Report - Chiefs Act WIP - lawcom.gov.mw

GAZETTE EXTRAORDINARYThe Malawi Gazette Supplement, dated 31st August, 2015, containing Report of the Law Commission (No. 1D)

Law commission report no. 28

constitution of maLawi

report of tHe Law commission on tHe reView oftHe cHiefs act

the report of the Law commission on the review of the chiefs act is herebypublished and shall be laid in parliament pursuant to section 135(d) of theconstitution.

Dated this 24th day of august, 2015.

samueL Batson temBenuMinister of Justice and

fiLe no.Lc/01/62 Constitutional Affairs

REPORT OF THE LAW COMMISSION ON THE REVIEW OFTHE CHIEFS ACT (Cap. 22:03)

to: HonouraBLe samueL Batson temBenu, minister of Justice anDconstitutionaL affairs

this is the report on the review of the chiefs act by the special Lawcommission on the review of the chiefs act appointed under section 133 of theconstitution.

we, the members of the commission, submit this report pursuant to section135 (d) of the constitution and commend the report and its recommendations tothe Government, parliament and the people of malawi.

memBers

HonouraBLe Justice anacLet c. cHipeta — Chairperson, Justice of appeal,malawi supreme court of appeal

mr. stuart naison meDson LiGomeka — Deputy Chairpersonprincipal secretary,ministry of Local Government and rural Development

mrs. GertruDe Lynn Hiwa, sc — Law CommissionerLaw commission

mr. ricHarD santHe — Administrator Generalministry of Justice andconstitutional affairs

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mr. Lawrence D. makonokaya — Director of Chiefsadministration ministry of Local Government and rural Development

mr. enock cHiBwana — Legal Practitionermalawi Law society

mr. roDrick mate-auma — District Commissionerrumphi District council

mr. sympatHy makwanGwaLa — Senior Chief Makwangwalantcheu District

ms. aiDa DeLeza — Senior Chief Chikumbumulanje District

Late mr. reDson J. nyonDo — Senior Chief Mwaulambyachitipa District

Late ms. Diana e. a. ntoDwa — retired civil servant

Dated: 5th December, 2014

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Changes in the composition of the special Law CommissionDuring the course of the programme, the commission lost two

commissioners, commissioners Diana ntodwa and senior chief mwabulambyawho passed away on 1st June, 2013 and 27th november, 2013 respectively. maytheir souls rest in peace.Programme Officers

the lead programme officers for this programme were mrs. eddah edayichavula, LLB with Honours (malawi) and mr chizaso eric nyirongo, LLB withHonours (malawi), LLm (oslo).Changes in the team of Programme Officers

Dr. Janet Laura Banda, as chief Law reform officer, was part of the team atthe start of the review process. she was appointed solicitor General and secretaryfor Justice in the ministry of Justice and constitutional affairs in December,2012.

mr. mike chinoko participated in the initial stages of the review programmebut left to pursue further studies in south africa in 2011. mr. tony Lemucha, whowas also a programme officer, left the Law commission to pursue careeropportunities in private practice before the conclusion of the review.Acknowledgements

the Law commission is grateful to the european union for providingfunding for this programme through the Democratic Governance programme andDeutsche Gesellschaft für internationale zusammenarbeit (Giz) also immenselysupported the secretariat during the course of this programme. Government of therepublic of malawi also offered invaluable support and resources to thecommission leading to the successful completion of this programme.

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TABLE OF CONTENTSpaGe

changes in the composition of the special Law commission . . . . 4programme officers . . . . . . . . . . . . . . 4changes in the team of programme officers . . . . . . . . 4acknowledgements . . . . . . . . . . . . . . 4INTRODUCTION . . . . . . . . . . . . . . 7terms of reference . . . . . . . . . . . . . . 7work methodology . . . . . . . . . . . . . . 8structure of the report . . . . . . . . . . . . . . 8Background and overview of the chiefs act (cap. 22:03) . . . . 9a. institution of traditional Leadership. . . . . . . . . . 9B. Historical Background . . . . . . . . . . . 10c. overview of the chiefs act. . . . . . . . . . . . 13D. proposed Legislation . . . . . . . . . . . . 15SPECIFIC FINDINGS AND RECOMMENDATIONS . . . . 161.0 scope of tHe act . . . . . . . . . . . . 162.0 Definition anD creation of ViLLaGe . . . . . . 16

2.1 Definition of Village . . . . . . . . . . . . 162.2 creation of Village . . . . . . . . . . . . 172.3 creation of Group of Villages . . . . . . . . . . 20

3.0 BounDaries of cHieftaincies . . . . . . 214.0 appointment of cHiefs . . . . . . . . . . 23

4.1 appointing authority . . . . . . . . . . . . 234.2 regency . . . . . . . . . . . . . . 314.3 installation . . . . . . . . . . . . 324.4 eligibility criteria for appointment . . . . . . 354.5 elevation of traditional Leaders. . . . . . . . . . 37

5.0 powers, Duties anD functions of cHiefs . . . . 405.1 Jurisdiction of traditional leaders in cities, municipalities or

township . . . . . . . . . . . . . . 456.0 remoVaL from office . . . . . . . . 477.0 emoLuments of traDitionaL LeaDers . . . . 50

7.1 other Benefits for traditional Leaders . . . . . . 537.1.1 pension/ex-gratia payment . . . . . . . . 537.1.2 Death Benefits . . . . . . . . . . . . 547.1.3 Loans, advances and other Benefits . . . . . . 55

8.0 staff of traDitionaL LeaDers . . . . . . 578.1 positions of tax clerk and messenger . . . . . . 578.2 functions of clerks and messengers . . . . . . 57

9.0 cHiefs anD DiscipLine . . . . . . . . 5910.0 offences . . . . . . . . . . . . . . 64

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11.0 penaLties for acts of misconDuct 6612.0 wHetHer or not a criminaL conViction sHouLD

eXpire . . . . . . . . . . . . . . . . 7113.0 institutionaL framework for traDitionaL LeaDers 72

13.1 introduction of a council for chiefs . . . . . . . . 7213.2 name . . . . . . . . . . . . . . 7413.3 functions and operations . . . . . . . . . . 7413.4 composition . . . . . . . . . . . . . . 7513.5 tenure . . . . . . . . . . . . . . 7713.6 meeting . . . . . . . . . . . . . . 7713.7 committees of the council . . . . . . . . 78

14.0 status of BLock LeaDers . . . . . . . . 8315.0 scHeDuLe to tHe cHiefs act . . . . . . . . 8416.0 suBsiDiary LeGisLation: cHiefs (staffs)

(emoLuments, terms anD conDitions ofserVice) ruLes . . . . . . . . . . . . 84

17.0 enGenDerinG traDitionaL LeaDersHip. . . . . . 8518.0 otHer Laws affectinG traDitionaL LeaDers . . 89

18.1 constitution of malawi . . . . . . . . . . 8918.2 Local Government act . . . . . . . . . . 9018.3 Land act . . . . . . . . . . . . . . 9019.0 consequential provisions . . . . . . . . . . 91

anneXesappenDiX i: traDitionaL LeaDers BiLL, 20.... . . . . 96appenDiX ii: List of persons consuLteD . . . . . . 138

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INTRODUCTIONin July, 2007, the Law commission received submissions requesting the

urgent review of the chiefs act (cap. 22:03) (in this report, hereafter, referred toas ‘the act’). one submission originated from the ministry responsible for LocalGovernment and rural Development and the other from malawi safety, securityand access to Justice (massaJ). Both submissions requested the Lawcommission to review the role of traditional leaders in local and national life;accountability structures relating to chieftaincy; appointment and removal ofchiefs; succession of chiefs; and gender related issues in the act.

following the submissions, the special Law commission on the review ofthe chiefs act (in this report, hereafter referred to as ‘the commission’) wasempanelled under section 133 of the constitution to carry out the review. thecommission commenced work in earnest in april, 2012.

the general mandate of the commission was to review the act with a viewto developing a new legislative framework to regulate chieftaincy that promotesdemocratic principles in accordance with the constitution, legislation and policyand international practice.TERMS OF REFERENCE

the commission developed its own terms of reference to guide its work asfollows—

(a) to carry out a general review of the act with a view to developing anew legislative framework to regulate chieftaincy in a manner that willpromote democratic principles of transparency and accountability inaccordance with the constitution, existing legislation, policy andinternational practice;

(b) to examine existing statutes that have a bearing on chieftaincy suchas the Local Government act (cap. 22:01), the Local courts act (act no. 9of 2010) and the Land act (cap. 57:01);

(c) to consider work already done by the Law commission with specificreference to the reports of the special Law commission on the review ofLand related Laws; review of the traditional courts act; and the specialLaw commission on the Development of the Gender equality statute;

(d) to carry out research into developments and social trends that have abearing on the proper functioning of chieftaincy;

(e) to invite and consider submissions from the general public relating tothe institutional framework, powers and functions of chiefs and generally, theproper functioning of the institution of chieftaincy;

(f) to consult stakeholders in order to elicit their views on the findingsand recommendations of the commission;

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(g) to ascertain reforms that have taken place within the southernafrican Development community (saDc) region and other common lawjurisdictions relating to chieftaincy with a view to learning fromneighbouring or similar jurisdictions;

(h) to recommend any other matters relating to chieftaincy; and(i) to produce a report containing findings and recommendations of the

commission, and if so recommended, accompanied with proposedlegislation based on the recommendations, for submission to the minister ofJustice and constitutional affairs.

Work Methodologyupon receiving submissions, the commission adopted the following

methodology in reviewing the act—(a) invited submissions from the public through notices in the local

papers and in the Gazette;(b) met in plenary for three days once a month for a total period of 15

months. During these meetings, the commission scrutinized the act, sectionby section. the commission also examined several comparable statutes fromother common law jurisdictions within and outside the southern africanregion;

(c) undertook study visits to namibia and zambia where commissionershad occasion to learn, first hand, about the structural, institutional andprocedural issues regarding the institution of chieftaincy;

(d) held three regional workshops to consult stakeholders on theirviews on the area under review, and later on the findings andrecommendations made by the commission;

(e) held a national consultative workshop to subject the commission’sfinal findings and recommendations to scrutiny;

(f) convened a meeting of the commission to review the deliberations ofthe workshops and to incorporate the recommendations made at the nationalconsultative workshop; and

(g) produced this report.Structure of the Report

the report commences with a brief historical background and overview ofthe act. this is followed by a synopsis of the proposed legislation. the reportpresents findings and recommendations of the commission based on issues thatwere identified as being in need of review. all matters recommended forenactment have been indicated in bold.

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further, in the narrative part of the report, the commission has not assignedpart numbers and section numbers to the new provisions being recommendedsince they will bear their proper part numbers and section numbers in theproposed legislation. However, subsections have been assigned numbers toindicate the structure and full content of the recommended provisions.

the second part of this report contains appendices on the proposedlegislation as an appendix per section 7(1) (g) of the Law commission act; andthe list of persons and institutions consulted.Background and Overview of the Chiefs Act (Cap. 22:03)A. Institution of Traditional Leadership

traditional leadership is an important and enduring feature of most sub-saharan africa (ssa) countries. traditional leaders bear various titles such as‘guardians of tradition’, ‘custodians of cultural values and practices’, and, assuch, are considered an important channel through which social and culturalchange can be realized. traditional leaders are also actors and embodiments ofcustomary decision-making institutions and a socio-political expression of localsocietal organizations which is based on lineage and considered key to continuityof societies.1 consequently, in most countries in ssa, traditional leaders aregiven administrative judicial functions presiding over customary civil matters. insome countries, this function is formalized by incorporating them in primaryjustice court systems, while other countries simply allow these leaders to performthese functions informally over a distinct territorial unit such as a village,occupied by a largely homogenous people sharing more or less commonlanguage, culture, social values and aspirations.

the relevance of traditional leadership in contemporary african society is,however, heavily debated, particularly, in the wake of democratization. there aretwo schools of thought on the matter. the first view is that traditional leadershipis incompatible with democracy, accountability and transparency on the basis thattraditional leadership is inherently undemocratic to the extent that it erodes fromthe individual, the right to choose one’s leader. this is because traditionalleadership is more or less “a caste in which only birth members can postulate tothe role of a traditional leader”.2 traditional leadership is therefore condemned asan instrument of oppression devoid of progress, particularly in areas of politicalorganization, women’s rights, social mobility and economic rights. this school ofthought calls for the abolition of traditional leadership if democracy is to beattained.

the other view argues for co-existence of some kind, recognizing the factthat traditional leadership is part of the historical heritage of local communities.

