CHAPTER ONE

INTRODUCTION

I. BACKGROUND

Established under the constitution, the judiciary is entrusted with the responsibility of exercising

judicial functions.1 This enables all people who consider that their rights have been violated to be

able to enforce their rights before a tribunal. The parties to a tribunal normally resort to certain

forum to seek redress of grievances in respect of those rights. This is done in search for the right

to access to justice which is a constitutional right to every Malawian provided for under the

Malawian constitution.2

Most Malawians use state courts as tribunals where they can enforce their rights if aggrieved.

The courts have the responsibility of interpreting, protecting and enforcing the constitution and

all laws in accordance with the constitution in an impartial and independent manner with regard

only to relevant facts and the prescriptions of law.3

Proceedings in a criminal court may be instituted by various modes and one such mode is by

making a complaint before a magistrate.4 However, court records indicate that most Malawians

choose the mode of making a complaint at police as a mode of instituting a criminal matter. 5 This

can be attributed to the fact that most Malawians are not sure of how they will be assisted due to

lack of knowledge on the process.6 (are they aware of this mode?). This therefore subjects them

to the only known mode of making a complaint at police and in the process increase the chances

1
Chapter ix of the Malawian constitution
2
Section 41 of the Malawian constitution
3
Section 9 of the Malawian constitution
4
Section 83 of the criminal procedure and evidence code
5
Monthly criminal register at South Lunzu Magistrate Court accessed on 12/04/15
6
Oral interview with the Deputy Registrar of High Court Principle Registry
of having their justice delayed and in some instances even denied. It is against this background

that this topic was identified.

II. PROBLEM STATEMENT

Although section 83 of the Criminal Procedure and Evidence Code 7 provides for various modes

of instituting criminal matters at a criminal court, only one mode is utilized which is that of

making a complaint to police. The practice leads to floodgates at the police who end up failing to

serve all the people in time. 8 This is despite complainants having another alternative that can

serve them quicker and access justice in a quick mode than that of the police. This happens

because people are in doubt as to how their matter will be handled since the courts do not have

offices that can assist in the prosecution of those matters. The few who have tried to make their

complaints to the magistrate have either been referred to the police or simply advised to settle

their matters with the village chiefs. This is due to lack of knowledge on how to go about with

the matter on the part of the magistrate and the complainant as well. The result of all this is that

justice is denied to those who have been aggrieved. The lack of knowledge and non utilization of

the other modes of instituting criminal matters in court, are some of the hindrances to citizen to

have full access to justice in Malawi. There is therefore a need to explore whether the making of

a complaint before a magistrate as a mode of instituting criminal matters in court can enhance

access to justice and ensure the delivery of justice for all.

7
Section 83 of the criminal procedure and evidence code (chapter 8:01 of the laws of Malawi)
8
Ndirande police monthly return for the month of march 2015 accessed on 05/04/15
III. OBJECTIVES OF THE STUDY

IV. MAIN OBJECTIVE

This paper explores the right to access to justice by undertaking to analyze and search for ways

to overcome difficulties or obstacles that make access to justice inaccessible. It will also explore

the mode of instituting criminal matters that is most used by Malawians on whether it affords the

right to access to justice. This shall be achieved by examining the number of complainants that

were accorded the chance of having their matter dealt with and how long it took for it to be

completed. (methodology). The paper will also explore the other modes of instituting criminal

matters in court by looking at how they can enhance the right to access to justice and ensuring

the delivery of justice for all. This will be done by analyzing the available literature on matters

that have been dealt with using the other modes and how long it took for such matters to be

completed. (methodology).(there two issues here in main objective- chose one which will break

into specific obejectives)

V. SPECIFIC OBJECTIVES

Specifically, this study intends, firstly, to discuss the concept of access to justice and the

attributes of the dominant approach of instituting criminal matters namely; the making of a

complaint before a magistrate, the bringing of a person arrested without a warrant before a

magistrate and the public prosecutor or police officer signing and presenting a formal charge to a

magistrate. However, the main focus will be the mode of making a complaint before a magistrate

specifically targeting on how such complaints are made by victims or complainants. Secondly, it

intends to discuss the law and practice prevailing in court trials in Malawi in order to determine

the relationship between the making of a complaint before a magistrate and the right to access to
justice. Thirdly, it intends to examine whether the mode which is mostly used currently ensures

that access to justice is attained or justice is delivered to all as provided. Ensuring from that, it

aims at exploring whether the making of a complaint before a magistrate as a mode of instituting

criminal matters would enhance the right to access to justice if utilized by our courts in Malawi.

In that regard, it considers whether the current practice should be maintained in that the other

modes of instituting matters in a criminal court does not accord the litigants the right to fair trial.

(there are too much information and it is difficult to isolate issues here. If these specific are to

turn into question will you be able to formulate questions?).

VI. RESEARCH QUESTION

In line with the objectives of the study, this study will strive to answer the following key

questions: can the utilization of making a complaint before a magistrate as a mode of instituting

criminal matters in court enhance the right to access to justice in Malawi by ensuring the delivery

of justice to all? In answering the key question, three specific questions will be useful. Firstly,

what is the meaning of access to justice and how are complaints before a magistrate made?

