A History of Malawi's Criminal Justice System: From Pre-Colonial to Democratic Periods
| Jurisdiction | South Africa |
| Author | Bande, L.C. |
| Published date | 17 March 2021 |
| DOI | https://doi.org/10.47348/FUND/v26/i2a2 |
| Pages | 288-336 |
| Citation | (2020) 26(2) Fundamina 288 |
| Date | 17 March 2021 |
288
https://doi.org/10.47348/FUND/v26/i2a2
A HISTORY OF MALAWI’S
CRIMINAL JUSTICE SYSTEM: FROM
PRE-COLONIAL TO DEMOCRATIC
PERIODS
Lewis Chezan Bande*
ABSTRACT
This contribution traces the historical development of the criminal
justice system in Malawi, from the pre-colonial period, through the
colonial and independence periods, to the contemporary democratic
period. It highlights the major political hallmarks of each historical
period and their impact on the development of the criminal justice
system. The contribution shows that all aspects of the current criminal
justice system – substantive criminal law, procedural law, criminal-
law enforcement agencies, courts and correctional services – are
products of political and constitutional processes and events of the
past century. Their origins are directly traceable to the imposition of
British protectorate rule on Nyasaland in the late nineteenth century.
The development of the Malawian criminal justice system since then
has been heavily inuenced by the tension and conict of colonialism,
the brutality of one-party dictatorship and the country’s quest for a
constitutional order that is based on liberal principles of democracy,
rule of law, transparency and accountability, respect for human
* Senior Lecturer in Law, University of Malawi. E-mail: lewcbande@yahoo.com
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rights, limited government and equality before the law. To properly
understand Malawi’s current criminal justice system, one has to know
and appreciate its historical origins and development.
Keywords: Criminal justice; Nyasaland; colonialism; Malawian indepen-
dence; Malawi; democracy; 1994 Malawian Constitution
1 Introduction
To properly understand and appreciate Malawi’s current criminal
justice system, one has to appreciate its historical origins and
development. The existing criminal justice system in all its aspects –
substantive criminal law, procedural law, criminal-law enforcement
agencies, courts and the correctional system – did not come into
being instantaneously, but is a product of certain social, economic
and political processes and events of the past one hundred and
twenty-nine years. Its origins are directly traceable to the imposition
of British protectorate rule on Malawi in 1891. Since then, the system
has been heavily inuenced by the tension and conict of colonialism;
the brutality of the infamous one-party dictatorship; Malawi’s quest
for a constitutional order based on such principles as trust, rule of
law, transparency and accountability, dignity and worth of each
human being; respect for human rights; separation of powers; and
equality before the law under the current constitutional dispensation.
As is the case with most other countries, the political and legal
history of Malawi coincided with and affected each other. This is
not surprising, since laws and legal institutions are products of,
among other things, political processes. Hence, most discussions of
the history of Malawian law follow the major political epochs of
the country, namely the pre-colonial period (pre-1891), the colonial
period (1891 to 1964), the independence period (1964 to 1994) and
the democratic period (1994 to date). The discussion below follows
the same pattern.
2 The pre-colonial period (pre-1891)
The ancestors of all the indigenous tribes that now inhabit Malawi
migrated from elsewhere. They did not nd the land empty.
Indeed, they encountered pygmy tribes, which they variously called
the “Abatwa”, the “Akafula”, the “Mwandionerakuti” and the
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“Akaombwe”, to name by a few.1 The prevailing view is that these
names were due to the diminutive stature of the members of the
pygmy tribes,2 though others doubt this assertion.3 The Abatwa
were gatherers and hunters.4
Historians do not agree on the fate of these indigenous tribes.
Some scholars claim that they were driven out by the new arrivals,
particularly by the Malavi people.5 Others claim that they were
driven south into the Kalahari desert.6 A third point of view asserts
that they were assimilated into the new arrivals. Still another view
holds that the Abatwa tribes lived alongside another group of
people, the baKatanga (also known as the baPule and baLenda).7
Unlike the Abatwa tribes, the baKatanga are said to have been of
the same stature of the arriving Bantu tribes, but that they too were
pushed out of the territory by the Malavi people, and that their
remnants live in the present-day Zambia.8 The last view, which
has not been accorded much prominence in academic writing, is
that the Abatwa co-existed with, and were eventually assimilated
into, the Bantu tribes.9 What is certain, however, is that the Abatwa
disappeared as an independent race.
The rst Bantu tribes to arrive were the Chewa, who arrived in
groups (or clans). Two such prominent clans were the Banda and
the Phiri, who migrated from the Congo basin around the fteenth
1 See, for example, Pachai 1973.
2 The argument that these people were short, is echoed by scholars, such as
ibid; Rangeley 1963: 36–42.
3 For example, Nurse 1967: 17–19 has argued that it is “probable” that the name
“Akafula” might have been given to them because of either the expectoratory
sound of their language, or because of their habit of digging for water. He
has, therefore, disputed what he called the “ungrammatical contention that
the name was connected in any way with their size”.
4 See, for example, Wendland & Hachibamba 2007.
5 Rangeley 1963: 39–40 gives detailed accounts of battles between the Malavi
people and the Abatwa tribes, and describes how the former eventually
prevailed by driving the Abatwa from the territory of Malawi into what is
now Zambia.
6 For example, Kambalu 2008: 7.
7 See, for example, Rangeley 1963: 40; Rangeley 1966: 62.
8 Rangeley 1963: 41.
9 This has been argued by several academics, including by McFarren 1986: 23;
Linden 1974: 1; and Phiri 2007: 23. Zubieta 2014 observed that the Bantu
tribes appropriated certain symbols from the Abatwa and assimilated these
into their own cultural practices, which suggests that the Abatwa and the
arriving Bantu tribes had co-existed for some time.
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