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1 see Bloom, a., ‘’ambiguous political space: chiefs, Law and the poor in rural mozambique’’, in webstern., and eng- pedersen, L., (eds.), in the name of the poor: contesting political space for poverty reduction(new york and London: zed Books, 2002).

2 ribot, J., “africa Decentralization: Local actors, powers and accountability” unrisD programme onDemocracy, Governance and Human rights, paper number 8, stockholm.

this school argues that traditional leadership institutions are not static but rather,like all aspects of culture, custom and society, adapt to changing values andaspirations of communities. traditional leadership is therefore perceived as aninstitution that is constantly reshaped to be relevant to the contemporary needs ofsociety.3

the developments in malawi since the transition to democracy in may, 1994suggest that the institution of traditional leadership is here to stay. traditionalleaders are not only ex-officio members of district councils but also dominate thelower level structures of these councils such as area Development committees(aDcs) and Village Development committees (VDcs). further, the 2002national Land policy advocates for the inclusion of traditional leadership in Landcommittees to administer and manage customary land and in Land tribunals tobe empowered to engage in settlement of land disputes, a function previouslycarried out by lay persons in the defunct traditional courts. the report of the Lawcommission on the review of Land related Laws4 has embraced the nationalLand policy proposals and incorporates the customary Land Bill to this effect. inaddition, the introduction of remuneration and the subsequent increase in suchremuneration for traditional leaders (justified as an appreciation of the role oftraditional leaders in various facets of national life) has further entrenched theendurance of the traditional leadership. Given these developments, it is notsurprising that there has been a call to rethink the role of traditional leadership ina democratic dispensation and to consider how the institution of traditionalleadership could be made transparent, accountable and gender sensitive.

B. Historical Backgroundin malawi, the institution of chieftaincy has undergone several changes in

terminology and function. the 1912 District administration (native) ordinancelaid the foundation for the recognition of traditional leaders. the ordinancecreated a hierarchy of chiefs in the style of principal Village Headmen and VillageHeadmen and gave them the responsibility to maintain law and order; encouragetax paying; provide sanitation; control cattle movement and oversee generalwelfare, all in a bid to achieve indirect rule.5 amendments to the ordinance in1924 and 1929 extended powers of the principal Headmen to adjudicating civilcases at customary law, collecting taxes, issuing licences and controllingafforestation respectively.6 these additional functions ensured expansiveresponsibilities, including the performance of judicial functions, by traditionalleaders. further, the amendments introduced the statutory recognition of thechief’s court.

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3see owusu, m., “Domesticating Democracy: culture, civil society and constitutionalism in africa” societyof comparative study of society and History Vol. 1 pp120-152.

4Gazetted Law commission report no. 15.5Diana cammack, edge kanyongolo and tam o’neil, town chiefs in malawi, working paper no.3, June,

2009.6ibid.

the 1933 native authority ordinance revised the hierarchy of chiefs.principal Headmen now became native authorities; the lower cadres of chiefswere divided into sub-native authorities, Group Village Headmen and VillageHeadmen. the native authorities were entrusted with powers of LocalGovernment including making rules and orders to regulate their own districts,adjudicate cases and allocate village gardens.7 parallel to this ordinance was thenative courts ordinance, enacted in the same year, that established “nativecourts” where the state administered customary law through provincialcommissioners and chiefs acting as advisors or assessors. the ordinance markedthe beginning of a hybrid justice system where the non-state customary systemwas merged with the state legal system.8 this weakened the powers of thechieftaincy by removing judicial powers of native authorities since theirinvolvement was limited to being advisors and assessors whereas previously theywere arbiters. the native courts ordinance of 1947 and subsequently the Localcourts ordinance of 1962 replicated this arrangement.

the native authority ordinance of 1933 was repealed by the nativeauthority ordinance of 1946. the 1946 ordinance was in turn repealed by thenative authority ordinance of 1955. under the 1955 ordinance, a nativeauthority was defined as “any chief or other african or any african council orgroup of africans, declared to be or established as a native authority under thisordinance for the area concerned.” section 4 of the ordinance empowered aGovernor to declare such native authority a corporation sole in terms of a chiefor body corporate where it was an african council or a group of africans. theordinance required native authorities “to assist the Government to maintain law,order and good government among the africans” residing in their area;9 toprevent crime among africans;10 and to issue orders regulating various aspects oflife of africans.11 consequently, the ordinance defined the role of chiefs inDistrict administration as an instrument of indirect rule by conferring on them,legislative and administrative functions at the local level under the closesupervision of District commissioners and provincial commissioners. thisarrangement portrayed chiefs as “glorified messengers and clerks” of the colonialGovernment.12

the powers of chiefs were further weakened by the enactment of the 1953Local Government (District councils) ordinance. this ordinance transferredmost of the powers conferred on the chiefs by previous statutes to councils andsubordinated chiefs to these councils and made them ex officio members. the

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7Vail and white, 1989.8note that there are perceptions that this justice system was introduced to enable the colonial Government toexert control over all spheres of life of africans, see penal reform international, access to Justice in sub-sahara africa: the role of traditional and informal system, January 2001.

9section 5.10section 7.11section 9.12see the remarks of Honourable msonthi, the then minister of transport and communications in contributing

to the debate of the chiefs Bill, malawi Hansard, proceedings of parliament, 5th session, 1967-68, p171.

1961 Local Government ordinance (amendment) act entrenched this positionsuch that, by the time malawi gained independence, chiefly powers weresubstantially reduced and limited to traditional functions such as allocation ofgardens, preservation of peace and settlement of disputes in non-state customaryfora.

in terms of constitutional development since 1966, the republic of malawi(constitution) act of 1966 provided for the recognition and preservation of theinstitution of chieftaincy under section 6 as follows—

“The institution of the chieftaincy shall be recognized and preserved in theRepublic, so that the Chiefs may make the fullest contribution to the welfare anddevelopment of the country in their traditional fields.”

the role of chiefs in the welfare and development of malawi in the postindependence period has largely been concerned with two key areas. theircontinued involvement in customary land allocations and management;13 anddispensing justice in customary justice fora called pabwalo and through theirinvolvement in the state’s justice system as advisors and assessors.14

the 1966 constitution was replaced in 1994. the 1994 constitution does nothave a specific provision recognizing the institution of chieftaincy but prior to2001, provided for the inclusion of chiefs as members of the senate under therepealed sections 68 to 70.15

there have been calls to re-introduce the senate.16 it has been argued that theexistence of the senate may “assist chiefs to recognize and appreciate their roleas traditional leaders,” a role that is oftentimes confused. it has also been arguedthat a senate will allow “for participation of traditional authorities in matters ofnational interest.”17 the Law commission in its report on the review of theconstitution has recommended the re-introduction of provisions on the senate inthe constitution.18 further, it provides for recognition and preservation of theinstitution of chieftaincy so that chiefs may make the fullest contribution to thewelfare and development of the country in their traditional field under the sectionon principles of national policy.19


13see section 26 of the 1965 Land act which empowers the minister to administer and control all customaryland for the use and common benefit of the people of malawi.

14for example, the Local courts act which superseded the Local courts ordinance of 1962 on attainment ofindependence and later amended in 1969 to be titled traditional courts act conferred on chiefs the role ofadvisors or assessors in traditional courts.

15repealed by act no. 1 of 2001.16see Law commission , constitutional review programme consultation paper, february 2006.17report of the Law commission on the review of the constitution, malawi Government Gazette supplement

september 2007, pp 41-42.18ibid. membership of the senate should include “ten senators elected by a caucus of chiefs who shall

themselves be chiefs”.19report of the special Law commission on the review of the constitution, p. 152

C. Overview of the Chiefs Actthe act was enacted on 29th December, 1967 and has been amended a

number of times. it provides for the recognition, appointment, functions and areasof jurisdiction of paramount chiefs, senior chiefs, chiefs, sub-chiefs,councillors, Group Village Headmen and Village Headmen; and for certainaspects of District administration. the act is divided into six parts. the ministerhas promulgated rules on emoluments and conditions of service of tax clerks andchief’s messengers termed the chiefs (staff) (emoluments, terms andconditions of service) rules.

under the act, the president has the power to declare or alter the boundariesof sections and sub-sections for chiefs by order. He may even create new officesof paramount chief, senior chief or chief and assign to them, areas ofjurisdiction which may result in amendment of the schedule. However, issuesrelating to boundaries of any section and sub-section are dealt with by theDistrict commissioner who issues a certificate indicating the situation ofboundaries of such areas. the certificate issued is conclusive evidence of thesituation of boundaries. the act prohibits a paramount chief, a senior chief, achief or sub-chief from exercising jurisdiction within the city, municipality ortownship.

the act mandates the president to appoint as paramount chief, senior chiefor chief, a person as he shall recognize as being entitled to such office. However,the president can only exercise such power, if that person is entitled to hold officeunder customary law; has the support of the majority of the people in the area ofjurisdiction; and where the appointment relates to the office of senior chief, theperson must be a chief and must be recognized by all chiefs in the district as beingentitled to such appointment under customary law. further, the president mayappoint any person to be a sub-chief at the request of a chief and suchappointment is supposed to specify boundaries of the area of jurisdiction.

the president is required to specify the functions of the office of paramountchief in the appointing document. in general, the functions of a chief include:preservation of public peace; carrying out the traditional functions of the office inaccordance with customary law and subject to the provisions of the constitutionor any written law, natural justice or morality; assisting in the collection of tax andgeneral administration of the district and to carry out functions that the Districtcommissioner may require; and also to carry out and enforce any lawfuldirections of the District commissioner. the exercise of these functions is subjectto functions conferred by the president on a paramount chief under section 6. asub-chief performs delegated functions of a chief to whom he is subordinate andsuch performance is subject to the general or special directions of such chief.

the act empowers a chief to appoint Group Village Headmen and VillageHeadmen he may consider necessary to assist him in carrying out his functions.their function is to assist the chief or sub-chief by whom they were appointedin the performance of that chief or sub-chief’s functions and to bring to their


notice, any matter concerning their respective villages and which is related totheir functions. remuneration payable to these office bearers is approved by theDistrict commissioner of the District in which the village or group of villages issituated.

the act governs the appointment of persons to act in the offices ofparamount chief, senior chief, chief or sub-chief where the president considersthat the holder of such an office is unable to fulfil the functions of his officesatisfactorily due to age, infirmity or any other reason. the substantive holder ofthe office is prohibited from carrying out any functions of the office during suchperiod.

the act empowers the president to remove any person from the office ofparamount chief, senior chief, chief and sub-chief on condition that an inquiryshall be carried out and if, on the basis of that inquiry, he is satisfied that theperson has ceased to be entitled under customary law to hold such office; has lostthe confidence of the majority of the people residing in the area; or such removalis necessary in the interest of peace, order and good governance. the presidentmay institute an inquiry before the removal of any person from such office and hemay suspend that person from the performance of functions of his office.

the president may appoint persons to inquire into any question relating to theappointment or removal of any person from the office of paramount chief, seniorchief, chief or sub-chief. the persons so appointed must report and makerecommendations to the president. where the president removes a person fromoffice and is of the opinion that no other person is suitable for appointment to thatoffice, he may appoint a chief’s council to perform the functions of that office.

the council shall consist of a chairman and three or more members. thepresident also has the mandate to terminate the appointment of any chairman ormember of council and appoint another person in place of or in addition to theexisting members of the council. the chief’s council, so appointed, shallperform all functions of the chief until another person is appointed to hold suchoffice.

in accordance with customary law, a paramount chief, senior chief, chiefand sub-chief may appoint advisers to assist him in the exercise of his functions.the advisers are counsellors and are known as nduna and they serve in anhonorary capacity and are not entitled to any remuneration.

the act provides for the exclusion of former paramount chiefs, seniorchiefs or sub-chiefs from any area, by notice, signed by the president, forpurposes of maintenance of public order. the notice must be served personally onthe person concerned and where he cannot be found, it must be published in theGazette. any contravention of such a notice attracts a penalty of six monthsimprisonment.

emoluments and pensions for chiefs are provided for under the act. every


paramount chief, senior chief, chief, sub-chief and chairman of a chief’scouncil is entitled to receive remuneration determined by the president, fromtime to time in order to enable them maintain their status and to carry out thefunctions of their offices in a fit and proper manner. the president may also, inhis discretion, pay pension to any paramount chief, senior chief, chief or sub-chief who may have voluntarily retired or who may have been removed fromoffice.

the act also provides for chiefs’ staff and their functions, which include aduty to preserve public peace and for offences and penalties relating to the officeof chief.D. Proposed Legislation

the proposed legislation seeks to entrench democratic principles oftransparency, accountability and gender sensitivity in the institution of traditionalleadership. the proposed legislation further seeks to incorporate provisions thatintroduce structures and mechanisms aimed at insulating the institution oftraditional leadership from political manipulation and promote the principles ofan open and democratic society in the discharge of their functions. to realize thisobjective, new and comprehensive provisions have been introduced on—

(a) the procedure and criteria for creation of a village and a group ofvillages;

(b) eligibility criteria for appointment of a traditional leader;(c) appointment of regent and acting appointments;(d) matters relating to elevation of traditional leaders;(e) installation of traditional leaders; (f) functions of traditional leaders;(g) removal of traditional leaders;(h) filling of vacancies in traditional leadership;(i) misconduct and discipline of traditional leaders;(j) establishment of the council of traditional Leaders;(k) gender and traditional leadership; and(l) a code of conduct.

in view of the extensive nature of the proposed changes to the existing law,the commission recommends the repeal of the act and in its place, the enactmentof the proposed legislation which is appendix i, of this report.