Secondly, what is the law and practice on the relationship between making a complaint before a

magistrate and the right to access to justice? Thirdly, how can the making of a complaint before a

magistrate as a mode of instituting criminal matters in court enhance access to justice as

compared to the current practice? In this regard, it should be noted that the whole reason of this

study is to examine whether the current practice of instituting criminal matters in court leads to

the delivery of justice to all or that other modes like the making of a complaint before a

magistrate should be embraced to ensure that access to justice is accorded to all. ( is this part of

questions)
VII. HYPOTHESIS

The hypothesis of this study is that the current practice of instituting criminal matters in court

leads to some defects in the right to access to justice on the attainment of justice for all. It also

proceeds on the assumption that if the making of a complaint before a magistrate as a mode of

instituting a criminal matter can be embraced, it can enhance the right to access to justice and

ensure the delivery of justice for all in Malawian courts. ( two issues here which is your

hypothesis).

VIII. SCOPE OF THE STUDY

This study specifically focuses on the non-utilization of other modes of instituting criminal

matters and the current practice in courts. Due to illiteracy, the modes are not utilized whereby

denying the citizens the right to access to justice. ( do you have evidence that its because of

illiteracy? That’s why I earlier on asked you that “are these people aware or they not sure of the

process?

IX. LITERATURE REVIEW

The right to justice undertakes to analyze and to search for ways to overcome difficulties or

obstacles that make justice not accessible to many. Some obstacles that have been identified as

making justice and justice related rights inaccessible include; economic, logistical,

communication and geographical.9 In the Malawian context, Kanyongolo stated that it is not only

political influence that has led to the violation of the laws. 10 Some violations of laws are as a

result of lack of proper utilization of resources by government to fulfill its legal obligation. One

9
Garling,M. (2004) Enhancing access to human rights
10
Kanyongolo FE (2006) Malawi justice sector and the rule of law a review by afriMAP and open society initiative
for southern Africa
such violation is the constitutional requirement that the state should allow every person to have

access to any court of law or other tribunal with jurisdiction for the final settlement of legal

issues.11 This includes public trial before an impartial and independent court of law within a

reasonable time after having been charged.12 It therefore entails that access to justice is a

fundamental principle in every democratic society which entails that courts of law must be open

to all.13 The judicial system must be independent and impartial in all criminal trials to ensure

effective attainment of justice. Cappellettti, Johnson and Gordley are some of the scholars that

have tried to suggest solutions to these obstacles which include; increasing the effectiveness and

efficiency of the legal aid, encouraging pro bono services, strengthening informal justice

systems, allocating more resources to the judiciary, employing qualified interpreters in court

proceedings, public interest litigation and utilization of alternative dispute resolution

mechanisms.14

In Malawi, there are formal and informal tribunals that people resort to when their rights have

been violated. In all these tribunals, there are procedures of instituting a matter. In formal courts,

criminal matters are institute by, either making a complaint before a magistrate or bringing a

person arrested without warrant before a magistrate or through a public prosecutor or police

presenting a charge sheet to the magistrate. 15 However, court records indicate that the common

mode that most people use is that of a police officer presenting a charge sheet to the magistrate. 16

It is provided that whenever a magistrate inquiring or tying any matter may permit the

prosecution of such matter to be conducted by any person but that person should be a public
11
Section 41 (2) of the Malawian constitution
12
Section 42 (f) (1) of the Malawian constitution
13
Sanders RB (June 1999) access to justice paper presented at the access to justice conference, Washington state
USA
14
Cappelletti, M.(1981) towards equal justice: a comparative study of legal aid in modern societies
15
Section 83 of the criminal procedure and evidence code (chapter 8:01 of the laws of Malawi)
16
Monthly criminal register at South Lunzu Magistrate Court accessed on 12/04/15
prosecutor or the one authorized by the Director of Public Prosecution. 17 It is for this reason that

the majority of complainants resort to the mode of the police presenting the charge sheet to the

magistrate as a mode of instituting a criminal matter since it is cheap and relives the complainant

of the duty of processing the matter.18

As an illustration, a study on Malawi established that poor people generally have low levels of

education and this disables them from using the courts because of its complex procedures. 19

These procedures make it more difficult for the poor and the less enlightened to challenge their

wealthier and more enlightened opponents who more often than not have a tactical advantage

over them20. This study specifying lower courts would recommend that procedures should be

made less complex by making them simple and informal. It further recommends that the role of

the magistrates in cases where parties are not represented must be redefined. It was also

suggested that the courts must not encourage adversarial thinking at the expense of establishing

the truth but the court should take positive action to protect individual rights. This requires the

orientation of magistrates and the adoption of innovative methods of litigation by adopting both

the adversarial and inquisitorial styles of litigation. These styles of litigation will assist the

citizens who choose to institute their criminal matters by making a complaint before a

magistrate.

Some provisions in the Criminal Procedure and Evidence Code provide that if a magistrate is

inquiring into a matter that has been instituted by using section 83(1) (a) and (b), the magistrate

17
Section 82 (1) of the criminal procedure and evidence code (chapter 8:01 of the laws of Malawi)
18
Oral interview with Deputy registrar of the High Court Principle Registry
19
Scharf, W. and others (2002) access to justice for the poor of Malawi an appraisal of access to justice provided
for the poor of Malawi by the lower courts and the customary justice forums
20
Access to justice for the poor of malawi,( Wilfried scharf, chikosa banda, ricky rontsch, desmond Kaunda and
rosemary shapro) (an appraisal of access to justice provided to the poor of Malawi by lower subordinate courts
and customary justice forums)
can proceed to draw up a charge containing a statement of the offence which the accuses is

charged.21 It is provided that there are some situations that do not even require an investigation to

be conducted for a matter to be instituted; the magistrate in such situations can proceed to hear

the matter.22 Although the provision so provides, it is not provided as to how such matters can be

prosecuted. It is for this reason that the courts are supposed to be oriented in the adoption of not

only the adversarial approach of litigation but should rather include the inquisitorial styles of

litigation. This discussion will therefore take us through all these approaches in order to

appreciate how the same can enhance the delivery of justice in Malawi.

