traditional leader at the apex—can have a recognized traditional
court. It is also important for communities that are headed by a
traditional leader, as even such communities often have tradi-
tional courts created independently of the traditional leader’s
existence. In fact, scholars have overwhelmingly found that
power and authority are delegated upward from the community
to the traditional leader, not downward from him/her (Delius
2008; Hammond-Tooke 1975; Wilson 1952). The erroneous
assumption that prevails was largely imposed by colonizers who
misunderstood customary law and distorted it through legislation
(Chanock 2001; Mamdani 1996).
Most problematic of all is that, by assuming that the tradi-
tional leader who is recognized in terms of the TLGFA has such
powers as to determine who may participate in a traditional court
hearing, this provision contradicts the more accurate reflection of
customary law’s voluntary and collective nature initially stated in
the TCB-2017. Therefore, though this Bill gives the initial
impression of doing away with the apartheid credentialing of
11
Constitution, Section 211(1).
12
Shilubana and Others v. Nwamitwa 2009 (2) SA 66 (CC): paras 45, 81.
838 Regulating Access to Justice in Rural South Africa and Malawi

traditional courts, it sustains it by relying upon the recognition of
traditional leaders under the Black Authorities’ Act of 1951 that
is preserved and authenticated by the TLGFA’s transitional mech-
anisms, which have now become effectively permanent. If the
TCB-2017 seeks to part ways with its highly contested predeces-
sor (the 2008/2012 bill) and the legacy of apartheid, it should
eliminate this notion of top-down authority that is a vestige of the
distorted customary law imposed during colonialism.
Violation of Fundamental Human Rights
The TCB-2008/2012 has been challenged for resurrecting
distorted versions of traditional justice and governance to the
exclusion of numerous rights and freedoms that rural people are
entitled to as democratic citizens of South Africa. These include
the right to a fair public hearing before a court of law or inde-
pendent and impartial tribunal or forum.
13
This violation was
reflected in the failure of the TCB-2008/2012 to provide rural
people with full access to having their matters heard by the mag-
istrate’s court rather than the traditional courts. While the civil
law is the general law of the land, rural people would be
excluded from it only because, unlike urban taxpayers, they
reside in rural areas over which traditional leaders have been
declared government.
To deny rural people the ability to access state law and insti-
tutions except as mediated by their traditional leader was per-
ceived as a relegation of the rural poor to the status of subjects
rather than citizens (Claassens 2011; Mamdani 1996). This was
thought a return to apartheid’s exclusion and a contravention of
the Constitution, which sets out to undo the injustices of the past,
especially apartheid.
14
Under the Constitution, “there is a com-
mon South African citizenship” and each person “has the right to
equal protection and benefit of the law” and, with it, the right to
freely participate in the culture of his or her choosing.
15
The TCB-2008/2012’s prohibition of legal representation
constituted another rights infringement, particularly in criminal
cases.
16
The argument for not allowing legal representation in
traditional courts is compelling in so far as this would change the
relatively informal and accessible nature of the forums for poor
people. Yet, the problem of these forums being able to hear
13
Constitution, Section 34.
14
Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty)
Ltd; in re Hyundai Motor Distributors (Pty) Ltd & others v. Smit NO & others, para 21.
15
Constitution, Sections 3(10), 9(1), 30, 31.
16
Constitution, Section 35(3)(f). Cf. Rautenbach 2015:284–5.
Ubink & Mnisi Weeks 839

criminal cases and impose heavy sanctions that could be signifi-
cantly abused and negatively impact the lives of poor rural peo-
ple led advocates to argue that the bill’s failure to protect this
constitutional right must be addressed. This could be achieved by
excluding criminal jurisdiction along with lawyers, or simply
declaring that these forums are not “courts” as the Constitution
understands them, but alternative dispute resolution spaces that
could conduct mediation and arbitration on an opt-in basis.
Last, the TCB-2008/2012 would have allowed the common
customary practice that women be represented by their male kin.
It also did not require that women form part of the composition
of the courts. These facts contravene women’s rights to equal sta-
tus, benefit and protection under the law.
17
Given concerns of
corruption, and particularly women’s unequal treatment in tradi-
tional courts (Claassens and Ngubane 2008: 173–75; Curran and
Bonthuys 2005: 633; Higgins et al. 2007: 1700–01; Mnisi Weeks
2015/16), their rights to a fair public hearing were arguably also
violated by the bill.
The TCB-2017 attempts to address these critiques. Respond-
ing to the problem of patriarchy in customary communities and
the TCB-2008/2012, the TCB-2017 allows women and men alike
to represent themselves before traditional courts and be assisted
by whomever they please. It also requires that “[t]raditional
courts must be open to all members of the community.” Moreover, it
mandates that traditional courts “allow the full participation of all
interested parties without discrimination.” Regrettably, when it states
that “[m]embers of a traditional court must consist of women and
men, pursuant to the goal of promoting the right to equality as
contemplated in section 9 of the Constitution,” it does not set a
minimum quota.
The new bill goes to great lengths to permit parties to choose
their forum. It states that parties may institute proceedings “in
any traditional court.” The respondent, once summoned, may
choose “not to have his or her dispute heard and determined by
that traditional court or to appear before that traditional court”
but must inform the clerk thereof within 14 days (or longer, if
necessary). The TCB-2017 also rightly suggests that traditional
courts are not courts under Chapter 8 of the Constitution. Yet it
contains some ambiguity. It describes traditional courts as “courts
of law under customary law” when “courts of law” is the name
given to state courts in South Africa. It also finesses the distinc-
tion between civil and criminal jurisdiction, on which the consti-
tutionality of several provisions depends, as was true of the TCB-
17
Constitution, Section 9. Shilubana (above).
840 Regulating Access to Justice in Rural South Africa and Malawi

2008/2012. For instance, if traditional courts have criminal juris-
diction, the Constitution entitles parties to legal representation
before them.
Malawi
In February 2011, during the regime of the increasingly
autocratic President Bingu wa Mutharika (2004–2012), Malawi’s
Parliament promulgated the Local Courts Act (LCA).
18
This Act
legislates for new hybrid courts that combine characteristics of
state and customary fora to be the main avenue of customary law
cases. The act aims to remedy the profound lack of access to jus-
tice for the poor majority of Malawians, caused by the abolition
of earlier hybrid courts, the traditional courts. The act prompted
a lot of criticism and popular unrest, and soon after its promulga-
tion President Mutharika’s government had to bow to public
pressure and send it back to the Malawi Law Commission for
reconsideration. Two regime changes later, this is where the act
still is.
To understand the opposition against the LCA, one needs to
delve into the history of Malawi. The earlier hybrid courts, called
traditional courts, were established during the regime of dictator
Kamuzu Banda (1969–1994), who severely abused them to neu-
tralize and persecute political opponents. When President Banda
lost power, the unpopular courts were instantly effectively abol-
ished and most of their cases transferred to state courts. It soon
became clear that the poor majority of Malawians suffered from
various obstacles to find access to justice in these courts. The
1994 Constitution allowed for a return of “traditional or local
courts presided over by lay persons or chiefs” with jurisdiction
regarding civil cases at customary law and minor criminal
offences.
19
A decade after the fall of President Banda and his traditional
courts, the Malawi Law Commission was tasked to study these
options. In their 2007 report, the Special Law Commission on
the Review of the Traditional Court Act (the Special Law Com-
mission) proposed to introduce local courts presided over by lay
chairpersons assisted by assessors.
20
The name traditional courts,
as well as the inclusion of chiefs as chairpersons were shunned, to
avoid association with the erstwhile traditional courts, as it was
18
For a more elaborate discussion of the LCA and its potential to enhance access to
justice, see Ubink 2016.
19
1994 Constitution of the Republic of Malawi, Section 110(3).
20
LCA, Art. 5–8, 22.
Ubink & Mnisi Weeks 841