SPECIFIC FINDINGS AND RECOMMENDATIONS1.0 scope of tHe act

the commission commenced its work by examining the scope of the act andthe areas that needed change. the commission considered the scope of the act inlight of its name, “chiefs act”. the commission was aware that the full cadres ofleadership which chiefs form part includes other cadres that are not chiefs such asVillage Headmen and Group Village Headmen. the commission observed thatthe term traditional leaders is more inclusive of the full cadres of traditionalleadership and sought to define the scope of the act to apply to traditional leaders.

in order to ensure that reference to chiefs as “traditional leaders” does notcause confusion in the mind of an ordinary user of the term, the commissionrecommends that the term “traditional leader” should be defined in the proposedlegislation. the commission thus recommends the following definition—

“traditional leader” means a person who, under customary law of aparticular traditional community, holds the position of ParamountChief, Traditional Authority, Sub-Traditional Authority, Group VillageHead or Village Head, and is recognized in accordance with this Act.the commission then sought to examine the Long title and short title to the

act and noted that since the proposed legislation shall apply to traditional leaders,this change must be reflected in the titles of the act. the commission thereforenoted that these changes shall be reflected in the part of this report dealing withconsequential changes to the review and recommend accordingly.

2.0 Definition anD creation of ViLLaGe2.1 Definition of Villagesection 2 of the act defines a Village as—“a collection of adjacent huts in which reside at least 30 male malawians

aged 18 years or over”.the commission considered the reference to males who are 18 years and

above as outdated and inappropriate in modern malawi. it was established that thefocus on males who are 18 years and above was aimed at facilitating revenuecollection through hut tax. since hut tax was abolished, the definition no longerserves any purpose. further, the commission observed that in present daymalawi, there are female and child-headed households that require recognitionunder law, as a household. in namibia, for example, women-headed householdsand child-headed households are recognized as households in creating a newvillage. thus, the commission recommends that the definition of village shouldtake these developments into account by referring to “households” as opposed to“huts” and recognizing both women-headed and child-headed households.


regarding the definition of a “household” in case of a polygamous marriage,it was learnt that in namibia, a polygamous union is treated as one householdbecause of the presence of only one man as head of the family. furthermore, thecommission recommends that the term “household” should be defined in the actand the definition should take into account the extended family.

the commission thus recommends the following definitions—“household” includes all persons related by blood or law who

occupy a housing unit as their usual place of residence and may be asingle family, one person living alone, two or more families livingtogether, or any other group of related persons who share livingarrangements;

“village” means a collection of not less than fifty (50) householdsincluding female-headed or child-headed households;2.2 creation of Villagesection 9 empowers a chief to appoint such number of group village

headmen and village headmen as he may consider necessary to assist him incarrying out his function. the commission observed that reckless creation ofvillages became rampant after the increase of honoraria in 1994 and, as a result,in 1997, Government issued a directive to stop chiefs from creating new villages.However, many chiefs have, to a large extent, not complied with the directive asevidenced by Government statistics that indicate that there are currently overtwenty-two thousand (22,000) villages in malawi translating into over twenty-twothousand village heads.20 the impact of this on the Government funds cannot beover emphasized.

the commission observed that the reckless creation of villages has beenpossible due to lack of procedures for creating a village. the commission opinedthat introduction of a procedure for creation of a village would curb the problemof reckless creation of villages, as it will ensure that only bona fide villages arecreated.

further, involvement of the District commissioner in the creation of a villagewould mean that where the District commissioner conducts an appraisal, therewould be a recommendation for inclusion of a village headman on the payroll.the commission thus recommends the following procedure for creating avillage—

(a) where a group village headman identifies the need for creation of avillage, he or she should submit a proposal to a sub-traditional authority ortraditional authority, as the case may be;

(b) the traditional authority or sub-traditional authority shouldinvestigate the need for creation of a village through traditional counsellors


20source: ministry of Local Government.

and, if he or she is convinced, he or she should submit a proposal to theDistrict commissioner; and

(c) the District commissioner should conduct an appraisal on the needfor creation of a village, develop a report and submit it to the district councilwhich shall approve and give recommendations to include the village on thepayroll. if the proposal is rejected, the matter shall end there.regarding criteria for creation of a village, the chiefs act does not provide

for adequate guidance on how a village is created. section 2 of the act defines avillage but the definition does not offer adequate guidance for creating a village.the commission considers the absence of such criteria as a gap that needs to beresolved.

the commission considered whether the law should make provision forcriteria for creation of a village. in dealing with this issue, the commission had alengthy debate in determining the extent to which population of an area shoulddetermine creation of a village. some parts of the country have high populationwhile others have low population, as such, increase in population would not bethe appropriate factor in deciding whether a village should be created or not.therefore, the commission reached the conclusion that population alone shouldnot be taken as a sole determining factor. in namibia, population is not taken asa sole determining factor such that in some cases as low as five householdswarrant recognition of a village, more especially where households are far apartfrom each other. as such, the commission concluded that the law should providefor a minimum number of 50 households to warrant creation of a village.However, in exceptional circumstances a village may be created where there areless than 50 households. the commission further proposed that the geographicalfeatures of the area should also be taken into account.

further, the commission observed that, from time to time, Governmentimplements programmes that result in relocation of a village or villages to anotherarea. for instance, Government sometimes acquires customary land in interest ofthe public. in such circumstances, a whole village may be relocated to anotherarea or district. Government, sometimes, faces challenges in implementing suchprogrammes because traditional leaders, found in areas where a village relocates,refuse to recognize the relocated village and require that the relocated village,with its members, become part of the existing village found on the land.

this arrangement hampers implementation of Government programmessince members of the relocated village tend to go back to the land they previouslyoccupied. in view of this, the commission found that there was a gap in the lawwhich requires to be filled in order to ensure smooth implementation ofGovernment programmes. the commission observed that Government, in suchcircumstances, acquires the land upon which it relocates the village meaning thatthe title to the land passes to Government. in view of this, it logically follows thattraditional leaders who previously owned the land have no power over it. as such,


where a village relocates to another piece of land, it should be allowed to exist asa village and be recognized as such by traditional leaders in the area. thecommission therefore recommends continued recognition of a village thatrelocates to another traditional authority.

the commission thus recommends adoption of the following provisions—… (1) Where a Group Village Head identifies the need for

creation of a village, he shall inform his Traditional Authority orSub-Traditional Authority, in writing.

(2) When identifying the need for creation of a village, theGroup Village Head shall take into account the followingfactors—

(a) population of households in the village in excessof fifty (50) households; and

(b) geographical features of the area.(3) A Traditional Authority or Sub-Traditional Authority

shall upon receipt of a proposal for creation of a village inaccordance with subsection (1), investigate the proposal throughtraditional counsellors.

(4) Where a Traditional Authority or Sub-TraditionalAuthority finds the proposal justified, he shall submit theproposal for creation of a village to the district council.

(5) The district council shall, upon receipt of the proposal,conduct an appraisal and—

(a) approve the creation of the village and inclusionof the village head on the payroll; or

(b) reject the proposal, upon giving valid reasons.(6) The district council may, upon giving good and justifiable

reasons, approve the creation of a village where there are lessthan fifty (50) households.

… Where a village relocates to another area, the villageshall—

(a) continue to exist as a village;(b) submit to the authority of the Group Village

Head, where it has relocated; and(c) be recognized as a village by the Group Village

Head of the area.


Creation ofvillage

Recognition ofvillage

2.3 creation of Group of Villagesunder section 9 of the act, a chief is empowered to appoint such number of

Group Village Headmen as he may consider necessary to assist him in carryingout his functions. though the law allows a chief to create a group of villagesunder the leadership of a Group Village Headman, it has fallen short of providingfor the process and criterion to be followed. currently, there are 2,640 GroupVillage Headmen and 19,680 Village Headmen recognized by Government.21

During consultations, participants at regional consultative workshops pointedout that there are Group Village Headmen without villages some parts of thecountry. participants suggested that the law should provide for a procedure to befollowed in creating a group of villages and that a minimum number of villagesto constitute a group of villages should be prescribed.

after lengthy deliberations, the commission decided that the only way tocurb abuse in the exercise of powers of a traditional leader regarding creation ofa group of villages was to provide for a clearly stipulated procedure for creatinga group of villages and a minimum number of villages warranting creation of agroup of villages. the commission found that, in practice, the number of villageswarranting creation of a group of villages varies, in that in some areas a group ofvillages would be created where there are four, six or even ten villages. However,the commission recommends that at least ten villages should warrant creation ofa group of villages.

on the issue of who should be mandated to create a group of villages, thecommission observed that in practice a group of villages is created in two ways.a group of villages may be created by a traditional authority or by a sub-traditional authority. the commission recommends retention of the status quoand adoption of the following procedure—

(a) where a traditional authority or sub-traditional authorityidentifies the need for creation of group of villages, (in case of a sub-traditional authority, he or she shall submit a proposal for the creationof a group of villages to his or her traditional authority), the traditionalauthority shall, upon investigation through traditional counsellors andbeing convinced of the need, submit a proposal to the district council;

(b) the district council shall, upon receipt of a proposal from thetraditional authority, conduct an appraisal through the Districtcommissioner; and

(c) the District commissioner shall develop a report and submit itto the district council; the council may approve and giverecommendations to include the Group Village Headman on the payrollor may reject the proposal and inform the traditional leader who madethe proposal accordingly.


21information sourced from the ministry of Local Government in June, 2014.

related to the issue of creation of a group of villages, the commissionaddressed its mind to the personal attributes of a head of a group of villages. aGroup Village Headman is responsible for overseeing a number of VillageHeadmen, as such, he or she must possess exceptional personal attributes to beable to command respect. it was the commission’s view that the character of aGroup Village Headman should be beyond reproach. thus, the commissionrecommends that character of the person should be taken into account and that theperson should have sound leadership qualities; command respect; and should bea senior Village Headman among the Village Headmen that are going to be underhim or her. consequently, the commission recommends that section 9 of the actbe amended to reflect the proposed criteria for appointment of a head of a groupof villages.

the commission recommends that the public should be notified of theappointment of a Group Village Headman by way of Government General notice.

the commission thus recommends adoption of the following provision—... — (1) A Traditional Authority or Sub-Traditional

Authority may create a group of villages which shall comprise atleast ten (10) villages.

(2) Where a Traditional Authority or Sub-TraditionalAuthority identifies the need for creation of a group of villages,he shall submit a proposal to the district council:

Provided that where the need has been identified by a Sub-Traditional Authority, the Sub-Traditional Authority shallinform the Traditional Authority prior to informing the districtcouncil.

(3) The district council shall, upon receipt of the proposal forcreation of group of villages, conduct an appraisal and may—

(a) approve the creation of a group of villages; or(b) reject the proposal, upon giving valid reasons.

3.0 BounDaries of cHieftainciessection 3 (2) of the act provides for areas of jurisdiction of the several offices

of paramount chief, senior chief, chief and sub-chief within districts, sectionsof districts and sub-sections of districts. section 3 (3) provides that the presidentmay, from time to time, by order, declare or alter the boundaries of sections andsub-sections and may create new offices of paramount chief, senior chief orchief and assign to such offices, an area of jurisdiction he thinks proper and may,for that purpose, by such order, amend the schedule.