X. SIGNIFICANCE OF THE STUDY

The importance of the study is to bring to light the injustice that may be perpetrated in the

Malawi’s justice system as a result of the non-utilization of modes of instituting criminal matters

in our courts. Further the study will explore whether the maintaining of the current approach of

instituting criminal matters in our courts can help address the injustice and at the same time

ensure that litigants are accorded the right to access to justice. The making of a complaint before

a magistrate is considered as a solution unlike the current mode that is mostly used. It is also

presumed that the study will help determine whether if the magistrate’s role can be redefined in

that they have to play an active role in court, can help in the enhancement of the delivery of

justice in Malawi.23 The study will also help bring to the understanding of the modes of

instituting criminal matters and how they can enhance access to justice by eradicating the

barriers that limit access to justice. The realization of the aims of this study will make the

21
Section 83 of the criminal procedure and evidence code
22
Section 83 (6) of the criminal procedure and evidence code
23
Koyana D.S. (1980) customary law in a changing society ( Juta & co. Cape Town)135
enjoyment of the rights recognized in our Malawian constitution and other international human

rights a reality.24

XI. METHODOLOGY

The study was done through desk research which involved a critical review of the primary

sources such as the applicable laws governing procedures in courts. It also reviewed secondary

sources that included books, cases, journals and any literature on the subject which helped to

define the access to justice, comparing the adversarial and inquisitorial approach of litigation.

The study was also done through field research by conducting interviews of judicial officers and

all law enforcement agencies. Local people were also interviewed in order to establish their

understanding on the topic.

The data that was corrected from the research was then analyzed and only relevant information

was used on the study.

LIMITATIONS

The major challenge that this paper faced was time. The researcher had limited time in that he

was also required to attend classes and complying with other assignments that he was tasked to

submit in time. The other thing was that some officials that were to be interviewed did not allow

the researcher to conduct a face to face interview whereby resorting to a questionnaire which did

not address all the matters that arose from the responses.

LAYOUT OF THE PAPER

The paper contains five chapters;

24
Universal declaration of human rights, international covenant on economic, social and cultural rights,
international covenant on civil and political rights
Chapter one will introduce the subject of the paper and it will include, background to the study,

the problem statement, laying down the research question, the objectives of the study, the scope

of the study, literature review, significance of the study and the methodology employed in the

research. Chapter two offers the conceptual understanding of the central terms in this study.

Chapter three discusses the law and practice on modes of instituting criminal matters specifically

targeting the making of a complaint before a magistrate and the relationship with the right to

access to justice. Chapter four will analyze whether the utilization of making a complaint before

a magistrate as a mode of instituting criminal matters in court can enhance the right to access to

justice in Malawi. Chapter five will present the study’s overall conclusions and

recommendations

.
 CHAPTER TWO

CONSEPTUAL FRAMEWORK

INTRODUCTION

To achieve a fair appreciation of access to justice in respect to making a complaint as a mode of

instituting criminal matters in court, it is important to first of all describe what justice is, what

access to justice means as provided in our Malawian constitution and then discuss the making of

a complaint before a magistrate as a mode of instituting criminal matters. This will also provide a

foundation for understanding how the making of a complaint before a magistrate has a bearing to

access to justice.

JUSTICE

Justice as a notion of law has different meanings to different people and societies all over the

world. There is no universal meaning of the term justice since what is justice to one society

might not be justice to the other. It all depends on social background, culture, national interest,

education, religious beliefs, pear pressure that plays a vital role in defining what justice is. 25

Justice may also be known from its attributes and where there is no justice; tyranny, dictatorship,

wickedness, inequality, discrimination, insecurity of life and property becomes the older of the

day.26 Nevertheless, justice, according to Raymond Wacks means the maximization of

happiness.27 Jeremy Bentham also argued that since in our lives we strive to be happy and avoid

pain, so too should society be structured to realize the objective. 28 However, John Rawls in his

25
Maliro vs Republic (1997) 14 MLR 193 (SCA)
26
Nakanga Chiumia vs Southern Bottlers LTD (1990) 13 MLR 114 (HC)
27
Raymond Wacks 2006, philosophy of law (introduction oxford university press inc, newyork
28
Jeremy Bentham, an introduction to the principles of morality and legislation (chapter 1, 2, 4.10)
theory of justice looked at justice as fairness. 29 Until now, the concept of fairness is still vague

for what is fair to one may not be fair to the other. 30 Aristotle claimed that justice means treating

equals equally and unequal unequally, in proportion to their inequality.31

However, justice Mtegha said

‘’The concept of equal protection of laws is a positive concept. It postulates for the application of

the same law alike and without discrimination to all persons similarly situated. It denotes

equality of treatment in equal circumstances. It implies that, among equals, the law should be

equal and equally administered, that the likes should be treated alike without distinction of race,

religion wealth social status or political influence.’’32

It therefore falls that the term justice does not have a single definition and thus many factors

influence its meaning. Black’s law dictionary defines justice as the proper administration of

law.33Whereas Lord Denning defined justice as the constant and perpetual disposition on legal
34
matters or disputes to give every man his dues. Where there is justice, national unity,

patriotism, public order, security and good government will be fostered. 35 However in this paper,

justice will mean the proper administration of the law.