expected this would be met with popular opposition and would
not pass Parliament. The Special Law Commission furthermore
explained its decision from a concern that having traditional lead-
ers as judges would violate the constitutionally guaranteed sepa-
ration of legislative, administrative and judicial powers (Malawi
Law Commission, 2007: 16–17). This choice for lay chairpersons
over chiefs should also be understood from the underlying poli-
tics. Unlike in South Africa, there is no political momentum in
favor of chiefs in Malawi at the moment. They are generally not
seen as strong and important political allies. They are not well-
organized, nor vocal in the media.
While the Special Law Commission’s report focuses on the
access to justice obstacles poor Malawians face in magistrate
courts, an unspoken underlying motive of the act seems to be to
provide citizens with a state-controlled alternative to dispute set-
tlement by the traditional tribunals, the informal customary dis-
pute settlement institutions led by traditional leaders and elders
that dominate the rural areas of Malawi.
21
This too needs to be
understood within the wider political context of Malawi, charac-
terized by a formal move away from customary law as regulating
order and traditional leaders as the all-powerful local authorities
in that realm. Simultaneously to this new act, there have been
changes proposed, and some already accepted, with regard to
land management (transfer of land management from chiefs to
decentralized local land boards) (Centre for Environmental Policy
and Advocacy 2013: 3), local administration (chiefs as advisers
instead of chairs of local development committees), and intestate
succession (the Deceased Estates Act 2011 departs from custom-
ary law as it reduces the role of the extended family as beneficia-
ries of intestate estates). These changes reveal a “modernization”
attitude among at least part of the government
22
—perhaps most
pronounced among officials with a legal background
23
—and
underscore that the political momentum is rather one of dimin-
ishing the chiefs’ powers than enhancing it.
At this moment, the act does not have a champion, viz. a per-
son or interest group or political party that actively lobbies for its
implementation and the installation of local courts. None of the
21
In 2015, 16.3% of Malawi’s population lived in urban areas (World Statistics Pocket-
book, http://data.un.org/CountryProfile.aspx?crName5malawi).
22
An exception is found in the donor-supported Primary Justice Programme of the
Ministry of Local Government and Rural Development, which aims to enhance the func-
tioning of traditional tribunals and reportedly has led to a higher appreciation of the role of
traditional leaders in impact areas (Meerkotter and Watson 2011).
23
See for instance interview with Minister of Justice Ralph Kasambara, 4 June 2013,
conducted by Emma Hayward.
842 Regulating Access to Justice in Rural South Africa and Malawi

political parties or parliamentarians seem to want to fight for this
Act that caused so much unrest when it was introduced. The
leading NGOs in the field of access to justice for rural people are
approaching the issue of access to justice from different angles,
such as through improving the functioning of traditional tribu-
nals, training paralegals, and conducting legal awareness pro-
grams in villages. It is contrary to their interest to lobby for local
courts at the same time (Catholic Commission on Justice and
Peace n.d.).
24
The judiciary is not likely to take the first steps in
the creation of the local courts—selection of localities, selection
and training of chairpersons, and so forth—as long as there is no
expression of interest from the government, and the necessary
resources for the job have not been allocated.
25
Although this means that implementation of the LCA in the
immediate future is unlikely, it is hard to predict the near and
long-term future of the act. The existence of a profound lack of
access to justice for the rural poor is widely recognized, as is the
fact that the current court system will not easily be expanded and
ameliorated to deal with this issue satisfactorily. As such, a strong
case can be made for the creation of hybrid courts that would
enhance access to justice for Malawi’s poor. This may lead the
way back to the LCA once the memory of President Bingu wa
Mutharika’s increasing authoritarianism has faded, and if and
when the government of the day is regarded with less suspicion.
Increasing public knowledge and understanding of the LCA and
its divergence from the Traditional Courts Act may also contrib-
ute to this process.
To assess whether it is likely that the creation of local courts
would indeed enhance access to justice for Malawi’s poor—the
LCA’s stated aim—three aspects of these courts warrant special
discussion. The first concerns the main controversy in the public
debate, viz. the fear that the local courts can be used as instru-
ments of political oppression in a similar manner as the erstwhile
traditional courts. The second concerns the question whether the
obstacles currently hampering access to justice in magistrate
courts and traditional tribunals will not similarly hinder local
courts. The third sees to the relationship between local courts
and local traditional leaders, which impacts on the popularity and
24
See also Center for Human Rights Education, Advice and Assistance, http://chreaa.
org/, last accessed on 27 December 2013; The Paralegal Advisory Service Institute, Where
there is no lawyer. Bringing justice to the poorest of the poor., n.d., http://pasimalawi.org/down-
loads/PASI_brochure.pdf, last accessed on 27 December 2013; cf. Interview Center for
Human Rights Education, Advice and Assistance (CHREAA), 20 November 2012.
25
Interview high court justice, 15 November 2012. Interview then Attorney General
Anthony Kamanga, 16 May 2013, conducted by Emma Hayward.
Ubink & Mnisi Weeks 843