Creation ofgroup ofvillages

on the involvement of the president in chieftaincy matters, the commissionobserved that presidential involvement has created a lot of problems to theinstitution of chieftaincy by subjecting the institution of chieftaincy to politicalmanipulation and undermining its independence. in view of this, the commissionresolved that the president’s role in chieftaincy matters should be limited.

the commission also took cognizance of the report of the special Lawcommission on the review of Land-related Legislation, which recommends thatdemarcation of boundaries of chieftaincies should be done by traditional leadersthemselves although customary land vests in the president. as such, thecommission found that even in matters relating to boundaries of chieftaincies, therole of the president should be restricted to merely recognizing boundaries thathave been determined by traditional leaders themselves. therefore, thecommission recommends that the president should not be involved in thedeclaration of boundaries of chieftaincies and that this determination should beleft to the traditional leaders themselves.

the commission observed that boundaries of most existing chieftaincieswere determined a long time ago, as such, section 3 (3) caters for situations wherea new chieftaincy is created. in this regard, the commission identified twoscenarios that would require demarcation of boundaries under section 3 (3).firstly, where a new village is created due to, among others factors, highpopulation and secondly, where a traditional authority finds it necessary todivide his or her area in order to create sub-traditional authority for effectivemanagement of the area. the commission found that the two scenarios, that is,creation of a new village or a new sub-traditional authority require demarcationor alteration of boundaries of chieftaincies.

the commission was aware of a suggestion by some stakeholders thatboundaries of chieftaincies should be redefined and that visible marks should beplaced in boundaries of chieftaincies. the commission observed that theappointment to a higher position of paramount chief, senior chief22 andtraditional authority does not alter the jurisdiction of a traditional leader whileelevation from Group Village Head to sub-traditional authority requires thetraditional authority to determine the area of jurisdiction of sub-traditionalauthority. the commission agreed with the proposal from the regionalconsultative workshops that whenever a sub-traditional authority has beenallocated an area by the traditional authority he should not sub-divide it furtherwithout the consent of the traditional authority concerned. However, thecommission did not find a pressing need for legislating on such matters as theycould be handled administratively and recommends accordingly. further,traditional leaders requesting creation of new chieftaincies such as a new villageor a sub-traditional authority shall determine and propose the boundary of thenew chieftaincy.


22according to section 3 (2), appointment of a traditional authority to the position of senior chief does notconfer his area of jurisdiction.

the commission thus recommends adoption of the following new section—… — (1) The area of jurisdiction of traditional leaders

established under section …23 shall be the districts, sections ofdistricts and subsections of districts specified in the first columnof the … Schedule opposite each respective office.

(2) The Minister may, on recommendation of the districtcouncil concerned, by Order published in the Gazette, declare oralter boundaries of sections and sub-sections in order to create anew area of jurisdiction.

(3) A certificate in writing of a District Commissioner of thesituation of a boundary of any section or sub-section in hisdistrict shall, unless such certificate is inconsistent with an Ordermade under subsection (2), be conclusive evidence for allpurposes of the situation of such boundary.

4.0 appointment of cHiefssection 4 of the act provides for the appointment of chiefs. it empowers the

president to appoint paramount chiefs, senior chiefs and chiefs. the presidentis required to be satisfied that the person in question is entitled to such an officeby virtue of customary law prevailing in the district and that he has the support ofthe majority of people in the area of jurisdiction of the office in question. thecommission discussed three aspects of this provision: the appointing authority,the eligibility criteria and the elevation of traditional leaders.

4.1 appointing authoritythe commission observed that the power of appointment of chiefs conferred

on the president has attracted criticism in the democratic malawi. this power isperceived to erode the independence and proper functioning of the institution ofchieftaincy in view of the practice that has developed where political affiliationtakes precedence despite the fact that the law requires prior consultations. theconsequence has been that traditional leaders are unable to distinguish betweenpolitics and their traditional responsibilities. the commission considered itpertinent that the law should provide for mechanisms to curb abuse of powers bythe president and to ensure that democratic principles of transparency andaccountability are adhered to in the appointing process.

the commission considered the practice obtaining in other jurisdictions suchas namibia, zambia and south africa. in namibia, appointment of traditionalleaders is determined under customary law of the community concerned.members of a traditional community designate a person as chief of a traditionalauthority in accordance with the customary law of the community. in namibia, a


Area ofjurisdiction of traditionalleaders

23section on establishment of offices of traditional leader.

person is designated as a “chief” if he or she has been chosen from the royalfamily while in cases where the person so designated does not belong to the royalfamily he is called “head” of the traditional authority.24 the role of the presidentin such appointments is so invisible such that the president is not even involvedin the selection and appointment of a chief or head of the traditional authority. thepresident is merely given notice of the designation and he or she recognizes thedesignated chief or head by publishing his or her name in the Gazette.25

on the issue of appointing authority of a traditional authority, thecommission established that, in namibia, members of a community designate aperson as chief or head of the traditional authority in accordance with thecustomary law of the community. thus, in namibia, members of the communityare involved in the appointing process of a traditional leader, in that, where theroyal family does not have an appropriate person for appointment as a traditionalleader, a member of the community is appointed to head the traditional authority.

in zambia, royal families choose traditional leaders according to their cultureand the president only approves the selection through publication in the Gazette.in zambia, therefore, recognition of a traditional leader by the president isconfined to publication in the Gazette.

in south africa, a royal family identifies a person who qualifies undercustomary law to assume the position of, for example, king or Queen and thepresident recognizes the person so identified, by way of notice in the Gazette andissues a certificate of recognition to the identified person.26

in light of practices prevailing in the three countries, the commissiondeliberated on which scenario would best suit the situation in malawi, that is,between vesting the power of appointment in the royal family and inclusion ofmembers of the community in the appointment of a traditional leader. thecommission observed that inclusion of the whole community in the appointmentprocess would open up the chieftaincy to abuse, political manipulation and wouldcompromise the effectiveness of the royal family especially where the choice ofthe family differs with that of the community. therefore, the commissionconcluded that there is no need to allow participation of members of thecommunity in the appointment of traditional leaders. the commissionrecommends that in relation to traditional authorities, identification of a personwho qualifies and is suitable to assume the position of traditional authority shouldbe done by the royal family to the exclusion of members of the community.

the commission recommends that the role of the president shall be restrictedto only recognizing the person so identified by issuing a certificate ofrecognition. consequently, the royal family shall be the appointing authority andnot the president as is currently the case. similarly, for positions from VillageHeadman to Group Village Headman, the royal family shall identify the personwho qualifies for the position and the traditional authority shall recognize the


24section 4 (1) (a) of the traditional authority act.25section 6 of the traditional authorities act of namibia.26section 9 of the traditional Leadership and Governance framework act.

person so identified by issuing or giving the person a register called kaundula andentering his or her details in the register of traditional leaders which shall be keptby the traditional authority. the traditional leader shall sign against his or hername in the latter register. further, acting appointments should follow the sameprocedure.

regarding the position of sub-traditional authority, the commission hadrecourse to section 5 of the act. it provides that a chief may request the presidentto appoint, in writing, under his hand, any person to the office of sub-chief. thecommission was however informed that, in practice, a traditional authority whofeels that his area is too big for him or her to effectively manage, may share partof the area to his or her relative to manage as a sub-traditional authority hencethe request is made to the president to officially appoint a sub-traditionalauthority. after lengthy discussion of the matter, the commission reiterated itsearlier position that involvement of the president in the appointments oftraditional leaders results in abuse of powers by the president and underminesdemocratic principles of transparency and accountability. as such, thecommission recommends that the appointing authority for sub-traditionalauthorities should be the traditional authority. the president’s role should berestricted to recognizing the person so appointed by the traditional authority byissuing a certificate of recognition.

related to the issue of appointment of sub-traditional authority is criteriafor appointment in terms of how many groups of villages warrant appointment ofsub-traditional authority. stakeholders at the national consultative workshopsuggested that the new law should provide for a minimum number of villages,which should warrant creation of a sub-traditional authority. the commissionconsidered this view and observed that appointment of a sub-traditionalauthority is normally done by the traditional authority as such there was needfor the law to regulate the exercise of such powers in order to ensure that there isno abuse. the commission found that since a sub-traditional authority shalloversee groups of villages, the law should provide for a minimum number ofgroups of villages, which should warrant creation of sub-traditional authority.after an extensive discussion of the matter, the commission resolved that aminimum of at least ten (10) groups of villages should warrant appointment of asub-traditional authority and recommends accordingly.

the commission found that the act does not make provision for a periodwithin which a vacant position in traditional leadership should be filled. thecommission acknowledged that traditional leadership positions that haveremained vacant for long periods of time deprived people in the areas concerned,meaningful development.

the commission addressed this issue at two levels. firstly, the commissionconsidered the need for the law to clearly stipulate a period within which avacancy in the traditional leadership must be filled. it established that thechieftaincy of mzikubola in mzimba, for example, has remained vacant for over


ten years at the publication of this report. the commission attributes thisscenario to the gap in the law. in order to determine the appropriate period, thecommission had recourse to legislation in other jurisdictions within the saDcregion in particular, zimbabwe and Botswana.

in zimbabwe, section 3 (1) (b) of the traditional Leaders act provides that avacancy in the office of a traditional leader shall be filled within two years andwhere the appropriate persons fail to nominate a candidate for the position withintwo years then, the minister, in consultation with the appropriate persons, shallnominate a person for that position. in Botswana, section 5 (2) of the chieftaincyact27 provides for the revision of the position of regent.28 the provision allowsfor periodic assessment of the need to retain the regent in the position or not.

the commission considered it pertinent to stipulate the period within whicha vacant position must be filled in order to ensure that vacancies do not exist foran unnecessarily long time. after a lengthy discussion on the matter, thecommission opted for a one-year period as a maximum period within which atraditional leader’s position must be filled, from the time the need for filling thevacant position arises. the commission observed that traditional leadershippositions may even be filled before the expiry of 12 months. the commissionnoted that under ngoni culture, successors are known as early as at the burialceremony. in namibia, a deceased traditional leader is mourned for one week,after which identification of a successor begins but the installation ceremony forthe newly appointed leader may take longer depending on the preparedness of theappointed leader. the commission thus found it necessary to provide for areasonably short period of 12 months for the identification of a successor in orderto avoid creating a vacuum in the leadership. as such, the commissionrecommends that a vacancy in traditional leadership should be filled within aperiod of 12 months.

secondly, the commission found the need to make provision for instanceswhere the stipulated period has elapsed and the royal family has failed to appointa person to fill a vacant position. the commission noted that in zimbabwe, theminister is mandated to appoint a person to fill a vacant position where theappropriate persons fail to do so within two years.29 the commission observedthat involving the minister in the identification of a traditional leader where theroyal family fails to appoint a person within the stipulated period would result inexposing the chieftaincy to political manipulation. as such, the commissionconsidered allowing traditional leaders within the district to assist the royal familyin the identification of a traditional leader; and where this fails, traditional leadersfrom another district should assist the royal family. therefore, the commissionrecommends that where there is a dispute in the appointment of a traditional


27chieftaincy act of Botswana, cap. 41:01.28a regent is a person who is appointed to hold the position on behalf of the rightful person where the person

is below the age of twenty one (21) or where the rightful person is above twenty one (21) years but forwhatever reasons it is impossible for the person to hold the traditional position.

29section 3(1) (b) of the traditional Leaders act.

leader, the District commissioner should facilitate the appointment of atraditional leader by appointing traditional leaders within the district to assist theroyal family in resolving the dispute and identification of an appropriate person.it recommends further that where the assistance of traditional leaders within thedistrict fails to resolve the issue, the District commissioner shall facilitate theappointment of a traditional leader with the assistance of traditional leaders fromanother district.

the commission thus recommends adoption of the following provisions onappointment of traditional leaders—

… — (1) There are hereby established the several offices ofParamount Chief, Traditional Authority and Sub-TraditionalAuthority set out in the second, third and fourth columns of the......... Schedule respectively.

(2) In addition to offices established under subsection (1),there is hereby recognized the following lower cadres oftraditional leadership of Group Village Head and Village Head.

