Today it is my turn to contribute to our Global Legal Collection Highlights series. The idea of this series, as is probably clear from its name, is to highlight our foreign law collection and keep In Custodia Legis readers abreast of new and/or interesting items that have been added. We have recently had posts that relate to particular legal topics by Laney (The Rule of Law in China) and George (Kuwait Business Laws), while Theresa (European Union Law), Peter (Laws of the Russian Federation), and Kelly (Indonesia Law) each highlighted recent resources more broadly for different jurisdictions.
For my first post as part of this series, I have chosen to take a look at our Malawi law collection. I decided to take a slightly expanded approach to this since I have not previously provided information on researching Malawi laws to our readers.
Located in the southeastern part of Africa, this former British colony (1891-1964) has an interesting history. One aspect of this history is that the country has gone through a few name changes. It was called the British Central Africa Protectorate from 1893 through 1907. From 1907 through 1964, its name was Nyasaland. Finally, it settled on Malawi at independence in 1964. So, of course, the laws published throughout the different phases in its history reflect the different names. Another interesting aspect of its history is that from 1953 through 1963, it was federated with Rhodesia (which included Northern Rhodesia (Zambia) and Southern Rhodesia (Zimbabwe)). This resulted in the establishment of a federal legislature and split the legislative jurisdiction between this body and the legislatures of the territories during that time. (Federation of Rhodesia and Nyasaland (Constitution) Order in Council, 1953.)
There are a few basic facts that a researcher not familiar with this jurisdiction may need to know as a starting point. Similar to most other African countries, Malawi can be characterized as a mixed legal system. Its sources of law include (p. 55-66) statutory law, English law (received English law and other English law), customary law, as well as religious law. It has a unitary system of government consisting of 28 administrative districts and a 193 member unicameral National Assembly. Although the 1994 Constitution called for an 80 member second chamber, a Senate, to provide representation for traditional and religious leaders, different regions of the country, and special interest groups (Constitution of Malawi, §§ 49 & 68), this plan was abolished through a constitutional amendment in 2001, with cost being cited as the impediment. (See Constitution (Amendment) Act, 2001, §§ 2 & 17.)
Malawi has a three tiered court system. The Supreme Court of Appeal, which is the highest court in the country, only has appellate jurisdiction on appeals from the High Court and other courts. (Constitution of Malawi, § 104.) The High Court of Malawi, consisting of three divisions (General Division, Commercial Division, and High Court Sitting on Constitutional Matters), has unlimited original jurisdiction to make determinations on civil, criminal and constitutional matters brought under any law in the country. (Id. § 108.) At the bottom of the judicial hierarchy sit what are known as the subordinate courts, which include Magistrate courts (of which there are five grades and whose powers vary depending on their grades) and the Industrial Relations Court, which adjudicates labor and employment disputes. (Id. § 110.)
For any researcher interested in the laws of Malawi, the following sources provide a great starting point:
- Guide to Law Online: Malawi (Law Library of Congress)
- Malawi: Legal System and Research Sources (GlobaLex)
- Structure of Courts (Malawi Judiciary)
The Law Library of Congress holds a fairly extensive collection of primary law sources on Malawi. These include:
- Official Gazettes going back to 1903.
- Annual Volume of Ordinances (which became Annual Volume of The Laws in 1949) going back to 1913.
- The African Law Reports: Malawi (which was renamed Malawi Law Reports in 1973-74) going back to 1923.
- In the High Court of Malawi, Principal Registry, Civil Cause (civil cases decided by the High Court) going back to 1990.
- Consolidated Laws of Malawi, a collection of key statutes that are updated periodically. The most recent consolidation is updated through 2010.
Our secondary sources collection on Malawi is pretty great too and, thanks to the hard work of the staff of the Library of Congress Overseas Office in Nairobi, Kenya, it is growing every day. The recent additions to the collection include:
- Rachel Sophie Sikwese, Labor Law in Malawi (2010).
- Marshal Chilenga, Civil Procedure in Malawi (2011).
- Lewis Chezan, Criminal Law in Malawi (2012).
- Fiona Atupele, Family and Succession Law in Malawi (2012).
- James Mistry, Introduction to Law Practice in Malawi: A Few Tips for the New Lawyer (2012).
- Accountable Government in Africa: Perspectives from Public Law and Political Studies (Danwood Chirwa & Lia Nijzink eds., 2012).
- Rachel Ellett, Pathways to Judicial Power in Transitional States: Perspectives from African Courts (2013).
No holding of laws of African jurisdictions would be complete without materials on customary laws. Here are some of the materials in our collection on Malawi’s customary laws:
- Franz Von, Legal Pluralism in Malawi: Historical Development 1858-1970 and Emerging Issues (2007).
- L.J. Chimango, Traditional Law in Malawi: Cases and Materials (1974).
- J.O. Ibik, The Law of Marriage and Divorce (1970).
- J.O. Ibik, The Law of Land, Succession, Movable Property, Agreements and Civil Wrongs (1971).
You can search for more materials on this jurisdiction by going to the Library of Congress online catalog. For research assistance, you can submit your questions through the Law Library’s Ask A Librarian system.