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In Malawi a system of traditional courts (known as native courts or local courts in colonial times) has been used for much of the twentieth century to mediate civil disputes and to prosecute crimes, although for much of the colonial period, their criminal jurisdiction was limited. From 1970, regional traditional courts were created and given jurisdiction over virtually all criminal trials involving Africans of Malawian descent, and any appeals were directed to a National Traditional Court of Appeal rather than the Malawi High Court and from there to the Supreme Court of Appeal, as had been the case with the local courts before 1970. The traditional courts were supposed to operate in accordance with African law and custom, although they applied an authoritarian, restrictive and punitive version of customary law, in line with the views of Hastings Banda, the first President of Malawi. During the 1970s and 1980s, the traditional courts gained a reputation for being used to prosecute Banda's political opponents and being corrupt. After the restoration of multi-party politics, the operation of the regional traditional courts and the National Traditional Court of Appeal was suspended in 1993. Many of the former lower-level traditional courts became magistrates' courts, able to apply customary law, but subject to appeal to the High Court. The Malawi Constitution of 1994 recognised customary law as an integral part of the legal system and provided for Traditional Courts with limited jurisdiction over civil and minor criminal cases, but no legislation to set up such courts was introduced until 2011. In February 2011, the Malawi Parliament approved legislation re-introducing local traditional courts handling most civil cases and some minor criminal cases, as a means of making justice more accessible to rural Malawians. ==History of customary law== In pre-colonial times, customary African law comprised a flexible set of rules on conduct and social obligations which was accepted by the community. Customary African law has been typified by as more concerned with the resolution of disputes than the punishment of crimes. Many systems of customary African law have little recognition of crimes, in the sense of a specific offence committed against, and prosecuted by, a society as opposed to torts or civil wrongs to be pursued by the individual affected as a plaintiff. Some offences, for example patricide, incest or witchcraft were however so serious as to regarded as crimes against the community involving the death of those guilty.〔T O Elias, (1972). The Nature of African Customary Law, Manchester University Press, pp. 110-12, 116 . ISBN 978-0-7190-0221-2.〕 Although it has sometimes been claimed that, because of its flexibility and basis in custom, it was not really law, experts in African legal systems such as Eugene Cotran have demonstrated it was. Cotran also showed that, despite some informality, assemblies of people meeting to administer customary law are clearly courts. However, in the colonial period, English law and legal procedures were introduced and given priority over customary Law, which tended to be labelled “native law”, “local law” or “traditional law”. Europeans also sought to codify these laws, which as a result, became increasingly rigid.〔E Cotran, (1966). The Place and Future of Customary Law in East Africa in East African Law Today, London, British Institute of International and Comparative Law, pp 72, 82-3.〕 From 1902, English law was established as the normally-recognised legal code in the Nyasaland Protectorate, and a High Court was established on the English model. Customary law was allowed (but not mandatory) in cases involving Africans, if that "native" law or custom was not repugnant to English legal principles. It was generally regarded as repugnant in three areas; witchcraft, the use of poison ordeals and existence of slavery. The prohibition of customary law in these areas weakened the authority of traditional leaders who administered that law.〔Z. Kadzimira (1971), Constitutional Changes in Malawi, 1891–1965, Zomba, University of Malawi History Conference 1967, pp. 82.〕 From the late 19th century, the protectorate was divided into districts, with a Collector of Revenue (later called a District Commissioner in charge of each, responsible for collecting taxes and also with judicial duties that were not finally revoked until 1962.〔J McCraken, (2012). A History of Malawi, 1859–1966, Woodbridge, James Currey pp. 70, 222-5. ISBN 978-1-84701-050-6.〕 At first, the powers of existing chiefs were minimised in favour of direct rule by the Collectors. Hereditary chiefs and appointed headmen with very limited powers acted as local intermediaries between the protectorate administration and the local people. Indirect rule was instituted in 1933; the chiefs and their councils became Native Authorities with limited judicial powers, usually restricted to civil cases under customary law and little money to enforce them. However, the native courts established from 1933 on provided a recognised forum in which customary law applied, mainly in such areas as marital disputes, inheritance and disputes about the right to use certain land.〔R. I. Rotberg, (1965). The Rise of Nationalism in Central Africa: The Making of Malawi and Zambia, 1873–1964, Cambridge (Mass), Harvard University Press, pp. 48–50.〕 The procedures in these courts were meant to be simple and expeditious, and the Native Courts Ordinance 1933 prohibited legal representation of defendants in the interests of achieving substantial justice, without involving legal technicalities.〔S Roberts, 1963. A Note on Recent Legal Developments in Nyasaland, Journal of African Law, Vol. 7, No. 3, p. 179.〕 It was argued by Martin Chanock that, as a reaction to the rapid social and economic changes that took place in the late pre-colonial and early colonial periods, older men in many African communities sought to impose their authoritarian and restrictive interpretation of customary law, which they used to control younger men and particularly women. It was this view of traditional law as a punitive instrument rather than a means of mediating disputes that was presented to the Europeans codifying these laws. It was also the view of traditional law in Malawi that inspired both the then-Prime Minister, Banda, and the Minister of Justice Orton Chirwa to criticise such principles of English based law as the presumption of innocence, the need to establish guilt beyond reasonable doubt and the requirement for corroborating evidence. By 1969, Aleke Banda, the Minister of Finance, openly attacked the use of defence lawyers and the safeguards or restrictions imposed by the English-law Rules of evidence. Dr Banda specifically linked traditional law to punishment, and claimed that lack of evidence was not proof of innocence.〔M Chanock (1976) Neo Traditionalism and the Customary Law in Malawi, pp. 80-4. http://www.jlp.bham.ac.uk/volumes/16/chanock-art.pdf〕 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Traditional courts in Malawi」の詳細全文を読む スポンサード リンク
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