... — (1) Where a need for filling a vacancy in the office of aParamount Chief arises, the royal family shall, within twelve (12)months and with due regard to applicable customary law,identify and nominate a person who qualifies to assume theposition of Paramount Chief.

(2) The royal family shall, in writing, inform a districtcouncil of the particulars of the person nominated to fill theposition of Paramount Chief.

(3) Where the district council is satisfied that a person hasbeen nominated in accordance with customary law and inaccordance with this Act, the district council shall inform theroyal family for formal appointment of the person as ParamountChief.

(4) Where there is evidence or allegation that the nominationof a person referred to in subsection (1) was not done inaccordance with customary law or this Act, the district councilshall refer the matter back to the royal family for reconsiderationand resolution within sixty (60) days.

(5) Where the matter, which has been referred back to theroyal family under subsection (4), has been reconsidered andresolved, the royal family shall inform the district council.

(6) The district council shall, upon receiving communication


Offices oftraditionalleaders andtraditionalleadershippositions

......... Schedule

Appointmentof ParamountChief

of formal appointment, notify the Minister who shall, in turn,inform the President of the appointment, in writing, specifyingthe name, official title, traditional title, if any, and date ofappointment.

(7) The President shall, upon receipt of a notice referred to insubsection (6), recognize the person appointed as ParamountChief by issuing a Certificate of Recognition.

(8) Where the President does not issue a Certificate ofRecognition and three (3) months have passed since the time ofnotification under subsection (6), it shall be deemed that thePresident has recognized the appointment.

(9) Where the President has issued a Certificate ofRecognition in accordance with subsection (7) or it is deemed thatthe President has recognized the appointment in accordance withsubsection (8), the Minister shall publish the notice of recognitionin the Gazette.

… — (1) When a need for filling a vacancy in the office of aTraditional Authority arises, the royal family shall, within twelve(12) months and with due regard to applicable customary law,identify and nominate a person who qualifies to assume theposition of Traditional Authority.

(2) The royal family shall, in writing, inform a districtcouncil of the particulars of the person nominated to fill theposition of Traditional Authority.

(3) Where the district council is satisfied that a person hasbeen nominated in accordance with customary law and inaccordance with this Act, the district council shall inform theroyal family for formal appointment of the person as TraditionalAuthority.

(4) Where there is evidence or allegation that the nominationof a person referred to in subsection (1) was not done inaccordance with customary law or this Act, a district council shallrefer the matter back to the royal family for reconsideration andresolution within sixty (60) days.

(5) Where the matter, which has been referred back to theroyal family under subsection (4), has been reconsidered andresolved, the royal family shall inform the district council.

(6) The district council shall, upon receiving communicationof formal appointment, notify the Minister who shall, in turn,inform the President of the appointment, in writing, specifyingthe name, official title, traditional title, if any, and date of


Appointment of TraditionalAuthority

appointment.(7) The President shall, upon receipt of a notice referred to

under subsection (6), recognize the person appointed asTraditional Authority by issuing a Certificate of Recognition.



… — (1) Where groups of villages exceed ten (10) in number,a Traditional Authority shall, in consultation with the royalfamily, identify and nominate a person to be recognized as Sub-Traditional Authority.

(2) Where a Traditional Authority nominates a person undersubsection (1), he shall specify the boundaries of the area ofjurisdiction in consultation with Group Village Heads of theproposed Sub-Traditional Authority.

(3) A Traditional Authority shall inform a district council, inwriting, of the particulars of the person so nominated and thearea of jurisdiction proposed for the Sub-Traditional Authority.

(4) Where the district council is satisfied that the person hasbeen nominated and the area has been proposed in accordancewith applicable customary law and this Act, the district councilshall notify the Traditional Authority for formal appointment.

(5) Where there is evidence or allegation that the nominationand the proposal of the area of jurisdiction in subsections (1) and(2) respectively, was not done in accordance with customary lawor this Act, the district council shall refer the matter back to theTraditional Authority for reconsideration and resolution withinsixty (60) days.

(6) Where the matter, which has been referred back to theTraditional Authority under subsection (5), has beenreconsidered and resolved, the Traditional Authority shall informthe district council.

(7) The district council shall, upon receiving communicationof formal appointment, notify the Minister who shall, in turn,inform the President of the appointment, in writing, specifying


Appointmentof Sub-TraditionalAuthority

the name, official title, traditional title, if any, and date ofappointment.

(8) The President shall, upon receipt of a notice referred tounder subsection (7), recognize the person appointed as Sub-Traditional Authority by issuing a Certificate of Recognition tothe person appointed.



… — (1) Subject to subsection ....., a Traditional Authoritymay appoint a Group Village Head or Village Head, as he mayconsider necessary, to assist him in carrying out his functions.

(2) Where the need to fill a position of a Group Village Heador Village Head arises, the Traditional Authority shall, withintwelve (12) months and having regard to applicable customarylaw, identify and nominate a person who qualifies undercustomary law to assume the position of Group Village Head orVillage Head.

(3) The Traditional Authority shall inform the districtcouncil, in writing, of the particulars of the person nominated tofill the position of Group Village Head or Village Head.

(4) Where a district council is satisfied that a person has beennominated in accordance with the applicable customary law andthis Act, the district council shall notify the Traditional Authorityfor formal appointment.

(5) The Traditional Authority shall upon receipt of thecommunication referred to under subsection (4), formallyappoint the nominee by giving the person a register and enteringhis name in the register of traditional leaders.

… — (1) Where an appointing authority fails to identify aperson to fill a vacancy within twelve (12) months, the DistrictCommissioner shall facilitate identification of a person throughthe assistance of other traditional leaders within the district.

(2) The District Commissioner shall, facilitate identification


Appointmentof GroupVillage Headand VillageHead

Failure tofill avacancy

of a person through traditional leaders from another district,where traditional leaders within the district fail to assist theappointing authority.

4.2 regencysection 10 of the act provides for acting appointments. it provides that the

president may appoint such other person to act in the office of paramount chief,senior chief, chief or sub-chief where the holder of such an office is unable tofulfil the functions of his office satisfactorily due to age, infirmity or any otherreason.30 the person so appointed is required to carry out all functions of theoffice. moreover, during the period of such acting appointment, the substantiveholder of the office is prohibited from carrying out any of the functions of theoffice.31 the commission noted that malawi, just like some of the countries in thesaDc region recognizes regency where a person may be appointed to act in theoffice of a traditional leader due to the holder’s age or incapacity or other factors.

the commission also considered the provisions of section 13 of the actwhich provides for the appointment of a chiefs’ council. a chiefs’ council,under this section, is appointed by the president to perform the functions of achief where the president removes a person from the office of chief and is of theopinion that no other person is suitable for appointment to such office. thechiefs’ council consists of a chairperson and three or more members, all ofwhom are appointed by name. the commission considered that a situation wouldnot arise where the position of a traditional leader would be vacant on account ofthere being no suitable person to hold such office, since it has recommended thatpowers to appoint traditional leaders should vest in the royal families.

on this matter, the commission also had recourse to comparativejurisdictions for guidance and noted that namibia also recognizes regency wherethe traditional leader is absent, incapacitated or where the rightful person is aminor. the name of a regent is not gazetted upon appointment. this provides asafeguard to stop the regent from clinging to the position when the rightful owneris ready to assume power. thus, as long as the regent holds such a position,Government does not recognize him as a traditional leader. the commissionacknowledged that some chieftaincy wrangles in malawi are a result of a regentclinging to the position.

after a lengthy discussion, the commission concluded that a regent shouldnot be recognized by way of publication of his name in the Gazette. instead hisname should be published in a General notice and he should not be entitled toemoluments of a traditional leader. the royal family should inform the ministryresponsible for Local Government about the appointment of a regent and if theminister wishes, he or she could inform the president as an administrativearrangement but the regent shall not be paid any emoluments. the regent shall,


30section 10 (1) of the chiefs act.31section 10 (2) of the chiefs act.

however, be entitled to any traditional benefits that accrue to a traditional leaderin whose position the regent is serving and shall also be subject to the disciplinarymechanisms under the proposed legislation.

the commission therefore recommends that where there is no suitableperson or the person is too young to hold the office of traditional leader, the royalfamily should be empowered to appoint a regent (kalinde in vernacular) until asuitable person is identified or the person who is young becomes an adult.consequently, the commission adopts the following provision—

… — (1) Where an appointing authority considers that atraditional leader is unable to fulfill the functions of his officesatisfactorily, by reason of —

(a) age;(b) infirmity;(c) criminal conviction;(d) suspension; or(e) other incapacity,

the appointing authority may appoint another person to act inthe office as regent.

(2) The regent shall—(a) perform all the functions of the office;(b) be recognized by way of publication of his name in a

General Notice; and(c) not be entitled to emoluments of a substantive

traditional leader.(3) Where the regent is appointed, the substantive holder of

the office shall not perform any of the functions of the office. (4) The appointing authority shall inform the Minister, in

writing, of the appointment of a regent, through the DistrictCommissioner.

(5) Where conditions under subsection (1) cease to apply, aregent shall cease to hold office of traditional leader.

4.3 installationthe commission noted that the act is silent on installation of traditional

leaders; but in practice the president has been publicly presiding over installation


Regency

ceremonies of paramount chiefs, senior chiefs, traditional authorities and sub-traditional authorities. During an installation ceremony, a traditional leader isofficially inducted into his or her position. at the function, a traditional leader ismade to wear a crown or gown or is handed traditional items, for instance, a shieldand a spear.

the commission considered the issue of who should have the mandate toinstall a traditional leader and what should be done at an installation ceremony. indebating this issue, the commission had recourse to practices in other countriesin the saDc region. for example, the commission established that installationof a traditional leader in zambia is done by a senior chief in the tribe and isgenerally a traditional function, which may sometimes be graced by the minister.Likewise, in namibia, installation of a traditional leader is a traditional functionat which the president is not involved. in addition, the chief or head of atraditional authority takes or subscribes to an oath or solemn affirmation of officeas required by the relevant customary law. the chief Justice administers the oathor affirmation. the commission established that in zimbabwe, a traditional leaderascribes to an oath of office, is given a crown and a chief’s stick as well as anational flag at installation.

the commission noted that there is a common trend in countries within thesaDc region where traditional leaders ascribe to an oath of office. thecommission was of the view that, in malawi, requiring a traditional leader toascribe to an oath of office would instill in traditional leaders a sense ofresponsibility and reinforce independence of the institution of the chieftaincy andin so doing attempt to insulate the traditional leader from political interferenceand manipulation. the commission thus found the practice of administering anoath of office to a traditional leader at an installation ceremony a good practiceworth introducing in malawi. it therefore recommends that senior traditionalleaders should take or ascribe to an oath of office or affirmation at the installationceremony. further, the commission recommends that the administration of anoath of office for traditional leaders should be done as follows—

(a) a registrar of the High court shall administer the oath of office at theinstallation of a paramount chief;

(b) a resident magistrate shall administer the oath of office at theinstallation of a traditional authority and a sub-traditional authority.the commission found the practice of giving a traditional leader items like

the national flag, among others, during installation in order and recommends thatat the installation ceremony, a traditional leader should be given a seal, a stamp,appropriate regalia commensurate with the tier of the traditional leader, thenational flag and whatever ought to be given to the traditional leader inaccordance with the custom or tradition prevailing in the area.

further, the commission recommends that installation of a paramount chiefshould be done by the minister, whilst installation of traditional leaders of the


lower cadres should be done as follows—(a) traditional authority shall be installed by a paramount chief;(b) sub-traditional authority shall be installed by a traditional

authority.the commission thus recommends adoption of the following provisions—

... — (1) The Minister shall conduct the installation of aParamount Chief.

(2) Installation of other traditional leaders shall beconducted as follows—

(a) a Paramount Chief shall install a TraditionalAuthority; and

(b) a Traditional Authority shall install a Sub-Traditional Authority.

(3) A traditional leader shall, at an installation ceremony, begiven the following items—

(a) a seal;(b) a stamp;(c) appropriate regalia commensurate with the tier

of traditional leadership;(d) a national flag; and(e) any other article that is traditionally given to a

traditional leader in accordance with the prevailingcustom.

… — (1) A traditional leader holding the position ofParamount Chief, Traditional Authority or Sub-TraditionalAuthority shall ascribe to an oath of office or affirmation, at aninstallation ceremony, set out in the ........... Schedule.