legitimacy of the local courts, as well as the local enforcement
and effect of their decisions.
Executive Abuse to Suppress Political Dissent
Popular attitude toward the local courts is heavily influenced
by Malawi’s history of traditional courts and their rather unique
role in suppressing political dissent. traditional courts were estab-
lished in 1969 as a response to the feeling that the expatriate
judiciary did not deal expediently with certain cases, due to a
combination of stringent rules of evidence and their inability to
understand “a class of case[s] in which a predominant factor is
the manifestation of some local belief in witchcraft or superstition,
or the existence of some element of African custom.”
26
These
courts were composed of one trained magistrate, and four chiefs,
the latter appointed by the Minister of Justice—a position then
occupied by President Banda himself. They could impose any
sentence including life imprisonment and the death penalty, legal
practitioners were not allowed to represent defendants unless the
Minister authorized it, and no appeal lay from a judgment of the
national traditional appeal court, which created de jure a dual court
hierarchy, with traditional courts under the Ministry of Justice and
(state) courts under the judiciary (Nyasulu 1993: 1; Pindani, 2000:
44).
27
The establishment of these courts was first applauded. Soon,
however, people started realizing that the regional traditional courts
and the national traditional appeal court were “not courts of justice
but instruments of suppression.”
28
Political opponents of President
Banda were prosecuted in these courts, where penalties were
administered despite flimsy evidence and procedural irregularities,
with the judges claiming to rely on custom when statutory law
would not provide the tools for conviction. Issues of admissibility of
evidence, the right to present witnesses, the independence and
impartiality of expert witnesses, and jurisdiction of the courts, were
all brushed aside through an appeal to tradition (Ubink 2016: 775).
One of the most infamous cases was the trial of Vera and
Orton Chirwa, political opponents of President Banda.
29
On
appeal, there clearly was a difference of opinion among the
26
Daily Debates (Hansard), seventh session, first meeting, second day, 17 November
1969, at 56.
27
Acts 5 and 38 of 1970.
28
Interview with former chief traditional courts commissioner (Nov. 28, 2012).
29
The Republic v. Orton Edgar Ching’oli Chirwa and Vera Mangazuwa Chirwa,
Criminal Cause No. 46 of 1982, southern regional traditional court in Blantyre; Orton
Edgar Ching’oli Chirwa and Vera Mangazuwa Chirwa v. The Republic, Criminal Appeal
Case No. 5 of 1983, national traditional appeal court in Blantyre (unreported, quoted in
Africa Watch 1990: 38).
844 Regulating Access to Justice in Rural South Africa and Malawi

judges of the national traditional appeal court, with the trained
magistrate pointing out the irregularities while the majority
traditional leaders turned to custom and tradition in an
attempt to legitimize the conviction of the Chirwas (Africa
Watch 1990: 38–40; Nyasulu 1993: 12; Working Group on
Arbitrary Detention 1993). For instance, the court held that “be
it in law the trial court lacked jurisdiction, the same cannot be
said at tradition” (Africa Watch 1990: 38). The judgment also
criticized the use of the chief investigating officer as an expert
witness, but then regarded “questions of independence and
impartiality [of expert witnesses as] curable technicalities”
(ibid). Equally, the majority felt that unsigned statements could
be admitted at custom and that the failure to summon a witness
was not problematic, “because ‘looking at the evidence that wit-
ness was to come and contradict,’ they did not see how he
could have contradicted the opinion of the chief investigating
officer” (ibid: 39).
In another high-profile case, a regional traditional court
accepted an anonymous letter as a piece of evidence under the
“trite observation at Malawi custom that ‘there is no smoke with-
out fire’.”
30
These miscarriages of justice are intricately connected
with the limited independence of the traditional courts, in which
appointment and employment were discriminatory and oppres-
sive, and connected to party loyalty. There was widespread execu-
tive interference, and even without direct interference traditional
leaders acting as judges in those courts felt obliged to convict the
suspects.
Heated debates around the promulgation of the LCA display
that similar political abuse of the local courts is feared by the pub-
lic (Ubink 2016). Two issues, however, make it less likely that the
procedural flexibility of customary justice used by the traditional
courts to sidestep procedural irregularities will be similarly
abused by the executive to suppress political opposition through
the local courts. First, a reading of the LCA reveals that the legal
structure of the local courts differs significantly from the tradi-
tional courts. The local courts have much more limited jurisdic-
tion, especially with regard to criminal cases, as well as powers of
sanctioning; they do not fragment a unified judicial system, but
are integrated into the judiciary and superseded by the high
court; local court chairpersons are selected by the Chief Justice,
need to be literate and will receive training, particularly on crimi-
nal procedure; and legal practitioners may represent any party in
30
The Republic v. AlbertAndrew Muwalo Nqumayo and Focus Martin Gwede, Crimi-
nal Cause No. 1 of 1977 in the southern regional traditional court at Blantyre (unreported,
quoted in Africa Watch 1990: 33–36; Pindani 2000: 47–48).
Ubink & Mnisi Weeks 845

a criminal matter before a local court.
31
Second, and even more
important than the legal structure per se, is the significantly dif-
ferent context in which the local courts will be operating. The
miscarriages of justice in the regional and national traditional
courts were intricately connected to the limited independence of
these courts, in an era with a dictatorial regime and a strong party
presence with leaders not hindered by scruples from interfering in
court processes that paved the way for the “judicialization of
repression” (Pereira 2008). Malawi is no longer an authoritarian
state. While it is far from a fully-fledged democracy, the scale of
executive influence on courts in the last decade is incomparable to
what it was during the regime of President Banda. As such, abuse
of the procedural flexibility of customary law is much less likely to
occur.
Obstacles to Access to Justice
We now move on to the question whether the obstacles cur-
rently hampering access to justice in magistrate courts and tradi-
tional tribunals will not similarly hinder the operation of new
local courts. The literature mentions several barriers to accessing
justice in magistrate courts. These include geographical distance,
people’s limited legal awareness and understanding of the lan-
guage spoken, and procedures followed at magistrate courts—the
latter being particularly problematic in combination with the pas-
sive attitude of magistrates and the fact that most parties are
unrepresented. Furthermore, lack of support services and bad
work ethics of largely unsupervised magistrates result in long
delays in the hearing of cases and delivery of judgments, and a
growing perception of corruption (Kanyongolo 2006: 131–142,
144; Malawi Law Society 2013: 3; Sch€
arf, et al. 2002: 7–10;
WLSA 2000: 58–63). Additionally, magistrate courts are criticized
for the way they apply customary law. Magistrates’ limited knowl-
edge and appreciation of customary law, compounded by their
rotation nationally and a tendency to bring their common law
approach to the province of customary law, all lead magistrates to
ignore customary practices or dismiss them as backward (Malawi
Law Commission 2007: 17; Manda 2012: 52–53; Cf. Sch€
arf et al.,
2002: 12, 20, 21).
32
On paper, several characteristics of the local courts may
reduce the likelihood of experiencing similar obstacles to access-
ing justice to those currently encountered at the magistrate
31
LCA, Art. 40(1), 41(2).
32
See interviews District Commissioner, 8 March 2013; Justice of the supreme court
of appeal, 12 March 2013; Magistrate, 21 June 2013.
846 Regulating Access to Justice in Rural South Africa and Malawi