29
John Rowls a theory of justice Rev: Ed. Harvard University.
30
Sir Guenter Treitel, the law of contract: 11 edition sweet and Maxwell @ 8-9
31
John Rowls a theory of justice Rev: Ed. Harvard University.
32
Malawi congress party and others vs Attorney General 2MLR 181 (SCA)
33
Black’s law dictionary: 8th Ed. Brian A, garner ed, Thomson west @ 881.
34
Lord denning, what next in the law: 4th Ed, butterworths, London 1982 @ p.13
35
Lord denning, what next in the law: 4th Ed, butterworths, London 1982 @ p.13
ACCESS TO JUSTICE

Access means ‘a means of approaching or nearing passage’ 36 and access to justice means the

ability of people to seek and obtain a remedy in conformity with human rights standards through

formal or informal institutions of justice 37 However, access to justice does not only mean access

to institutions but also means access to fair laws, procedures, implementable, affordable and

appropriate remedies in terms of values that are in conformity to constitutional directives and

values. Scholars have categorized access to justice in two stages; as a goal and as a process. 38

As a goal, it means the actual achievement of justice through the various avenues and services

which are at the disposal of the citizens. In this context, access to justice means access to

institutions for settlement of disputes of citizens and the actual remedy itself.39

As a process, it involves activities aimed at enhancing the citizen’s ability to seek appropriate

legal solutions to their needs. This refers to the institutions and services of justice at the disposal

of citizens. It also includes availability of lawyers, institutions, good laws and other dispute

settlement that are responsive to the needs of the poor and disadvantaged persons. 40 In this paper,

access to justice will mean access to institutions, fair laws and procedures.

COURTS

Established in Section 103 of the Malawian Constitution, Courts have jurisdiction on all cases

which are judicial in nature and shall have authority to decide whether an issue is within its

36
American heritage dictionary of the English language
37
Commission on legal empowerment of the poor (2005) concept paper
38
Nchunu, justice sama “the role of lawyers in providing legal aid in criminal justice in Cameroon”, conference on
legal aid in criminal justice 22-24 nov.2004, Lilongwe Malawi
39
Nchunu, justice sama “the role of lawyers in providing legal aid in criminal justice in Cameroon”, conference on
legal aid in criminal justice 22-24 nov.2004, Lilongwe Malawi
40
Nchunu, justice sama “the role of lawyers in providing legal aid in criminal justice in Cameroon”, conference on
legal aid in criminal justice 22-24 nov.2004, Lilongwe Malawi
competence.41 The law and practice governing court trials, generally follow the common law

system of justice.42 Malawi had two separate court structures in existence that were classified as

the High Court and the Traditional Court systems.43 The Traditional Courts were integrated into

the Magistrate Court in 1995 and thus seize to exist in Malawi. 44 What currently remain are the

High Court system which is composed of the Supreme Court of Appeal, the High Court

(Principle Division), High Court (Commercial Division), the graded Magistrates, and the

Industrial Relations Court. This means that Courts in Malawi have mandate to deal with all

matters brought before it which are judicial in nature. It also means that all citizens are to have

access to the courts for their final settlement of their grievances. It therefore comes that the

access to justice works interchangeably with access to Courts and the institution of criminal

natters in these courts play a vital role in ensuring that the right is enforced. The making of a

complaint before a magistrate is one way of accessing the courts in Malawi.45

Although Courts have the mandate to deal with any matter brought before it which is judicial in

nature, there are procedures that are to be followed for one to access these courts. In criminal

matters, not all courts mentioned can deal with matters of this nature. It is only the supreme court

of appeal, the high court principle division and the magistrate courts that are mandated to handle

criminal matters.46 It is further provided that only the high court principle division and the

magistrate courts are allowed to deal with matters that have been brought before it direct from

citizens.47

41
Section 103(2) of the Malawian constitution
42
National Democratic Alliance vs. Electoral Commission and Others, a constitutional case number 3 of 2004
43
Machika M.R.E (1983) the Malawi legal system: an introduction to law. Law department, Chancellor college,
zomba.3
44
Mungomo vs mungomo, matrimonial cause number 6 of 1996
45
Section 83(1)(a) of the Criminal Procedure and Evidence Code
46
Sections 104(2),108(1) and 110(1) of the Malawian constitution
47
Section 140(1) and 110(1) of the Malawian constitution
The practice and procedure for criminal matters to be instituted in these courts is regulated by the

courts act and the criminal procedure and evidence code. 48 In this discussion, the term courts

shall mean the high court principle division and the magistrate court. ( incomplete, where is

formal conclusion of this chapter.- its too short)

48
Chapter 3.02 and chapter 8.01 of the laws of Malawi
CHAPTER 3

FINDINGS OF THE PROJECT’S FIELD RESEARCH

INTRODUCTION

This chapter highlights the research findings of the project from the major areas of research

focus as provided under the methodology in chapter one of the project. It begins by providing for

the field research findings conducted at South Lunzu Magistrate Court, findings from Ndirande

Police Station and findings from complainants at Ndirande Police Station. This will assist in the

next chapter to identify its relationship of making a complaint before a Magistrate as a mode of

instituting criminal matters in Court with the right to access to justice. A two tier approach will

be used: firstly the field research findings will be presented and secondly, the library research

will be presented.