(2) An oath of office or affirmation shall be conducted asfollows—

(a) a Registrar of the High Court shall administeroath or affirmation to a Paramount Chief; and

(b) a Resident Magistrate shall administer oath oraffirmation to a Traditional Authority or Sub-Traditional Authority.


Installationof traditionalleaders

Oath of officeor affirmation

4.4 eligibility criteria for appointmentthe commission considered the eligibility criteria for appointment specified

in section 4 (2) of the act as inadequate in guiding an appointing authority whenchoosing a person for appointment as traditional leader. the commission was ofthe view that the criteria of entitlement by virtue of customary law and support ofmajority of people in the area are not strict enough and are prone to manipulation.in order to prevent manipulation, the commission recommends adoption ofcriteria on appointment of a traditional leader, thus: the person must be—

(a) a member of the royal family;(b) entitled to appointment as traditional leader under custom or

tradition;(c) without a criminal record;(d) able to command respect and trust of the people; and(e) of sound mind.

the commission observed that the act does not stipulate any educationalqualification for appointment of a person as a traditional leader. the commissionconsidered the need for the introduction of a minimum education qualification assuggested by stakeholders.32 the rationale for the introduction of minimumeducational qualification being that functions which are performed by traditionalleaders in the present democratic malawi as well as the role of traditional leadersin advancing Government’s development agenda require traditional leaders toacquire a certain level of education. examples given included the role assigned totraditional leaders under the Local Government act as agents of development intheir local areas; the role to keep records of births, deaths and marriages under thenational registration act;33 and the anticipated role in land administration andmanagement propagated by the 2002 national Land policy and consequentproposed legislation.

the commission recognized the importance of the institution of chieftaincyin democratic malawi and the need to modernize it to cope with social changes.the commission was aware that currently responsibilities of traditional leadersgo beyond traditional functions and therefore require a certain minimum level ofeducation.

However, the commission was concerned that including education as aneligibility criterion would result in people who are not rightful heirs at customarylaw ascending to chieftaincy because they have the requisite educationqualifications. the commission established that in many jurisdictions the besteligibility criteria that a person must possess to become a traditional leader arethose determined by custom.


32these views were expressed at a consultative workshop on the review of the chiefs act organized by thecatholic commission for Justice and peace at crossroads Hotel on 27th may, 2010.

33act no. 15 of 2009.

after lengthy debate and after observing that for a person to qualify as amember of parliament, the requirement is that they should be able to read andwrite english, the commission resolved that it would be too early for malawi toprescribe in the law, education qualifications for traditional leaders.consequently, the commission recommends that traditional leaders should beable to read and write as a minimum qualification. participants at regionalworkshops viewed the commission’s recommendation that a traditional leadershould be able to read and write english as timely and appropriate.34 thecommission was of the considered view that this recommendation shall bereinforced by the recommendation made by its sister special Law commission onthe review of the education act that there should be compulsory primaryeducation in malawi.35

to this extent, the commission further recommends that the requirement thata traditional leader should be able to read and write english should be confined tofuture appointments only and not the existing ones. in making thisrecommendation, the commission took into consideration that some districts inmalawi have high illiteracy levels. as such, the commission calls uponGovernment, through the ministry responsible for Local Government and ruralDevelopment, to introduce policies and implement programmes that wouldpromote literacy among traditional leaders and in their families.

the commission thus recommends adoption of the following provisions—

… — (1) A person shall qualify for appointment as atraditional leader, if the person—

(a) where applicable, is a member of the royalfamily;

(b) is entitled to hold office under customary law ortradition;

(c) has no criminal record;(d) commands support, respect and trust in the

area of jurisdiction;(e) is of sound mind; and(f) is able to read and write English.

(2) When appointing a traditional leader, an appointing authority shall take into account the following factors—


34Views of participants at the northern region consultative workshop held at mzuzu Hotel on the 25th ofoctober, 2012.

35Law commission report on the review of the education act, 2010.

Eligibilitycriteria

(a) seniority of the person or chieftaincy, as thecase may be;

(b) the customary law applicable in the area;(c) integrity of the person to be appointed; and(d) the level of respect the person commands

generally.(3) Government shall, through the Minister, initiate

and implement policies and programmes aimed at promotingliteracy in royal families.

4.5 elevation of traditional Leadersthe commission considered the provisions of section 4 (2) of the act and

noted that it treats the issue of elevation the same way as that of appointment. thecommission considered this approach inappropriate. the commission was of thefirm view that section 4 does envisage promotion to the established offices ofparamount chief, senior chief or chief. the provision entails that promotioncould be done in order to fill a vacancy as well as creation of new offices ofparamount chief, senior chief or chief.

the commission found that problems have been experienced with themanner in which presidents have been exercising powers to appoint chiefs andcreation of new offices, which has led to chieftaincy wrangles, some of whichremain unresolved. it also found that other traditional leaders who have beenelevated to senior traditional leadership positions do not have an area ofjurisdiction. in light of the commission’s recommendation that the presidentshould not exercise the power to appoint traditional leaders in order to avoidchieftaincy wrangles, the commission recommends that the president shouldcease to exercise the power to create new offices of traditional leadership. therationale is that if the president is allowed to continue exercising the power tocreate new offices, it would defeat the purpose of depoliticizing the institution ofchieftaincy.

the commission was aware that the position of senior chief was notoriginally in the act. it was introduced by an amendment to the act in 1999 andimplementation of the provision requires that all traditional leaders in the districtshould recognize the traditional leader as being entitled under customary lawprevailing in the district.36 in practice, presidents exercise the power to appoint asenior chief without involvement of traditional leaders in the district such that theappointments have depended more on political affiliation than merit. thecommission found the implementation of appointment of senior chiefproblematic and that one of the reasons it was introduced was to justify a salaryraise hence the law does not provide for functions of senior chief.


36 section 4 (2) (c) of the act.

the commission acknowledged that the lack of adherence to therequirements of section 4 (2) has brought disorder and disrespect to the office andtraditional hierarchy of chiefs in districts. in some cases, it has also proveddifficult for a chief to respect a senior chief who under customary law issupposed to be his or her junior.

the commission considered the position from other jurisdictions within thesaDc region and noted that since independence, in zambia, a chief has not beenelevated to a rank of a senior chief or paramount chief. as such, whenever asenior chief dies, the royal family selects another person who assumes theposition of senior chief. thus, seniority of a chief in zambia lies with the royalfamily as opposed to the holder of the office.

in namibia, traditional leaders holding the highest positions of king or queenor head of traditional authorities are not elevated. However, elevation happens atthe lower cadres of traditional leadership whereby junior traditional councilorsare promoted to the position of senior traditional councilors.

in addition, section 4 (3) provides that recognition of any person as seniorchief does not affect the status of the substantive office of chief or confer on theperson additional jurisdiction to the jurisdiction which he had before beingelevated as senior chief. thus, elevation to the position of senior chief ispersonal to holder, which means that where a traditional authority appointed tothe position of senior chief dies the successor holds the title of traditionalauthority since the title of senior chief is conferred on the person and not theroyal family. the conferment of senior chief does not attach to a particular tribeor family.

the commission also found that according to the practice in the saDcregion, there is generally no elevation except for lower cadres of traditionalleadership. the commission therefore recommends abolition of the position ofsenior chief in order to correct the anomaly that was created by law in providingfor a position that has resulted in disorder and disrespect to the office, andtraditional hierarchy of traditional leaders in districts. this recommendation is inline with views expressed during consultative workshops, which were to theeffect that the position of senior chief should be abolished because it has notserved any purpose apart from creating enmity and confusion in the traditionalleadership since it was introduced in the law.

considering that the law does not operate retrospectively, the commissionfurther recommends that traditional leaders who have already been appointed tothe position of senior chief shall continue to hold the position of senior chiefuntil they die or are removed from office.

in discussing the position of senior chief further, the commissionconsidered views from the consultative workshops that the law should clearlyprovide for functions of a senior chief. in view of the commission’s


recommendation to abolish the position of senior chief, it found no reason tomake provision for the functions of senior chief.

in discussing the issue of paramount chiefs, the commission observed thatappointment to this position of traditional leadership confers an honour on thechieftaincy based on an ethnic group. for example, there is paramount chiefLundu for the chewa ethnic group; paramount chief Gomani for the masekongoni ethnic group; paramount chief m’mbelwa for the zwangendaba ngoni inmzimba; and paramount chief chikulamayambe for the tumbuka tribe.However, the commission observed that some paramount chiefs are personal toholder while others are permanent. with the positions that are personal to holder,when an incumbent paramount chief leaves office, he is not replaced by anotherparamount chief while for the permanent ones, there is always a successor to theposition. the commission noted that paramount chiefs who are personal toholder are paramount chief chikulamayembe and paramount chief kyungu. thelate paramount chief mkhumba of mulanje also held the position personal toholder.

Historically, the act provides in the schedule the following paramountchiefs as permanent: paramount chief Lundu; paramount chief Gomani andparamount chief m’mbelwa. in view of this scenario, the commissionrecommends maintenance of the status quo, that is paramount chiefs who arepermanent according to history of the country shall remain permanent while thosethat are personal to holder shall remain personal to holder. consequently, thecommission recommends that the schedule to the act shall continue to onlyreflect paramount chiefs who are permanent according to the history of thecountry.

the commission thus recommends adoption of the following provision—… — The Act shall recognize the following offices of

Paramount Chiefs as permanent—(a) Gomani;(b) Lundu; and(c) M’mbelwa.


RecognizedParamountChiefs

5.0 powers, Duties anD functions of cHiefssection 6 of the act provides that the functions of a paramount chief shall

be specified by the president in the letter of appointment of the holder of suchoffice or subsequently by writing under his hand. the commission establishedthat the president has not at any point in time set out such functions in writing.the commission was however informed that a practice has developed where thepresident simply advises the traditional leader of his responsibility verbally oninstallation. the commission found this position unsatisfactory and recommendsthat the functions of a paramount chief should be stipulated in the law.

related to the issue of powers, functions and duties of traditional leaders, thecommission took note of the fact that some paramount chiefs double the role ofparamount chief and traditional authority while others do not. the commissionconsulted paramount chiefs on the matter and established that such arrangementshave existed for many years as such it would not make sense to abolish them now.it was observed that some paramount chieftaincies were personal to holder; assuch, it would be unfair to require such a paramount chief (who also holds theposition of traditional authority) to relinquish the position of traditionalauthority as this would cause complications within the royal families affected inrespect of succession.

the commission further observed that the matter depends on the culture andtradition followed by a particular chieftaincy. as such, the commission notedthat, unlike paramount chiefs Lundu, m’mbelwa and kyungu, paramount chiefGomani of ntcheu does not double as a traditional authority and his headquartersis located in the area of traditional authority chakhumbira. the commissionobserved that the arrangement does not pose any threat or problems to the Gomanichieftaincy.

after considerable debate, the commission concluded that there is nomischief necessitating legislative intervention. the commission was aware thatthose paramount chiefs who double their roles as traditional authorities do notreceive double remuneration from Government in their capacity as traditionalauthorities and paramount chiefs. the commission therefore recommends thatthe status quo should be maintained.

section 7 of the act provides that a chief shall preserve the public peace;carry out the traditional functions of his office under customary law in so far asthe discharging of such functions is not contrary to the constitution or any writtenlaw and is not repugnant to natural justice or morality; assist in the collection oftax; assist in the general administration of the district in which his area ofjurisdiction is situated and for the purpose of carrying out the functions as theDistrict commissioner may require; and carry out and enforce any lawfuldirections of the District commissioner.

the commission observed that the functions of a chief as provided for undersection 7 of the act are clear and specific. the commission, however,


recommends deletion of paragraph (c) which requires chiefs to assist in thecollection of tax as this function is no longer applicable.

in debating the functions further, the commission was aware that traditionalleaders have failed to distinguish between their traditional functions and politicsby misinterpreting their obligation to support Government in developmentprojects as requiring them to tow a ruling party political agenda without questionthereby politicizing the institution of chieftaincy. the commission found thisdevelopment unfortunate. in order to clarify the position, the commissionrecommends that a traditional leader shall assist and cooperate with theGovernment and the district council in the implementation of public policies andprogrammes where cooperation with Government means assisting theGovernment in its development agenda. the commission emphasized that thisdoes not mean traditional leaders engaging in politics.