courts. These include the closer geographical distance of local
courts, their use of local language,
33
and the fact that they are
chaired by persons with “adequate knowledge” of local customary
law, who are not educated in overly formal procedures and are
assisted by assessors with like knowledge of local customary law.
It remains to be seen how the criteria “adequate knowledge of
customary law” will be applied.
Additionally, although still to be drafted by the Chief Justice,
the simpler procedures envisaged may address the issue of dis-
puting parties’ lack of understanding of procedures and allow for
a more active role of the chairperson in the proceedings. The
proposed Local Court (Civil Procedure) Rules state that the hear-
ing of civil cases shall be in accordance with customary law proce-
dure.
34
This would most likely mean few formal rules regarding
admissibility of evidence and would possibly allow broad partici-
pation of the audience as witnesses and commentators and the
inclusion of personal knowledge of assessors and chairpersons as
evidence, procedural aspects people are familiar with from tradi-
tional dispute settlement institutions. This is by no means certain,
though, as in South Africa governmental regulation of traditional
courts has led to their increased formalization (Mnisi Weeks
2015/2016). In a similar way here, governmental regulation could
have a formalizing impact on the hybrid courts’ (customary) civil
procedures.
Traditional tribunals, which process the majority of rural dis-
putes, have their own problems. They are criticized for the
unequal protection of vulnerable groups including women and
children and prejudice in favor of kin and locals vis-
a-vis non-kin
and foreigners. Much like those in South Africa, they are also
censured for the levying of court fees that obstruct access for the
poorest, and for the custom of bringing monetary gifts to tradi-
tional leaders, which causes allegations of bias and corruption, an
issue linked to the limited accountability of traditional leaders to
the people. There are also concerns about certain procedures, in
particular with regard to evidence, due process and record-
keeping (De Gabriele and Handmaker 2003; International Orga-
nisation Development Ltd. 1999; Meerkotter and Watson 2011;
Ubink forthcoming). The operation of traditional tribunals is fur-
ther said to be hampered by the waning authority and influence
of traditional leaders within their communities, which negatively
impacts on people’s compliance with summonses and the rate of
33
LCA, Article 19(1).
34
LCA, Article 15, 46; Local Court (Civil Procedure) Rules, Article 19(1).
Ubink & Mnisi Weeks 847

acceptance of decisions and sanctions. This is compounded in
more ethnically mixed communities.
Some of these problems associated with traditional tribunals
are also possibly avoided in local courts. Several features of the
local courts are relevant here. First, local court chairpersons have
to be literate and in possession of a high school diploma. In addi-
tion, they will receive several months of training, with a particular
focus on record-keeping and procedural law—especially with
regard to criminal jurisdiction—and one would expect the pro-
tection of vulnerable groups. The fact that local courts are not
connected to customs of gift-bringing will make it self-evident
when a transaction of money is illicit. Supervision through the
appeal system in combination with the recording of cases by the
chairpersons theoretically goes some way toward curtailing bias,
prejudice and corruption. Last, the state machine backing of the
powers of summoning and execution of court orders is an impor-
tant difference with the traditional tribunals, regarding an aspect
mentioned by local people as hampering the effectiveness of the
traditional tribunals.
While the real test will lie in the implementation of the LCA,
several features of the proposed local courts are likely to diminish
the obstacles that Malawi’s rural poor currently face in their
search for justice. These gains will, however, be partly offset by
the exclusion of a number of important legal fields from their
jurisdiction. Under the LCA, the local courts have jurisdiction
regarding the administration of customary law in civil matters but
several important subjects are excluded from jurisdiction, includ-
ing disputes regarding land, inheritance, custody, witchcraft, and
chieftaincy.
35
The rationale behind this exclusion was that these
subjects “are handled to the detriment of women and children
due to established customs and other matters which result in per-
secution of subjects” (Malawi Law Commission 2007: 11). As a
considerable number of disputes in rural Malawi center on these
issues, the exclusion significantly diminishes any gains in access to
justice the local courts may bring. Furthermore, the presumption
underlying the exclusion—viz. that such disputes will then be
handled by magistrate courts or high courts, where they can be
determined in accordance with all the necessary protection of
women and children—is questionable. Considering the limited
access to these state courts, it seems likely that the majority of
these disputes will be handled in traditional tribunals. This does
not tally with the underlying objective of the LCA, which is to
provide an alternative forum to traditional tribunals, particularly
35
LCA, Article 18.
848 Regulating Access to Justice in Rural South Africa and Malawi

in cases of unsatisfactory treatment of vulnerable groups such as
women and children.
The limited civil jurisdiction of the local courts can perhaps
be seen as a missed opportunity to have these courts operate as
accessible institutions to create awareness of new statutory norms,
especially in those fields where rights of vulnerable groups are
violated under custom (Ubink 2016: 763). The local courts are to
operate with simple procedures and in the local language. Their
chairpersons come from the locality, and if properly trained and
sensitized, they should know and understand both local custom-
ary law and constitutional norms. As such, the local courts could
operate as an ideal channel for providing litigants with an under-
standing of their legal rights and for enhancing awareness in the
general population of women’s and children’s equal rights to pro-
tection. On the other hand, one could argue that it would be
more effective to stimulate protection of women’s and children’s
rights at the traditional tribunals than to create a new forum and
hope that their normative pronouncements will trickle down to
the traditional tribunals and the locality. Especially considering
that the government is trying to enhance the functioning of
traditional tribunals through the “Primary Justice Program,” a
program which has shown some success, including regarding
responsiveness to women’s needs and reduction of negative cul-
tural practices (De Gabriele and Handmaker 2003: 14, 17, 19,
34; International Organisation Development Ltd. 1999: 25, 32,
36, 52, 56, 57; Meerkotter and Watson 2011: 4, 21).
36
Traditional Leaders
Policy debates regarding access to justice often consider the
subject largely from the angle of service provision, but the justice
system is also one of the most important governance instruments
and therefore closely linked to questions of political power, con-
trol, subjugation, integration, and exclusion (cf. Weilenmann
2005: 5). When talking of access to justice for rural inhabitants,
involving local resources and customary norms, one such ques-
tion involves traditional leadership. Some claim that the LCA—
drafted by the Special Law Commission composed of judges and
lawyers—fits in the earlier described pattern of disempowerment
of chiefs, as part of the modernization drive that was particularly
pronounced among lawyers.
37
Malawi’s Minister of Justice iter-
ated that the LCA was “part of a wider governmental policy that
36
For an evaluation of this program, see Ubink forthcoming.
37
Interview Enoch Chibwana, former chief traditional courts commissioner and
ombudsman, 25 May 2013, conducted by Emma Hayward.
Ubink & Mnisi Weeks 849