UNDERSTANDING THE MODES OF INSTITUTING CRIMINAL MATTERS

The institution of a criminal matter in Court can be said to be the first step that citizens take in

the search for the right to justice. It therefore comes that any person who feels that his or her

rights have been violated, will seek to have the matter brought before a tribunal to have the final

settlement and enforcement of those rights. In Malawi, Courts and other tribunals are mandated

to settle such matters. In this regard, Courts should be understood to be the formal tribunals

which are mandated to settle criminal matters thus the High Court and the Magistrate Court.

In our Malawian setup, the institution of criminal matters in court is regulated by the courts act

and the criminal procedure and evidence code. 49 In these statutes, there are three modes of

49
Chapter 3.02 and Chapter 8.01 of the Laws of Malawi
instituting criminal matters.50 The first mode is where a person makes a complaint before a

magistrate.51 The mode requires that when a Magistrate has received a complaint, he/she shall at

once examine the complaint upon oath and that the substance of the examination shall be

reduced to writing and both the magistrate and complainant shall sign for it. It further provides

that if the magistrate doubts the truth of the complaint made before him/her, may cause an

inquiry into the complaint or direct the police to do so. 52 The second mode is the bringing of a

person arrested without warrant before a magistrate. 53 The mode requires that if a magistrate

considers that there are sufficient grounds to proceed with the complaint made under sub-section

(1)(a) and (b), (where is the main section) the magistrate shall forthwith draw up a charge

containing a statement of the offence with which the accused is charged. 54 The last mode is that

of the police or public prosecutor signing and presenting a charge sheet before a magistrate.55

MODE OF CONDUCTING RESEARCH

The researcher with the aim of collecting information on the topic conducted a research at South

Lunzu Magistrate Court by interviewing the First, Second and Third graded Magistrates at the

court, he further conducted oral interviews with Ndirande Police Prosecutors and lastly

conducted oral interviews with complainants at Ndirande Police Station. Relevant books,

articles, decided cases and statutes were also used in gathering information on the topic.

50
Section 83 of the Criminal Procedure and Evidence Code
51
Section 83(1)(a) of the Criminal Procedure and Evidence Code
52
Section 83(4) of the criminal procedure and evidence code
53
Section 83 (1)(b) of the criminal procedure and evidence code
54
Section 83(6) of the criminal procedure and evidence code
55
Section 83 (1)(c) of the criminal procedure and evidence code
RESEARCH FINDINGS AT SOUTH LUNZU MAGISTRATE COURT

The institution of a criminal matter in court is regulated by the Criminal Procedure and Evidence

Code and the Courts Act.56 A person who intends to have his/her matter brought before court can

either make a complaint before a magistrate, bring a person arrested without a warrant before a

magistrate or make a complaint at police who will subsequently draw a signed charge sheet and

present it to a magistrate.57 This is one way of ensuring that the court is accessible and open to all

as provided in the Republican Constitution.58

Court records accessed during the research, indicates that during the months of January and

March 2015, the court registered 137 cases. 59 However, of the 137 cases that were registered at

the court, it was observed that 121 cases were brought to court by police prosecutors presenting a

signed charge sheet before a magistrate. 16 cases were brought to court by making a complaint

before a magistrate and none was reported by bringing a person arrested without warrant before a

magistrate.60 This clearly indicates that most people use the mode of making a complaint at

police as a mode of instituting criminal matters in court. 61 The research revealed that most

people are not aware of the availability of the making a complaint before a magistrate as a mode

of instituting criminal matters in court. 62 Although 121 cases were instituted by a police

prosecutor presenting a signed charge sheet before a magistrate, court records show that out of

the 121 cases, only 47 cases were completed during this period representing a 39% effectiveness

56
Chapter 8.01 and chapter 3.02 of the laws of Malawi
57
Oral interview conducted with the first grate magistrate on 9th April 2015 at South Lunzu Magistrate Court in
Blantyre
58
Section 41(2) of the republican constitution
59
Criminal case register accessed on 9th April 2015 at South Lunzu Magistrate Court in Blantyre
60
Criminal case register accessed on 9th April 2015 at South Lunzu Magistrate Court in Blantyre
61
The researchers own assessment
62
Oral interview conducted with the first grade magistrate on 9th April 2015 at South Lunzu Magistrate Court in
Blantyre
of the mode.63 On the other hand, it was noted that of the 16 cases that were instituted by making

a complaint before a magistrate, 12 cases were completed during the period representing a 75%

effectiveness of the mode.64 It can therefore be said that the making of a complaint before a

magistrate provides a better opportunity to the public to access justice within a reasonable time.