in both namibia and zambia, traditional leaders are required to cooperatewith Government in the execution of policies and programmes which thetraditional leaders understand to mean assisting Government in its developmentagenda. in malawi, this is partially fulfilled by the inclusion of traditional leadersin local government authorities. However, the commission recommends that theministry responsible for Local Government should intensify civic education tochange the mindset of traditional leaders in order for them to understand thatassisting and cooperating with Government in the implementation of policiesmeans pursuing Government’s development agenda and not political agenda forthe benefit of their communities.

the commission established that in the saDc region traditional leaders arenot only charged with the responsibility over traditional or customary issues butare regarded as catalysts for socio-economic development. for example, innamibia, traditional leaders play a vital role in democratic governance andentrenchment of democratic principles of accountability and transparency. theyhave played an important role in modernizing customary law and tradition inorder to comply with demands of the democratic dispensation. to that end, theyhave assisted in changing some discriminatory customs and practices ininheritance laws and have assisted in engendering traditional leadership.37 thesedevelopments underscore the fact that functions and responsibilities of traditionalleaders have evolved tremendously hence the need for the law to change in orderto match with social change.

sections 8 and 9 of the act provide for the functions of a sub-chief, a GroupVillage Headman and a Village Headman. a sub-chief is required to performsuch duties as may be delegated by a chief whereas a Group Village Headman isrequired to assist a chief or sub-chief by whom he is appointed in theperformance of his functions and to bring to his notice any matter in his village or


37for example, inheritance laws on deceased property required that upon the death of husband all wealth shouldbe given to his mother and father and not to his wife, nowadays the wife is entitled to inherit property of herhusband. also women were not allowed to assume traditional leadership positions, this practice was changed inthat women currently hold senior positions of Queens, senior or junior counsellors.

group of villages which is relevant to such functions.During consultations, some stakeholders were of the view that powers,

functions and duties of a sub-traditional authority, Group Village Headman andVillage Headman, should be clearly stipulated in the legislation. it was consideredthat merely providing for delegation or requiring these leaders to assist theirchiefs in the performance of his functions is not satisfactory. the commissionconsidered the views of stakeholders and warned itself of the danger of stipulatingspecific functions, as there is a possibility of omitting some functions and thatsuch an approach might be tantamount to tying the hands of the traditional leaderas these leaders are appointed for purposes of helping such leader in the dischargeof his functions. the commission concluded that the functions provided for undersection 9 of the act were flexible and appropriate. the commission also found itnecessary to provide for explicit general functions for guidance and thereforerecommends stipulation of general functions accordingly.

the commission also found out that sections 6, 7, 8 and 9 of the act createa scheme which confers responsibility dependent on seniority of a traditionalleader. for example the functions spelt out in section 7 are only for “chiefs ortraditional authorities”, while section 8 confers only delegated powers on sub-chiefs and such delegation may not extend to any function which undercustomary law may not be exercised by a person other than a traditionalauthority. further, section 9 confers on a Group Village Headman and a VillageHeadman, the lesser role of merely assisting a chief or sub-chief and bringing tothe notice of such chiefs any matter in his village or group of villages relevant tosuch functions.

in debating these provisions, the commission was aware of the importanceof maintaining this scheme. the commission, however, conceded the need toexpound the functions and responsibilities of traditional leaders in modernmalawi and recommends adoption of the following provisions—

…— The functions of the office of the Paramount Chief shallbe to provide overall supervision of all traditional leaders in hisregion and to—

(a) promote the welfare of people;(b) ascertain the customary law of his ethnic group, in

consultation with Traditional Authorities of that ethnicgroup, and assist in its codification;

(c) carry out the traditional functions of his office undercustomary law in so far as the discharge of the functions isnot contrary to the Constitution or any written law and isnot repugnant to natural justice or morality;

(d) perform traditional ceremonies and functions;


Functions ofParamountChief

(e) ensure conservation of natural resources, theenvironment and the ecosystem in his area of jurisdiction;

(f) hear appeals arising out of disputes concerningmatters handled by Traditional Authorities of his tribe;

(g) where applicable, perform functions that areconferred on traditional leaders under section …; and

(h) perform any other functions as may be conferred onhim by or under this Act or any other written law.

… — A Traditional Authority, in his area of jurisdiction,shall—

(a) promote the welfare of the people;(b) inform and mobilize the people towards

implementation of development projects;(c) carry out the traditional functions of his office under

customary law in so far as the discharge of the functions isnot contrary to the Constitution or any written law and isnot repugnant to natural justice or morality;

(d) assist the Malawi Police Service and other lawenforcement agencies in the preservation of public peace,prevention and investigation of crime and apprehension ofoffenders;

(e) in consultation with his subordinates, ascertain andassist in codification of the customary laws applicable;

(f) uphold, promote, protect, preserve culture,language, tradition and values and maintain any culturalsite, works of art and literary works;

(g) perform traditional ceremonies and functions;(h) promote gender equality;(i) assist in the general administration of the district in

which his area of jurisdiction is situated and for thatpurpose, to carry out any functions under lawful directionsof the District Commissioner;

(j) assist and cooperate with Government and thedistrict council in the execution of policies;

(k) ensure sustainable use of natural resources andpreservation of the ecosystem for the benefit of all persons inMalawi;


Functions ofTraditionalAuthority

(l) respect the culture, customs and language of anyperson who resides within the community as long as theculture, custom and language is not contrary to theConstitution or any written law and is not repugnant tonatural justice or morality;

(m) hear and determine customary disputes; and(n) perform other functions as may be conferred on him

by or under this Act or any other written law.… — (1) In his area of jurisdiction, a Sub-Traditional

Authority shall perform the functions of the TraditionalAuthority.

(2) A Sub- Traditional Authority shall perform any functionsand duties as shall be delegated to him by the TraditionalAuthority to whom he is subordinate:

Provided that the functions and duties of the office of aTraditional Authority that are delegated shall not extend to anyfunction which under any law may not be exercised by a personother than a Traditional Authority.

(3) A Sub-Traditional Authority shall, in the performance ofthe functions, act in accordance with the general or specialdirections of the Traditional Authority to whom he issubordinate.

(4) In addition to performance of delegated functions undersubsection (1), a Sub-Traditional Authority shall—

(a) report any relevant matter in his area to theTraditional Authority;

(b) preside over appeals on customary cases fromGroup Village Heads; and

(c) oversee Group Village Heads and Village Heads inhis area of jurisdiction.… — A Group Village Head and a Village Head shall, as the

case may be,—(a) assist a Traditional Authority or Sub-Traditional

Authority by whom he is appointed in the performance ofhis functions;

(b) bring to the notice of a Traditional Authority or Sub-Traditional Authority any relevant matter in his group ofvillages or village;


Functions ofSub-TraditionalAuthority

Functions ofGroup VillageHead andVillage Head

(c) manage his group of villages or village; and(d) hear and determine customary disputes between

members of his group of villages or village.

5.1 Jurisdiction of traditional leaders in cities, municipalities or townshipssection 3 (5) prohibits chiefs from exercising jurisdiction within the city,

municipality or township without the written approval of an appropriate councilestablished under the Local Government (urban areas act). the commissionwas aware that this act was repealed by the Local Government act. section 6 ofthe Local Government act vests jurisdiction of areas within the district townshipto the Local authority designated under the act.

traditional leaders view this position negatively. they claim thatGovernment has limited their powers over land thereby occasioning someinjustice to them. for example, in cases where urban centres are situated neardistrict headquarters, or cities or towns, councils have extended to areas that weretraditionally under the jurisdiction of traditional leaders without consultingthem.38 as such, the affected traditional leaders fail to move or expand theirjurisdiction because boundaries were decided without taking into considerationfuture population increase on their land. traditional leaders therefore submit thatthey should still be recognized as traditional leaders in areas declared as cities,municipalities or townships.

the commission had recourse to section 25 of the Land act which providesthat all customary land is the lawful and undoubted property of the people ofmalawi and is vested in the president as trustee for the benefit of all malawians.further, the commission observed that section 26 of the Land act mandates theminister by way of special or general direction to authorize chiefs to use andallocate any customary land within the area of their jurisdiction. thus, traditionalleaders perform delegated authority in authorizing use and occupation ofcustomary land and are merely custodians of such land. furthermore, thecommission was aware that traditional leaders have misinterpreted their mandateto authorize use and occupation of customary land as provided for under section26 of the Land act as meaning the power to own customary land. thisresponsibility ceases upon declaration of customary land as public land forpurposes of establishment or expansion of cities, municipalities or townships byvirtue of section 32 of the town and country planning act as read with section27 of the Land act.39

comparative studies carried out by the commission show that in other


38t/a machinjiri area in Blantyre, t/a kalonga in salima and t/a kabunduli in nkhata-Bay.39section 32 (2) of the town and country planning act provides “no person or organization other than those

provided for in this act shall have any power or authority to grant permission for development or subdivisionof land within a declared area”; and section 27 of the Land act provides that the minister may declarecustomary land as public land where it is needed for a public purpose.

jurisdictions such as namibia, customary land is held on 99 years leasehold. anindividual or traditional leader does not have authority to sell land withoutinvolving the community. usually land committees are used to allocate land topeople in need upon payment of consideration. the money is later paid to thecouncil of the traditional authority. individuals including traditional leaders arewell aware of the legal provisions relating to how land is held. Legislationregulating land matters provide that all land including customary land is vested inthe state and that traditional leaders authorize use and occupation of customaryland on behalf of the state. as such, traditional leaders do not claim to owncustomary land. this provision is similar to the one we have in our law.

on the issue of traditional leaders exercising jurisdiction in cities,municipalities or towns, the commission established that traditional leaders, innamibia, cease to exercise jurisdiction over land which has been acquired asmunicipal land by Government.40 further, a declaration of customary land intomunicipal land by Government also entails payment of compensation to membersof a traditional authority occupying that land. in calculating compensation,Government takes into account structures, buildings or trees found on the land.therefore, the commission recommends that the status quo be maintained toavoid conflicts between councils and traditional leaders.

in arriving at this recommendation, the commission was aware of thetension between councils and traditional leaders arising from the provisionsdiscussed above which may have been fuelled by the manner in whichGovernment, without transparency, acquires customary land to become publicland. the commission thus recommends that Government should be transparentand must follow proper procedures when converting customary land into publicland. further, the commission recommends payment of compensation toindividuals for loss, damage or disturbance in accordance with section 28 (2) ofthe constitution which prohibits arbitrary deprivation of property and section 28of the Land act which provides for payment of compensation.

finally, the commission also recommends that the ministry of LocalGovernment should intensify civic education on the role of traditional leaders asregards customary land.

the commission thus recommends adoption of the following provision—… A traditional leader shall not exercise jurisdiction within

the area of a City, Municipality or Township.


40ibid.

Jurisdiction incity,municipalityor township

6.0 remoVaL from officesection 11 of the act empowers the president to remove a paramount chief,

senior chief, chief or sub-chief on grounds that—(a) the person has ceased to be entitled to office under customary law;(b) the person has lost confidence of the majority of the people; or(c) such removal is necessary in the interest of peace and good

government.the commission considered the provisions and concluded that it is

inappropriate that the president alone, should be empowered to remove atraditional leader in democratic malawi. additionally, the commission found thatthe grounds for removal of a traditional leader are too broad and hence susceptibleto abuse and manipulation.

comparative studies carried out by the commission reveal that in namibiaand zambia removal from a traditional leadership position is sanctioned bycustomary law. in namibia, a traditional leader is removed from his or herposition by members of his or her community and the role of the president issimply to recognize such removal by publication in the Gazette.

in zambia, a village headman may be removed from his position if the royalfamily is convinced that he is not running the affairs of the village in the rightmanner. However, a chief might be dealt with by the courts of law, just asanybody else, when he commits a criminal offence. in certain cases, a chief mightbe degazetted as a chief under section 4 of the chiefs act41 when he commits aserious criminal offence.

further, in view of the commission’s earlier recommendation to removeappointing powers from the president, the commission recommends that theremoval powers should lie with the royal family for traditional leaders since thepower to appoint entails the power to remove from office as well. the role of thepresident should only be with respect to withdrawal of recognition of suchtraditional leader once traditional authorities or royal family recommendsremoval. the withdrawal of recognition should take the form of degazetting thetraditional leader.

the commission observed that during consultations, most stakeholders weregenerally in agreement with the commission that removal of traditional leadersby the president would encourage the arbitrary use of powers and as such, thepresident’s role should be confined to the withdrawal of recognition of atraditional leader once his removal has been recommended.42

the commission, in discussing removal of traditional leaders, considered


41chiefs act of zambia.42there was however a minority view from participants in the northern region consultative workshop that

advocated the maintenance of the current role of the president.

the appropriateness of including the community as an authority to remove atraditional leader. the commission was of the view that the power could easilybe abused, as members of the community could end up removing a traditionalleader simply because they dislike him or her. thus, the commission concededthat the community should not be included in the process of the removal of atraditional leader in order to avoid abuse and politicization of the process.

further, the commission deliberated on the issue of grounds for removal ofa traditional leader. the commission considered making provision for a clearlystipulated procedure for removal of a traditional leader and provision of propergrounds and safeguards to ensure that the royal family could not remove atraditional leader due to mere or petty jealousy. the commission conceded thatcurrently the circumstances warranting removal of a traditional leader werecapable of being abused as such there was need to bring in objectivity.

the commission was also aware that in districts like mulanje, a traditionalleader could be suspended or removed from his position for offending theprevailing customary law in his area of jurisdiction. the commission also notedthat some of these customary law offences include cutting timber from agraveyard and encroaching into the graveyard for purposes of cultivation. thecommission therefore recommends that the law should clearly stipulate groundsthat could necessitate removal of a traditional leader and this should includebreaches of prevailing customary law.

to this end, the commission recommends adoption of the followingprovision—

… — An appointing authority may remove a traditionalleader from office, if the traditional leader—

(a) ceases to be entitled to hold office under customarylaw;

(b) is convicted of a crime without the option of a fineby a competent court of law;

(c) commits a serious breach of customary law;(d) is incapacitated; or(e) commits an offence under this Act whose penalty is

removal from office.… — (1) A person who resides within the area of jurisdiction

of a traditional leader or an appointing authority may initiate theprocess of removal of a traditional leader.