aims to erode the power of the chiefs.”
38
Others, however, see
the LCA as an expansion of chiefly authority “because it gives
them a real foothold in the formal court system because they
have unparalleled power to set legal content.”
39
The LCA does
not detail the relationship between local courts and traditional
leaders and many questions will only be answered in the imple-
mentation phase: will traditional leaders have a say in the selec-
tion of chairpersons and assessors; could traditional leaders and
elders that serve as councilors on the traditional tribunals also be
selected as local court assessors; what role will the advice of asses-
sors play in determining the decisions of the local court chairper-
sons; will the relationship between traditional leaders and local
court personnel be amicable or competitive; and to what extent
will local courts personnel be independent from traditional
leaders?
What is clear, however, is that most of the disputants who will
access the local courts could take their disputes to a traditional
tribunal instead or will indeed have been there first. Considering
this competitive relationship between the institutions, it is not
unlikely that traditional leaders will see the local courts as
encroaching upon their powers as well as endangering a source
of income. In an earlier phase of Malawi’s court development,
the introduction of third grade magistrate courts caused friction
with traditional leaders in some areas.
40
Similar discord may be
expected in certain areas now. And indeed, several people
reported that traditional leaders have expressed dissatisfaction
with the LCA, which they feel takes away powers that belong to
them, and expect that the local courts will bring a wrangle over
power.
41
Some traditional leaders are reportedly so offended by
the LCA and the new courts that they have chased local magis-
trates from their court buildings.
42
Although likely to occur, disagreements and tensions between
local court personnel and traditional leaders regarding particular
decisions or involving power struggles in general seem not to
have been considered by the Special Law Commission. One of its
38
Interview Minister of Justice Ralph Kasambara, 4 June 2013, conducted by Emma
Hayward.
39
Interview Justice Ken Manda, 21 May 2013, conducted by Emma Hayward.
40
Interview former traditional court clerk and administrative officer, 26 November
2012.
41
Interviews magistrate, 20 May 2013, Human Rights Commission, 24 May 2013,
magistrate, 26 July 2013, conducted by Emma Hayward. Field notes of Emma Hayward are
on file with the authors. See also Hayward forthcoming 2016.
42
Interview high court justice, 15 November 2012; Interview Center for Human
Rights Education, Advice and Assistance (CHREAA), 20 November 2012.
850 Regulating Access to Justice in Rural South Africa and Malawi

members, then Malawi’s Attorney General, reported that he
expected the chiefs’ willing cooperation in moving the local
courts forward.
43
This attitude does not seem to acknowledge
that conflicts with traditional leaders have the potential to signifi-
cantly affect the functioning and legitimacy of the local courts, as
well as the local enforcement and impact of their decisions.
According to several respondents, traditional authorities have the
capacity to prevent community members from going to court.
44
For instance, by framing the local courts as alien and imposed
institutions, traditional authorities can create a stigma against
using that institution to seek justice (Anderson 2003). One tradi-
tional authority stated that if he does not like the setup of the
local courts, he will refuse to cooperate: “If someone wants to act
in my jurisdiction, they have to do what I say. I will not accept
that they function independently within my jurisdiction. I have to
uphold the peace in my area. I cannot do that with rival
courts.”
45
While the above emphasizes the importance of local courts
personnel developing a good relationship with traditional leaders,
this also comes with certain risks. A relationship that is too close,
or one of dependency of local courts on traditional leaders, may
hamper the local courts in their functioning as a check on tradi-
tional tribunals and may make it difficult for local courts to assess
whether customary law meets constitutional standards.
Conclusion: The Politics and Governance of Legal Pluralism
We have presented two countries that, despite different histo-
ries, evidence great similarity in concerns regarding traditional
courts as primary forums through which justice is to be accessed.
For their similar problems in managing legal and institutional
pluralism, Malawi and South Africa have adopted very different
solutions. In Malawi, the problems of traditional tribunals and
the limited access ordinary people have to state courts led the
government to rethink where and how rural people can find
redress for their grievances, and to create a hybrid institution. In
South Africa, the government—despite widespread criticism of
the traditional courts—was determined to retain the traditional
courts as part of a wider politics of preserving the institution of
traditional leadership.
43
Interview Anthony Kamanga, 16 May 2013, conducted by Emma Hayward.
44
Interview Human Rights Commission, 24 May 2013, and magistrate, 4 July 2013,
conducted by Emma Hayward.
45
Interview traditional authority, 26 June 2013, conducted by Emma Hayward.
Ubink & Mnisi Weeks 851

Within their relative complexity, the two country cases dem-
onstrate the importance of “unpacking the local.” Each country’s
regulatory choice is embedded in its history and political experi-
ence, particularly regarding the role of traditional leaders and
their courts during the colonial period and various post-colonial
regimes. Solutions chosen are shaped by countries’ contextual
constraints and the direction taken by local momentum. For
instance, bound by deep ties with traditional leaders and embed-
ded in a rhetoric of reclaiming African culture and institutions
from apartheid, the South African government rejects any option
that does not preserve traditional courts as the domain of tradi-
tional leaders. In contrast, the political abuse of traditional courts
under Banda is the most vivid memory in the collective mind of
Malawi and has led to the choice of hybrid courts led by lay
chairpersons. This move is also informed by a negative view of
customary law and a modernization approach adopted by parts
of the government, alongside the limited power of Malawi’s
chiefs—both in the political arena and over economic resources.
Institutionally speaking, in Malawi, the worry seems to be abuse
by either traditional leaders or government rather than by local
courts’ chairs. The local courts were, therefore, also partly cre-
ated to operate as a check on the traditional justice system.
These case studies reiterate that the regulation of the justice
system and the relationship between the constituent normative
orders is closely linked to questions of political power and control
and inclusion and exclusion. Whether recognizing/formalizing
customary justice institutions or introducing alternative hybrid
institutions, there is an inevitable change in power relations. In
South Africa, we saw the government’s resistance to decentraliz-
ing chiefly power and urge to consolidate distortions introduced
during apartheid in the name of protecting custom. In reality, its
agenda is to protect traditional leadership and, thereby, “buy” the
rural vote that it believes traditional leaders control, close the
gaping hole left by the collapse of local government in rural
areas, and get easy access to natural resources in rural areas.
Robust critical engagement from the public made the govern-
ment change course in the TCB-2017, which engages more effec-
tively, but still imperfectly, with the lived realities of ordinary
people and customary law in practice. In Malawi, the power
dynamics are ambiguous. The hybrid local courts chaired by
laypersons could diminish as well as enhance the local power of
traditional leaders, depending on the particularities of the rela-
tionship between the two institutions. Popular unrest during the
legislative process largely focused on the risk of political abuse of
the local courts by the government in power, which was
compounded by the increasing authoritarianism of the then
852 Regulating Access to Justice in Rural South Africa and Malawi

