Safeguarding the Endangered Court Records of Malawi, 1891-1964 (EAP1040)

The pilot project seeks to locate and safeguard endangered traditional and district courts records from 1891 to 1964 across the country. The material has been chosen because of its value to the Nation of Malawi; these are very important records that describe how the court system in Malawi has worked over the years. In addition, the vulnerability of these very important records and the threat posed to their life span requires immediate intervention to rescue them from being destroyed completely and extint.

The physical condition of material is deteriorating with some of the records having worn out covers and some papers eaten by termites. Furthermore, this material is kept in an environment that is not conducive; the records are kept in storerooms where unserviceable old office furniture and vehicle tyres are kept. The storerooms have poor ventilation and dusty. The other reason why these records need to be safeguarded is because in most public offices, no officer is assigned to manage non-current records such as these. It must be stated at this point that these are huge volumes of records and it is estimated that this project will find around 3000 files containing very old records for possible relocation and digitisation in the major project.

This material is important to the nation for posterity as it bridges the information gap on the history of Malawi especially the area of justice and court system. Furthermore, the material is important for research to historians, authors and professionals in the field of law because of the doctrine of precedent. This means law students, lecturers and practitioners use past decided cases to make a determination on the fresh cases. This ensures consistence, certainty, predictability and confidence in the judicial system. This material will therefore provide an opportunity to access case and court records of the period in question which are not readily available in the public domain. As such, safeguarding this material will add value to the information source as most cases available in the National Archives of Malawi are most recent covering the period of post-independence in Malawi which is 1965. A snap survey at Zomba district court revealed that records from the traditional courts were still with the traditional courts and were yet to be transferred to the district court. However, the records that were created at the Zomba District court for the period in question were in a state of deterioration and required urgent intervention, the records which were identified included civil case files for natives, ordinances, civil registers, indexes of inquests and preliminary inquiries, monthly returns of criminal cases, appeals from native authorities, civil cases records concerning Europeans and Asians.



In a quest to study the source of the court records, it is imperative understand the historiography and circumstances that led to the establishment of the district and traditional judicial system in Malawi. The history of judicial system in Malawi dates back to the pre-colonial period, and during that time it was basically customary African law that was at play with chiefs presiding over the cases. The customary law comprised a flexible set of rules on conduct and social obligations which were accepted by the community. It was more concerned with the resolution of disputes than the punishment of crimes. When Malawi became a British protectorate, English law and legal procedures were introduced and given priority over customary Law. From the late 1890’s, the protectorate was divided into districts. District Commissioners were appointed with the primary responsibility of collecting taxes and they were also assigned some judicial duties. With the appointment of the District Commissioners the powers of existing chiefs were minimised in favour of direct rule by the District Commissioners. To this effect, chiefs had limited powers and they acted as local intermediaries between the protectorate administration and the local people. In 1933 the British administration instituted indirect rule which was a shift from the direct rule they had earlier on established. The arrangement of indirect rule made chiefs and their councils become Native Authorities and they had judicial powers although usually restricted to civil cases under customary law. The native courts established from 1933 provided a recognised forum in which customary law applied, mainly in such areas as marital disputes, inheritance and land disputes. The procedures in these courts were simple and expeditious, and the Native Courts Ordinance of 1933 prohibited legal representation of defendants in the interests of achieving substantial justice, without involving legal technicalities. Shortly before independence from the British colonial government, which took place in 1964, a Local Courts Ordinance in 1962 amended the 1933 Native Courts Legislation, and recognised several levels of

courts with varying powers to hear disputes based on customary law and some criminal cases. After independence, this ordinance was renamed the Traditional Courts Act of 1962. The local courts set up was no longer solely the courts of traditional chiefs, as had been the case under the 1933 legislation. This legislation provided guarantees of a fair trial, including the possibility of legal representation and the right to appeal to the High Court. Also in 1962, the judicial powers of the district commissioners were ended and they were replaced by legally trained magistrates.

It is therefore, imperative that a survey be conducted to establish the extent of availability of these records in the districts and traditional courts. During the survey an inventory of the records will be developed; wherever records are not kept in a proper storage at the traditional courts, arrangements will be made to transfer them to the districts courts where they will be properly organised and professionally kept. In addition, at every district court, time will be spared to sensitise court officers on the importance of the preserving the records and digitisation in general.