From the research interviews conducted at South Lunzu Magistrate Court, the author was of the

view that the institution of a matter in court by using the mode of a police prosecutor presenting

a signed charge sheet before a magistrate is in itself inadequate to accord the public to have

access to courts for the final settlement of their grievances as provided. This is the case as the

mode has shown that it is not effective enough to serve the public interest as required. 65 It

therefore comes that if the making of a complaint before a magistrate as a mode of instituting a

matter in court can be utilized, it can provide a better opportunity of having matters brought

before court to be dealt with within a reasonable time.66

RESEARCH FINDINGS AT NDIRANDE POLICE STATION

Since findings from the court records indicate that most people use the police as a mode of

instituting criminal matters in court, it therefore comes that police prosecutors play a vital role in

the enforcement of the right to access to justice through the bringing of a matter before a court

which has the mandate to provide a remedy to all the grievances of an individual who feels that

his right have been violated.67 Records at Ndirande Police Prosecutions Office indicate that

during the period of January to March 2015, the office registered a total number of 213 cases that
63
Criminal case register accessed on 9th April 2015 at South Lunzu Magistrate Court in Blantyre
64
Criminal case register accessed on 9th April 2015 at South Lunzu Magistrate Court in Blantyre
65
Statistics of cases completed within the period of January to march of 2015 at south Lunzu Magistrate Court in
Blantyre.
66
Statistics of cases completed during the month of January to march of 2015 at South Lunzu Magistrate Court in
Blantyre.
67
Criminal case register accessed on 9th April 2015 at South Lunzu Magistrate Court in Blantyre
were to be taken to court.68 However, only 121 cases were taken to court which represents a 59%

effectiveness of the mode.69 This means that 41% of the matters that were not taken to court, the

complainants in these cases never had the chance of accessing the courts in time hence they were

not able to access justice on their matter. Research findings attributed this to the lack of

resources like transport and stationary by the police to prepare cases for court. 70 It was further

discovered that the station has 5 prosecutors to handle cases which provides a workload on them

and in the end fail to process the files for court in time.71

Although the mode of a police presenting a signed charge sheet before a magistrate is the most

used by the public, it is clear from the findings that it is not in itself sufficient to serve the public

to access justice in courts.72 It therefore comes that the making of a complaint before a magistrate

can supplement in enhancing the provision of access to courts by the public and in the end

enhance the right to access to justice in Malawi.

RESEARCH FINDINGS ON THE ROLE OF THE MAGISTRATE ON CASES INSTITUTED

BY MAKING A COMPLAINT BEFORE A MAGISTRATE AT SOUTH LUNZU

MAGISTRATE COURT

When a matter has been brought before a magistrate and it has been discovered after examining

the complaint under oath that there is a cause for action, the research found out that the

magistrate receiving the complaint then records a statement from the complainant. 73 It was

further discovered that the magistrate then secures the attendance of the accused before court

68
Ndirande police prosecutions 1st quarterly return for 2015 accessed on 13th April 2015
69
Ndirande police prosecutions 1st quarterly return for 2015 accessed on 13th April 2015
70
Oral interview with the station prosecutions officer of Ndirande police on 13th April 2015
71
Oral interview with the station prosecutions officer of Ndirande police on 13th April 2015
72
The researchers own emphasis
73
Oral interview with the second grade magistrate at south lunzu magistrate court which was conducted on the 9 th
April 2015 in Blantyre
either by summoning the accused or by issuing an arrest warrant. 74 Having recorded the

statement, the magistrate who received the complaint then transfers the matter to another

magistrate with jurisdiction on the matter to proceed to hear the matter. 75 This is done in order to

prevent the court from being biased in its proceedings. 76 Research findings also revealed that

during the trial, the magistrate plays an active role in the proceedings. 77 The role of the

magistrate in matters instituted by the making of a complaint before a magistrate is that of

inquisitorial since the magistrate plays an active role in the proceedings. Whereas in matters

instituted by the prosecutor presenting a signed charge sheet before a magistrate, the magistrate

plays a passive role and the approach adopted is adversarial where the parties play an active

role78

RESEARCH FINDINGS ON THE RELATIONSHIP BETWEEN MAKING OF A

COMPLAINT BEFORE A MAGISTRATE AND ACCESS TO JUSTICE

Courts were established in order to interpret, enforce and protect the constitution and all laws in

accordance with the constitution in an impartial and independent manner with regard only to

relevant facts and the prescription of law. 79 It therefore comes that it is only if matters are

brought to it that it will have mandate to deal with it. 80 For criminal matters to be brought to the

attention of the court, it is only when section 83 of the criminal procedure and evidence code has

74
Section 84 (1) of the Criminal Procedure and Evidence Code
75
Oral interview with the Second Grade Magistrate at South Lunzu Magistrate Court conducted on the 9th April
2015 in Blantyre
76
Oral interview with the Second Grade Magistrate at South Lunzu Magistrate Court conducted on the 9th April
2015 in Blantyre
77
Oral interview with the second grade magistrate at south lunzu magistrate court conducted on the 9th April 2015
in Blantyre
78
Oral interview with the first grade magistrate at south lunzu magistrate court conducted on the 9th April 2015 in
Blantyre
79
Section 9 of the republican constitution
80
Oral interview with the deputy registrar of the high court principle registry conducted on 10th April 2015 at
Blantyre registry
been complied with.81 Since the courts are mandated to handle cases which are judicial in nature,

they are also empowered to provide remedies to those aggrieved. 82 It is therefore inevitable that a

person, who is seeking a remedy for a criminal grievance, has to seek such remedies from

courts.83 Research findings have indicated that the majority of Malawians use the mode of the

police prosecutor presenting a signed charge sheet before a magistrate which according to the

discussion does not effectively accord the public the right to access the justice. 84 It has also

emerged that the making of a complaint before a magistrate if utilized can provide the public the

opportunity to have their matter brought before court in a reasonable time and accord them the

right to have remedies on their grievances in time. 85 It therefore means that one cannot talk of

accessing criminal justice without talking of accessing courts. Hence it can be said that access to

courts work interchangeably with access to justice.86

CONCLUSSION

This chapter has highlighted the findings of the research that was conducted both at high court

principle registry, South Lunzu Magistrate Court and Ndirande Police Station. It has shown that

the institution of a matter in court plays a vital role in the pursuit of the right to access to justice

in Malawi. Findings have indicated that due to lack of resources at the police, cases are not

instituted at courts in time leading to the delay in justice and in some instances even denial.