government. In both countries, these power dimensions deter-
mine (and partially explain) who support and who resist the pro-
posed laws, at the local level and at the national political level. In
both contexts, political changes could radically alter future
outcomes.
The two country cases we have focused on in this article give
us insight into the two models described in the introduction. Each
model evidently has its own strengths and weaknesses. No single
model is inherently better than the other and all models are not
equally possible in the context of the local reality of a country.
Neither recognition/formalization of customary dispute settle-
ment institutions nor the introduction of hybrid institutions is as
straightforward as governments present it. State recognition of
non-state normative orderings never entails a wholesale accep-
tance of these systems. It is usually partial, conditional, and
meant to make the customary order governable by aligning it
with certain normative values of the state. The embrace of cus-
tom is part of a state’s assertion of sovereignty by seeking to
make the customary realm dependent on, and regulated by, the
state. It can include the imposition of state courts for appeal, an
attempt to subordinate customary dispute settlement authority to
the state’s authority. Recognition and formalization thus imply
far-reaching state intervention, regulation, and reform. Such
reform may weaken structures of traditional authority and cus-
tomary dispute settlement, at least vis-
a-vis the government, state
law, and state courts, while also strengthening these institutions
vis-
a-vis their own people by undermining local checks and balan-
ces and accountability structures. The public may demand the
former but reject the latter, but administrative efficiency, ques-
tions of sovereignty, and elite partnerships outweigh real con-
cerns for the local people operating within the customary realm.
This has been widely described concerning the colonial period,
and South Africa provides a contemporary example.
The replacement of customary dispute settlers with hybrid
courts at first glance seems the opposite approach to regulating
customary dispute settlement, but has the same goals of increas-
ing state sovereignty and reach over rural areas underlying the
more visible aspirations of increasing access to justice for the
poor majority. The state in this way aims to diminish the power
of traditional rulers and dispute settlers, and is often inspired by
a modernization impulse. Despite the formal replacement of cus-
tomary dispute settlement institutions, in practice, chiefs and eld-
ers will often remain heavily involved in dispute settlement. In
fact, as discussed for Malawi, the functioning of the newly created
institutions may be profoundly affected by a cooperative or antag-
onistic relationship with local traditional leaders and elders. This
Ubink & Mnisi Weeks 853

relationship is mutually constitutive, with forum shopping shap-
ing both institutions’ legitimacy and independence, as well as the
local acceptability and enforceability of their decisions.
Local populations are not ignorant of the underlying goals of
the regulation of legal pluralism. In South Africa, the TCB-2008/
2012 faced strong opposition because the bill was seen as changing
customary dispute management to allow less participation and
accountability. In Malawi, notwithstanding all the good intentions
regarding increasing access to justice, the people were reminded
of earlier hybrid institutions that abused the procedural flexibility
of customary law to circumvent the safeguards of statutory crimi-
nal law. While the local courts are very different in structure and
legal powers, the public was suspicious of the real intentions of the
increasingly authoritarian government in introducing these courts.
In both cases, popular opposition managed to derail the legislative
process and/or the implementation of the act.
In the end, whatever model is used, the reality of customary
justice systems and the case studies of South Africa and Malawi
bring to the fore that specific attention needs to be given to the
fact that, as an empirical reality, legal and institutional pluralism
produces winners and losers. Thus, the processes by which such
pluralism is negotiated and local power relations ossified in regu-
lation are crucial. In settling on the appropriate model for the
context, and its terms of implementation, primary emphasis
should be placed on the protection of vulnerable groups.
References
Africa Watch (1990) Where Silence Rules: The Suppression of Dissent in Malawi. New York:
Human Rights Watch.
Afronet (1998) “The Dilemma of Local Courts in Zambia. A Question of Colonial Legal Contin-
uitity or Deliberate Customary Law Marginalisation?” Afronet Report on the Judicial
Sector Administering Customary Law. Lusaka: Afronet.
Andemariam, Senai (2011) “Ensuring Access to Justice through Community Courts in
Eritrea,” in J. Ubink, ed., Customary Justice: Perspectives on Legal Empowerment. Rome:
International Development Law Organization.
Anderson, Michael R. (2003) “Access to Justice and Legal Process: Making Legal Institutions
Responsive to Poor People in LDCs.” Institute of Development Studies Working Paper
178, Available at: https://www.ids.ac.uk/files/dmfile/Wp178.pdf (accessed 7 Septem-
ber 2017).
Bello, Moses A.D, N. M. Jamo, & A. M. Madaki (2009) Administration of Justice in the Cus-
tomary Courts of Nigeria: Problems and Prospects: Legal Essays in Honour of Hon. Justice
Moses Ad Bello Ofr, President, Customary Court of Appeal, Abuja. Zaria: Ahmadu Bello
Univ.
Catholic Commission for Justice and Peace (n.d.) Malawi Primary Justice Program: Three
Years of Implementation, 2007–2010. [unpublished report].
Centre for Environmental Policy and Advocacy (2013) Review of the Land Bills 2013.
Blantyre: Centre for Environmental Policy and Advocacy.
854 Regulating Access to Justice in Rural South Africa and Malawi

Chanock, Martin (1989) “Neither Customary nor Legal: African Customary Law in an
Era of Family Law Reform,” 3 International J. of Law and the Family 172–87.
——— (1998) Law, Custom and Social Order: The Colonial Experience in Malawi and Zambia.
Portsmouth: Heinemann.
——— (2001) The Making of South African Legal Culture, 1902–1936: Fear, Favor and Preju-
dice. Cambridge: Cambridge Univ. Press.
Claassens, Aninka (2005) “Women, Customary Law and Discrimination: The Impact of
the Communal Land Rights Act,” 2005 Acta Juridica 42–81.
——— (2011) “Resurgence of Tribal Levies: Double Taxation for the Rural Poor,” 35
South African Crime Q. 11–16.
Claassens, Aninka & Sindiso Mnisi (2009) “Rural Women Redefining Land Rights in the
Context of Living Customary Law,” 25 South African J. on Human Rights 491–516.
Claassens, A. & Sizani Ngubane (2008) “Women, Land and Power: The Impact of the
Communal Land Rights Act,” in A. Claassens & B. Cousins, eds., Land, Power &
Custom: Controversies Generated by South Africa’s Communal Land Rights Act. Athens:
Ohio Univ. Press.
Comaroff, John & Jean Comaroff (2009) Ethnicity, Inc. Chicago: Univ. of Chicago Press.
Comaroff, John & Simon Roberts (1981) Rules and Processes: The Cultural Logic of Dispute
in an African Context. Chicago: Univ. of Chicago.
Corradi, Giselle (2012) “Advancing Human Rights in Legally Plural Africa: The Role of
Development Actors in the Justice Sector.” PhD. diss., Department of Public Law,
Ghent Univ..
Curran, Erica & Elsje Bonthuys (2005) “Customary Law and Domestic Violence in Rural
South African Communities,” 21 South African J. on Human Rights 607–35.
De Gabriele, Joseph & Jeff Handmaker (2003) “Primary Justice Pilot Projects: Consultants’
Final Report.” Unpublished paper, Sustainable Development Network Program.
De Sousa Santos, Boaventura (2002) Toward a New Legal Common Sense: Law, Globalization,
and Emancipation. Cambridge: Cambridge Univ. Press.
Delius, Peter (2008) “Contested Terrain. Land Rights and Chiefly Power in Historical
Perspective,” in A. Claassens & B. Cousins, eds., Land, Power & Custom: Controversies
Generated by South Africa’s Communal Land Rights Act. Athens: Ohio Univ. Press.
Dutton, Major Eric (1923) The Basuto of Basutoland. London: Jonathan Cape.
Ehrlich, Eugen. (2002) Fundamental Principles of the Sociology of Law. New Brunswick:
Transaction Publishers.
Ellickson, Robert C. (1991) Order without Law: How Neighbors Settle Disputes. Cambridge:
Harvard Univ. Press.
Engel, D. M. (1980) “Legal Pluralism in an American Community: Perspectives on a
Civil Trial Court,” 5 Law & Social Inquiry 425–54.
Englebert, Pierre (2002) “Patterns and Theories of Traditional Resurgence in Tropical
Africa,” 30 Mondes en D
eveloppement 51–64.
Gasa, Nomboniso (2011) “The Traditional Courts Bill: A Silent Coup?,” 35 South African
Crime Q. 23–29.
G
omez, M. A. (2018) “Goon Justice: Social Order, Dispute Processing and Adjudication
Inside a Venezuelan Prison,” 8 UC Irvine Law Rev.
Griffiths, John (1986) “What is Legal Pluralism?,” 24 J. of Legal Pluralism 1–50.
Hammond-Tooke, W. D. (1975) Command or Consensus: The Development of Transkeian
Local Government. Cape Town: D Philip.
Hayward, Emma (forthcoming) “Legal Pluralism and Group Rights: States and the
Decentralization of Judicial Power.” PhD. diss., Comparative Politics and Public
Law. Philadelphia: Univ. of Pennsylvania.
Higgins, Tracy, Jeanmarie Fenrich, & Ziona Tanzer (2007) “Gender Equality and Cus-
tomary Marriage: Bargaining in the Shadow of Post-Apartheid Legal Pluralism,”
30 Fordham International Law J. 1653–708.
Himonga, Chuma, et al. (2014) African Customary Law in South Africa: Post Apartheid and
Living Law Perspectives. Cape Town: Oxford Univ. Press.
Ubink & Mnisi Weeks 855

