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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:The Exogenous and the Indigenous in the Arguments for Reforming the Traditional Courts System in Malawi
Author:Jones, ChristinaISNI
Year:1997
Periodical:Afrika Spectrum
Volume:32
Issue:3
Pages:281-296
Language:English
Geographic term:Malawi
Subjects:legal reform
customary courts
Peoples of Africa (Ethnic Groups)
Law, Human Rights and Violence
Abstract:The internal ('indigenous') and external ('exogenous') influences that shaped Malawi's extremely flexible indigenous custom under British colonial rule also shaped the discussion which led to a reform of the Malawi traditional courts system after the regime of President Banda came to an end. The special features of the traditional courts system under Banda were control by the executive and prohibition of legal counsel. In instituting the traditional courts, President Banda, inheritor of the position of the Crown and thus representing a personalization and politization of the law, dissociated the lower courts from the supervision of the High Court, representing the immutability of the law, the 'immemorial custom' of the land, in order to obtain a more personalized and politicized natives' law. Banda then used the criminal jurisdiction of the traditional courts to get rid of political opposition. Post-Banda discussions on legal reform revolved around the old arguments on how to combine the 'indigenous' and the 'exogenous', now phrased in terms of human rights and international standards, rather than in terms of equity, conscience, morality, and civilization. However, the parameters set by the British and the imported schizophrenic tension in the English jurisprudence between the 'personal', i.e. political nature of the law, and the custom indigenous to the land, remained essentially unquestioned or undebated. Bibliogr., note, ref., sum. in German and French.
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