81
Chapter 8.01 of the laws of Malawi
82
Oral interview with the deputy registrar of the high court principle registry conducted on the 10th April 2015 at
Blantyre registry
83
Oral interview with the deputy registrar of the high court principle registry conducted on the 10th April 2015 at
Blantyre registry
84
Research findings from South Lunzu Magistrate Court and Ndirande Police Station respectively conducted during
the month of April 2015
85
Research findings from South Lunzu Magistrate Court and Ndirande Police Station respectively conducted during
the month of April 2015
86
The researchers own emphasis
It has also been shown that the making of a complaint before a magistrate as a mode of

instituting criminal matters in court, if utilized can enhance the right to access to justice in

Malawi.

The next chapter therefore proceeds to make an analysis of the above findings with the necessary

applicable laws in Malawi.

CHAPTER FOUR

ANALYSIS OF THE RESEARCH FNGINGS

INTRODUCTION

This chapter aims at providing a reasoned analysis of the research findings that have been

highlighted in chapter three above. Having conducted the research at the High Court Principle

Registry, South Lunzu magistrate court, and Ndirande police station, there emerges the need to

analyze the findings with what the law demands.

ANALYSIS OF THE RESEARCH FINDINGS AT SOUTH LUNZU MAGISTRATE COURT

As already discussed in the preceding chapters, one way through which the state combats to the

barriers to access to justice in Malawi is the making of a complaint before a magistrate as a mode

of instituting a criminal matter in court. This chapter under this section establishes that a person

whose rights have been violated can enforce such right by having access to courts for a final

enforcement of such right as provided for under the 1994 republican constitution. This section

aims at analyzing the citizen’s right to access to justice against the making of a complaint before

a Magistrate at South Lunzu. ( how? Not well elaborate)

ACCESS TO JUSTICE

The constitution of Malawi under section4187 which provides that;

“(1) every person shall have a right to recognition as a person before the law.

(2) Every person shall have the right of access to any court of law or any other tribunal with

jurisdiction for final settlement of legal issues.

87
1994 constitution of Malawi
(3) Every person shall have the right to an effective remedy by a court of law or tribunal for acts

violating the rights and freedoms granted to him or her by this Constitution or any other law’’.

This entails that a person whose rights have been violated should in whatever means be able to

have his/her matter brought before a tribunal for a final settlement of such rights. Since in this

paper such tribunals have been defined to mean formal courts, it comes that such person should

have access to the courts for the enforcement of his/her rights. Section 42 (2) (f) (1) 88 of the

constitution provides that;

“As an accused person, to a fair trial, which shall include; the right to public trial before an

independent and impartial court of law within a reasonable time after having been charged’’.

This therefore means that although the matter has been brought before court, it has to be dealt

with within a reasonable time. It also means the complainant will have his/her matter dealt with

within reasonable time.

88
The 1994 constitution of Malawi
THE RELATIONSHIP BETWEEN THE MAKING OF A COMPLAINT BEFORE A

MAGISTRATE AND ACCESS TO JUSTICE

The judiciary was established in order to have the responsibility of interpreting, protecting and

enforcing the constitution and all laws in accordance with this constitution in an independent and

impartial manner with regard only to legally relevant facts and the prescriptions of law. 89 As such

it is a constitutional right that a person should have access to courts for settlement of rights that

have been violated. Courts are essential is ensuring that people whose rights have been violated

can have a remedy which only the courts are mandated to enforce. 90 Without access to courts,

these people are venerable to unfair treatment, unlawful actions and are left without a remedy for

their rights that have been violated by those perceived as the strongest in the society. Having

access to courts will therefore empower the citizens by enabling them to demand and exercise

their rights. Courts therefore empower the citizens to enforce their right to access to justice

through the provision of a remedy for their rights that have been violated.

Courts are mandated to handle matters that are judicial in nature. But it is only if such matters

have been brought before the court that it will have to deal with them in the manner prescribed

by law. Section 8391 of the criminal procedure and evidence code provides for modes of

instituting criminal matters in court. Findings from the research has shown that although the

there are three modes of instituting a criminal matter in court, only one mode is being utilized

which is that of a police officer presenting a signed charge sheet before a magistrate. Statistics at

South Lunzu Magistrate Court indicate that out of the 137 cases brought before court between

January and March, 121 cases were brought by police prosecutors presenting a signed charge

89
Section 9 of the Malawian constitution
90
Section 9 of the Malawian Constitution
91
Chapter 8.01 of the Laws of Malawi
sheet before a magistrate. It has also been found that although this mode is utilized, statistics

indicate that only 44% of the matters brought using the mode are completed leaving 56% without

a remedy to their grievances. This has been attributed to limited resources and corruption by

police prosecutors who are assigned to handle matters on behalf of the complainants. Cases need

sufficient resources so that they can be dealt with speed, since justice delayed is justice denied,

the late institution of a matter before a court by police prosecutors can effectively cause a denial

of justice. Article 6 paragraph 1 of the European Convention for the protection of Human Rights

and Fundamental Freedoms recognizes the ‘reasonable time’ a requirement for both criminal and

civil proceedings. (is Malawi party to that convention?)