Hoekema, A. (2004) “Rechtspluralisme en Interlegaliteit.” Presented at Inaugural Lec-
ture, Univ. of Amsterdam. Amsterdam.
Holomisa, Phathekile (2011) “Balancing Law and Tradition: The TCB and its Relation
to African Systems Justice Administration,” 35 South African Crime Q. 17–22.
International Organisation Development Ltd. (1999) Primary Safety, Security and
Access to Justice Systems in Rural Malawi.
Kaganas, Felicity & Christina Murray (1994) “The Contest Between Culture and Gen-
der Equality Under South Africa’s Interim Constitution,” 21 J. of Law and Society
409–33.
Kanyongolo, Fidelis Edge (2006) “Malawi: Justice Sector and the Rule of Law: A Discussion
Paper,” London: Open Society Initiative for Southern Africa.
Kumar, Rekha A. (2009) “Customary Law and Human Rights in Botswana: Accredited Sur-
vival of Conflicts.” University of Denver Working Paper 52, 2009. Available at:
http://www.du.edu/korbel/hrhw/workingpapers/2009/52-kumar-2009.pdf (accessed
7 September 2017).
Kyed, Helene M. (2009) “The Politics of Legal Pluralism: State Policies on Legal Pluralism
and Their Local Dynamics in Mozambique,” 41 The J. of Legal Pluralism 87–120.
Lund, Christian (2016) “Rule and Rupture: State Formation through the Production of
Property and Citizenship,” 47 Development and Change 1199–228.
Maithufi, IP, Sindiso, Mnisi Weeks, Lesala, Mofokeng, & Dial, Ndima (2015) “Traditional
Courts,” In C. Himonga, & T. Nhlapo, eds., African Customary Law in South
Africa. Post-Apartheid and Living Law Perspectives. Cape Town: Oxford Univ.
Press Southern Africa.
Malawi Law Society, (2013) Speech by the Chairperson of the Malawi Law Society Mr
Mandala Mambulasa delivered at the commencement of the Michaelmas session on
30th September 2013 at the High Court of Malawi, Blantyre.
Malawi Law Commission (2007) “Report of the Law Commission on the Review of the Tradi-
tional Courts Act.” Law Commission Report.
Mamdani, Mahmood (1996) Citizen and Subject: Contemporary Africa and the Legacy of Late
Colonialism. Princeton: Princeton Univ. Press.
Manda, Kenan (2012) “Courts and the Application of Customary Law in Malawi:
Towards the Reintroduction of Local Courts,” in T. Bennett, et al., eds., African Per-
spectives on Tradition and Justice. Antwerpen: Intersentia.
Meerkotter, Anneke & Rob Watson (2011) “DfID Malawi Safety Security and Access to Jus-
tice Programme Impact Analysis Study.” Draft report, Department for International
Development.
Merry, Sally E. (1988) “Legal Pluralism,” 22 Law & Society Rev. 869–96.
——— (1991) “Law and Colonialism (book review),” 25 Law and Society Rev. 889–922.
Mnisi Weeks, Sindiso (2011) “Beyond the Traditional Courts Bill: Regulating Customary
Courts in Line with Living Customary Law and the Constitution,” 35 South African
Crime Q. 31–40.
——— (2011) “Securing Women’s Property Inheritance in the Context of Plurality:
Negotiations of Law and Authority in Mbuzini Customary Courts and Beyond,”
2011 Acta Juridica 140–73.
——— (2012) “Regulating Vernacular Dispute Resolution Forums: Controversy Con-
cerning the Process, Substance and Implications of South Africa’s Traditional
Courts Bill,” 12 Oxford Univ. Commonwealth Law J. 133–55.
——— (2015) “Access to Justice? Traditional Justice and the Search for Human Security
in Rural South Africa,” 60 New York Law School Rev. 227–50.
——— (2015) “Contested Democracy and Rule of Law(s) in Pluralistic Societies: The
Example of South Africa,” in M. Galuppo, et al., eds., Human Rights, Rule of Law
and the Contemporary Challenges in Complex Societies. Belo Horizonte: Initia Via.
Mnisi Weeks, Sindiso & Aninka Claassens (2011) “Tensions Between Vernacular Values
that Prioritise Basic Needs and State Versions of Customary Law that Contradict
Them,” 2011 Stellenbosch Law Rev. 823–44.
856 Regulating Access to Justice in Rural South Africa and Malawi