Making a complaint before a magistrate as a mode of instituting a criminal matter in court

provides that a person who feels that his rights have been violated can go direct to the magistrate

to make a complaint.92 Under oath, he can have his complaint heard and if grounds are

established for further action, the magistrate can summon the accused and proceed to have the

matter heard.93 Research findings at South Lunzu magistrate court show that of the 16 complaints

instituted using this mode between January and March, 11 cases were completed representing a

68.75% effectiveness of the mode. This leaves 31.25% of cases uncompleted. This shows that if

the mode can be utilized, it can grant the citizens the right to access justice within a reasonable

time as compared to that of the police presenting a signed charge sheet before a magistrate as

indicated from the findings.

92
Section 83(1)(a) of the criminal procedure and evidence code
93
Section 83(4) of the criminal procedure and evidence code
ANALYSING THE RESEARCH FINDINGS ON THE ROLE OF THE MAGISTRATE AT

SOUTH LUNZU MAGISTRATE COURT IN RELATION TO ACCESS TO JUSTICE

As already discussed in the preceding chapters, the court is at the centre of the administration of

justice as it is where all judicial processes take place. This paper under this section establishes

that the role the court plays in protecting the citizen’s right to access to justice is not enough. 94

This is because the court system in Malawi is adversarial where the sitting magistrate does not

take an active part in that it does not side with either side but remains neutral. In General

Simwaka v Attorney General,95 the supreme court of appeal had the following observation;

‘’Again we take the view that the question of notice of intention to sue the government did not

arise in this case as it was raised by the respondent. Material issues necessary for the

determination of a case must be raised by the parties themselves’’.

This means that the court leaves the parties to convince it so that it can decide the case on the

favor of the party that argues the best.

However in matters that have been instituted by making a complaint before a magistrate,

research findings indicate that the court after receiving such complaint and having been satisfied

of the truth of the complaint, plays an active role in soliciting information from the parties by

using the inquisitorial approach of trial.96 Section 246 of the Criminal Procedure and Evidence

Code97 also provides that the court can try the matter summarily in trying matters that have been

instituted using section 83(1) (2) and (4). The approach enables the court to inquire into the

94
As provided above in the findings chapter conducted at south lunzu magistrate court through oral interviews
with magistrates
95
2004 MLR 349
96
R v Doreen Chiyenda, criminal case number 41 of 2015 decided at South Lunzu Magistrate Court.
97
Chapter 8.01 of the Laws of Malawi
matter and soliced more information from the parties so that it can come to the proper decision

on the matter before it.

ANALYSING THE RESEARCH FINDINGS ON THE TRIAL PROCEDURE AT SOUTH

LUNZUN MAGISTRATE COURT AND ACCESS TO JUSTICE

The main source of law governing the criminal proceedings in Malawi is the CP&EC. 98 Under

section 83(6) of the Criminal Procedure and Evidence Code 99, provides that if the magistrate

considers that there are sufficient grounds for proceeding with a complaint made under

subsection (a) or (b), the magistrate shall forthwith draw a charge containing a statement of the

offence with which the accused is charged. This means that the court can proceed to try a case

that has been brought before it using section 83(1) (a) and (b) immediately the attendance of the

accused is secured at the court.

However, access to justice does not only mean access to institutions but also means access to fair

laws, procedures, implementable, affordable and appropriate remedies in terms of values that are

in conformity to constitutional directives and values. 100 It therefore means that if access to justice

is to be achieved, there should be fair laws, procedures, and implementable affordable and

appropriate remedies. It also means both the accused and complainant should be accorded the

rights as provided by the constitution.101

Research findings at South Lunzu Magistrate Court indicate that once the magistrate receives a

complaint and a reasonable ground has been established that there is a cause for action, a charge

98
Chapter 8.01 of the Laws of Malawi
99
Chapter 8.01 of the Laws of Malawi
100
Access to justice for the poor of Malawi,( Wilfried scharf, chikosa banda, ricky rontsch, desmond Kaunda and
rosemary shapro) (an appraisal of access to justice provided to the poor of Malawi by lower subordinate courts
and customary justice forums)
101
My own emphasis
is drawn and the attendance of the accused is secured. 102 In order for the court to level the field

for both the accused and the complainant during the trial, the matter is then transferred to another

magistrate who proceeds to hear the matter. 103 This indicates that the court in ensuring that the

right to access to justice is accorded to both the accused and the complainant, is exercising its

duty by not being bias.

CONCLUSSION

This chapter has established that the institution of a matter in court is of fundamental importance

if the right to access to justice is to be attained in Malawi. This is despite the lack of knowledge

on the part of the public and lack of resources by the police. To answer the question as to how

the making of a complaint before a magistrate as a mode of instituting criminal matters in court

can enhance the right to access to justice in Malawi, it has been shown through the above

analysis that the same can effectively suffice if the public can be civic educated on the existence

of the mode of instituting their matter before court. It has also been shown that if the magistrate

role in the trial can be redefined by adopting the inquisitorial approach, the administration of

justice by courts will effectively suffice. It can therefore be said that the utilization of the making

of a complaint before a magistrate as a mode of instituting criminal matters in courts can enhance

the right to access to justice in Malawi.

The next chapter will finally make the overall conclusions and recommendations that the project

makes.

(chapter four not well articulated to convince a lecturer)

102
Section 83(6) of the Criminal Procedure and Evidence Code
103
R v Doreen Chiyenda criminal case number 41 of 2015 decided at South Lunzu Magistrate Court.