Mnwana, Sonwabile (2014) “Chief ’s Justice? Mining, Accountability and the Law in
the Bakgatla-ba-Kgafela Traditional Authority Area,” 49 South African Crime Q.
21–29.
Moore, Sally F. (1973) “Law and Social Change: The Semi-Autonomous Social Field as
an Appropriate Subject of Study,” 7 Law & Society Rev. 719–46.
——— (1986) Social Facts and Fabrications: “Customary” Law on Kilimanjaro, 1880–
1980. Cambridge: Cambridge Univ. Press.
Nyasulu, Ink (1993) Towards a Single Hierarchy Judical System. Lilongwe: Malawi Magis-
trates’ and Judges’ Association.
Okafo, Nonso (2009) Reconstructing Law and Justice in a Postcolony. Surrey, UK: Ashgate
Publishing.
Oliar, Dotan & Chistopher Sprigman (2008) “There’s No Free Laugh (Anymore): The
Emergence of Intellectual Property Norms and the Transformation of Stand-Up
Comedy,” 94 Virginia Law Rev. 1787–867
Oomen, Barbara (2005) Chiefs in South Africa: Law, Power and Culture in the Post-Apartheid
Era. Oxford: James Currey.
Pereira, Anthony W. (2008) “Of Judges and Generals: Security Courts under Authoritar-
ian Regimes in Argentina, Brazil, and Chile,” in T. Ginsberg & T. Moustafa, eds.,
Rule by Law: The Politics of Courts in Authoritarian Regimes. Cambridge: Cambridge
Univ. Press.
Peters, Eline A. & Janine M. Ubink (2015) “Restorative and Flexible Customary Proce-
dures and Their Gendered Impact: A Preliminary View on Namibia’s Formaliza-
tion of Traditional Courts,” 47 The J. of Legal Pluralism 291–311.
Pindani, Disher G. (2000) “The Role and Function of Traditional Courts in Malawi: Mis-
carriage of Justice?,” 1 Recht in Africa (J. of the African Law Association-Germany) 43–55.
Ranger, Terence (1983) “The Invention of Tradition in Colonial Africa,” in E. J. Hobsbawm
&T.Ranger,eds.,The Invention of Tradition. Cambridge, Cambridge Univ. Press.
Rautenbach, Christa (2015) “Legal Reform of Traditional Courts in South Africa:
Exploring the Links Between Ubuntu, Restorative Justice and Therapeutic Juris-
prudence,” 2 J. of International and Comparative Law 275–304.
Reader, D.H. (1966) Zulu Tribe in Transition: The Makhanya of Southern Natal. Manchester:
Manchester Univ. Press.
Roberts, Simon (1994) “Law and Dispute Processes,” in T. Ingold, ed., Companion Ency-
clopaedia of Anthropology: Humanity, Culture and Social Life. New York: Routledge.
Sch€
arf, Wilfried, et al. (2002) “Access to Justice for the Poor of Malawi? An Appraisal of Access
to Justice Provided to the Poor of Malawi by the Lower Subordinate Courts and the Custom-
ary Justice Forums.” Report prepared for the Department of International
Development.
South African Law Reform Commission (SALC) (1999) “The Harmonisation of the
Common Law and Indigenous Law: Traditional Courts and the Judicial Function
of Traditional Leaders.” Discussion Paper 82 Project 90, Pretoria: The
Commission.
——— (2003) “Report on Traditional Courts and the Judicial Function of Traditional Leaders.”
Project 90. Pretoria.
Tamanaha, Brian (1993) “The Folly of the ‘Social Scientific’ Concept of Legal Pluralism,”
20 J. of Law and Society 192–217.
Ubink, Janine M. (2007) “Traditional Authority Revisited: Popular Perceptions of Chiefs
and Chieftaincy in Peri-Urban Kumasi, Ghana,” 39 J. of Legal Pluralism 23–61.
——— (2008) Traditional Authorities in Africa. Resurgence in an Era of Democratisation. Lei-
den: Leiden Univ. Press.
——— (2016) “Access vs. Justice: Customary courts and political abuse, lessons from
Malawi’s Local Courts Act,” 64 American J. of Comparative Law 745–84.
Ubink, Janine M. (forthcoming) “Customary Legal Empowerment in Malawi? Rule of
law programming in a context of legal pluralism,” in S. Mancuso & C. Rautenbach,
eds., Festschrift for Tom Bennett.
Ubink & Mnisi Weeks 857

Ubink, Janine M. & Benjamin Van Rooij (2011) “Towards Customary Legal Empower-
ment: An Introduction,” in J. Unbink, ed., Customary Justice: Perspectives on Legal
Empowerment. Rome: IDLO.
Van der Waal, C. S. (2004) “Formal and Informal Dispute Resolution in the Limpopo
Province, South Africa,” 27 Anthropology Southern Africa 27 111–21.
Vanderlinden, Jacques (1989) “Return to Legal Pluralism: Twenty Years Later,” 21 J. of
Legal Pluralism 149–57.
Von Benda-Beckmann, Franz (2002) “Who’s Afraid of Legal Pluralism?,” 34 J. of Legal
Pluralism 37–82.
Von Benda-Beckmann, Franz, et al. (2009) “Rules of Law and Laws of Ruling: Law and
Governance Between Past and Future,” in Von Benda-Beckmann, et al., eds., Rules
of Law and Laws of Ruling: On the Governance of Law between past and Future. Farn-
ham: Ashgate.
Von Benda-Beckmann, Keebet (1981) “Forum Shopping and Shopping Forums: Dis-
pute Processing in a Minangkabau Village in West Sumatra,” 13 J. of Legal Pluralism
117–59.
——— (1996) “Noot 24: Rechtspluralisme,” in J. Griffiths, ed., De Sociale Werking Van
Recht: Een Kennismaking Met de Rechtssociologie en Rechtsantropologie. Nijmegen: Ars
Aequi Libri.
Von Trotha, Trutz (1996) “From Administrative to Civil Chieftaincy: Some Problems
and Prospects of African Chieftaincy,” 28 J. of Legal Pluralism 79–108.
Weilenmann, Markus (2005) “The Primary Justice Project of Malawi. An Assessment of
Selected Problem Fields from a Legal Pluralistic Viewpoint,” Commissioned by
GTZ.
West, Mark D. (1997) “Legal Rules and Social Norms in Japan’s Secret World of Sumo,”
26 The J. of Legal Studies 165–201.
Wicomb, Wilmien (2014) “The Chief is a Chief Through the People: Using Rule 7(1) to
Test the Authority of a Chief to Ltigate on Behalf of His People,” 49 South African
Crime Q. 57–64.
Wilson, Monica, Kaplan, T. Maki, & E. M. Walton (1952) Keiskammahoek Rural Survey Vol
3: Social Structure. Pietermaritzburg: Shuter and Shooter.
WLSA (2000) “In Search of Justice: Women and the Administration of Justice in
Malawi,” Blantyre: Dzuka Publishing.
Woodman, Gordon R. (1996) “Legal Pluralism and the Search for Justice,” 40 J. of Afri-
can Law 152–67.
Working Group on Arbitrary Detention (1993) “E/CN.4/1994/27, Decision 13/1993,” in
Question of the Human Rights of All Persons Subjected to Any Form of Detetion or Imprison-
ment (Malawi). Commission on Human Rights, 15th Session.
Janine Ubink is an adjunct professor at UCI Law School and the
President of the International Commission on Legal Pluralism. Her
research focuses on legal pluralism, customary law and its relation with
state law, traditional authorities, transitional justice, rule of law reforms,
gender, and land management, with a regional focus on Africa.
Sindiso Mnisi Weeks is an assistant professor in the School for Global
Inclusion and Social Development at the University of Massachusetts
Boston. Her areas of research include the relationship between customary
law and state law and policy in South Africa, women’s rights, the right
to culture, traditional authorities and courts, property, and succession.
858 Regulating Access to Justice in Rural South Africa and Malawi