(2) Where a person specified under subsection (1) is satisfiedthat grounds for removal of the traditional leader from officehave arisen under this Act, he shall inform the district council inwriting, specifying the name, title of the traditional leader and


Grounds forremoval

Procedure forremoval

the grounds for removal.(3) The district council shall, upon receipt of the

communication under subsection (2)—(a) inform the appointing authority and the traditional

leader complained against; and(b) investigate the matter.

(4) Where the appointing authority is satisfied that groundsfor removal of a traditional leader have been satisfied under thisAct, the appointing authority may further investigate the matterand shall make a finding on the matter.

(5) When investigating the matter, the district council orappointing authority shall give the traditional leader underinvestigation an opportunity to be heard.

(6) Where the district council is investigating the matter, itshall make its findings and recommendations and inform theappointing authority.

(7) Where the appointing authority has made its decision onthe matter, it shall inform the traditional leader.

(8) Where the appointing authority decides to remove atraditional leader from office, the appointing authority shallinform the district council, of—

(a) the removal of a traditional leader;(b) the grounds for removal; and(c) the date on which the removal took effect.

(9) Where the district council is satisfied that the removal isin accordance with this Act, the district council shallcommunicate the removal, in writing, to the Minister.

(10) The Minister shall publish the removal of the traditionalleader in the Gazette specifying the following particulars—

(a) name;(b) official title;(c) traditional title, where applicable; and(d) date of removal of the traditional leader.

(11) The Minister shall also inform the President of theremoval, in writing.

(12) The President shall, upon receipt of a notice referred toin subsection (9), recognize the removal from office of the


traditional leader, in writing, and, where applicable, bywithdrawing the Certificate of Recognition.

(13) Where the President does not withdraw the Certificateof Recognition within three months of receiving the notice insubsection (10), the certificate shall be deemed to have beenwithdrawn.

7.0 emoLuments of traDitionaL LeaDerspositions of traditional leaders are not considered, by law, as employment.

as such, the positions are not regulated or governed by terms and conditions ofemployment. in any event, positions of traditional leadership are considered astraditional positions of honour for which no fees, wages or salary is paid.Government pays honoraria to persons holding positions of traditional leaders.Honoraria must be distinguished from a salary or a wage which is earnedperiodically from employment or engagement in a particular task. the paymentmade to traditional leaders by Government is in recognition of the position oftraditional leadership as a form of public office to which a gratuitous payment ismade, as distinguished from compensation for service.

section 16 provides that every paramount chief, senior chief, chief, sub-chief and chairman of a chiefs’ council shall be paid remuneration asdetermined by the president, from time to time. according to this section, thepurpose of the remuneration is to enable chiefs maintain a status commensuratewith their position and to carry out their functions properly.

the commission was of the view that the power given to the president todetermine remuneration of traditional leaders is inappropriate and the root causeof chieftaincy wrangles in malawi. in view of the commission’s earlierrecommendation to remove powers of the president in chieftaincy matters, it wasfound appropriate that the president should not determine remuneration oftraditional leaders. the commission thus recommends that the secretaryresponsible for Local Government should be empowered to recommend to thepresident remuneration of traditional leaders from time to time taking intoaccount the cost of living and the implications on the national Budget. thisposition is intended to take away the ad hoc exercise of discretion by thepresidency over remuneration of traditional leaders.

further, the commission learnt that there are disparities in the waytraditional leaders of the same level are treated by Government. for example,some traditional leaders are provided with necessary amenities like houses,offices and, in some cases, motor vehicles while other traditional leaders at thesame level are not. there is no doubt that these disparities have in some casesencouraged traditional leaders to engage in politics in pursuit of gains, thereby


undermining their independence.the commission was aware that, during consultations, stakeholders

observed that the remuneration that traditional leaders receive from Governmentis not enough to enable them maintain a chiefly status and suggested that theirremuneration should be adjusted upwards. stakeholders also suggested thathonoraria for traditional leaders should be considered alongside civil servants’salaries whenever there is a salary review. the commission considered this issueand made a finding that traditional leaders are not employees of Government toequate them with civil servants. therefore, legislating this matter in this mannerwould be inappropriate. However, the commission also observed that in view ofits recommendation for the establishment of a forum for traditional leaders, theforum shall offer an opportunity for traditional leaders to lobby Government onall matters affecting them, including remuneration.

as a way of addressing this issue, the commission considered whether itwould be necessary to provide for terms and conditions of service for traditionalleaders. the commission considered the possibility of prescribing a remunerationstructure for traditional leaders in the proposed law. However, it was noted thatsuch an approach would require the establishment of a service for the chieftaincywith the requirement of strict educational qualifications, which would work to thedetriment of most traditional leaders. in debating this matter further, thecommission warned itself of the possibility of creating the perception that theinstitution of chieftaincy is costly to Government, which may lead to Governmentconsidering terminating the provision of the honoraria.

During comparative studies to namibia and zambia, the commission learntin namibia, there are about 51 recognized traditional authorities who receive amonthly allowance of one thousand namibian Dollars (n$1,000) each, which isnot a salary. at the time of developing this report, this amount was equivalent toforty-three thousand kwacha (k43,000). the monthly allowance is only paid to14 recognized traditional leaders for each traditional authority since, in namibia;traditional leaders are treated equally in terms of status and functions. traditionalleaders who are not paid allowances by government are paid by the traditionalauthorities themselves.

traditional authorities in namibia have bank accounts maintained from timeimmemorial. sources of money include fines, service charges and annualhousehold fees. for example, where a man is found guilty of committing adultery,he is fined two heads of cattle, which are given to the husband of the woman withwhom he committed adultery and the woman pays one head of cattle to thetraditional authority fund.43 thus, in namibia traditional authorities havefinancial autonomy and do not completely depend on government for subsistence.

in zambia, chiefs receive a subsidy in form of an allowance fromGovernment. for example, senior chiefs and chiefs receive a monthly subsidy


43Hinz m.o. and another, (2010) customary Law ascertained, windhoek vol.1 p.188.

of four million and eight hundred thousand zambian kwacha (zk4,800,000) andfour million zambian kwacha (zk4,000,000) respectively. these amounts areequivalent to three hundred thousand kwacha (k300,000) and two hundred andfifty thousand kwacha (k250,000) respectively. Just like in malawi, chiefs haveno terms and conditions of service. However, the lower cadre chiefs such asvillage headmen or village headwomen do not receive any subsidy fromGovernment. they, however, receive gifts from their subjects as a token ofappreciation. chiefs are therefore encouraged, together with their subjects, to beself-reliant through hard work and creation of community trusts. all the subjectsmaintain community trusts through monthly contribution in the chiefdom.

in view of the practices in the saDc region, the commission resolved thatit would be appropriate to maintain the status quo rather than providing forsalaries of traditional leaders and recommends that determination of allowancesshould be left to subsidiary legislation.

the commission also observed that section 16 of the act does not envisagetraditional leaders lower than a sub-chief receiving remuneration. However, inpractice, Group Village Headmen and Village Headmen do receive remuneration.in recognition of this practice, the commission recommends amendment ofsection 16 to extend to these two cadres of traditional leaders.

the commission thus recommends adoption of the following provision onemoluments—

… — (1) A traditional leader shall receive emoluments fromGovernment in accordance with the Act.

(2) The emoluments paid to a traditional leader shall be anhonorarium payable monthly in arrears.

(3) The Secretary responsible for Local Government shall,on recommendation of the Council of Traditional Leadersdetermine emoluments of traditional leaders.

additionally, the commission considered it pertinent that communitiesshould be encouraged to assist traditional leaders. in this regard, communitiesmay take lessons from practices obtaining in religious groupings. members of thecongregation support their religious leaders in various ways, such as taking turnsin providing foodstuffs and other requirements. the commission thusrecommends that the law should contain a general provision encouragingmembers of the community to offer support to their traditional leaders.

the commission thus recommends adoption of the following provision—


Emoluments oftraditionalleaders

… — (1) A member of the community shall—(a) voluntarily support his traditional

leader; and(b) respect a traditional leader.

(2) The support under subsection (1) may be in form ofmaterial or financial support.

7.1 other Benefits for traditional Leaders

7.1.1 pension/Ex-gratia payment

section 16(2) provides that there may be paid to any paramount chief, chiefor sub-chief who may voluntarily have retired or who may have been removedfrom office, such pension as the president may determine. the commissionestablished that most, if not all, traditional leaders do not retire but work for life.the main cause appears to be fear of losing benefits that traditional leadersreceive from Government. in addition, section 16(2) does not make it mandatoryfor Government to pay out pension to a chief who retires from office.

in terms of terminal benefits that a retired traditional leader should beentitled to, the commission reiterates its recommendation to remove powers ofthe president in determining matters pertaining to traditional leaders andrecommends that the powers of the president to determine pension for traditionalleaders be deleted from section 16(2) of the act. consequently, the law shouldprovide for a mandatory pension, which should be determined by officers incharge of determining remuneration of traditional leaders. further, thecommission recommends that details of such benefits be provided for undersubsidiary legislation.

the commission learnt that, in namibia, a traditional leader may retire if heor she so wishes, but the perception of both namibians and zambians is similarto that of malawians, that a traditional leader does not retire as is perceived tohold the position for life.

the commission was aware that there is a general belief that traditionalleadership is for life. where a traditional leader is prevented by tradition fromretiring despite satisfying the above grounds, the commission recommends thatthe law should make provision allowing such traditional leader to choose acaretaker or an acting person, in consultation with the royal family. the lawshould provide further that, upon the death of the traditional leader, the caretakeror acting person should cease to act on behalf of the deceased traditional leader.the rationale being that this would allow the royal family to choose the rightfulheir. the commission was aware of instances where caretakers have claimed tohave been appointed by the deceased traditional leader as successor.


Duties ofmember ofcommunity

consequently, the commission recommends that a traditional leader shouldbe allowed to retire with benefits automatically accruing upon attaining the age ofseventy (70) years or where he or she has been certified unfit on medical groundsto perform the functions of the office.

the commission therefore recommends adoption of the followingprovision—

… — (1) A traditional leader may voluntarily retire from hisoffice where he—

(a) regardless of age, is certified on medical grounds asunfit to perform the functions of his office; or

(b) attains the age of seventy (70) years.(2) A traditional leader shall, where he retires in accordance

with subsection (1), be entitled to receive ex-gratia payment.(3) The Secretary responsible for Local Government shall

determine ex-gratia payments to traditional leaders which shallbe payable monthly until death of the traditional leader.

(4) A traditional leader shall, where he decides to voluntarilyretire from the traditional leadership position in accordance withsubsection (1), inform the appointing authority of his intention.

(5) The appointing authority shall, upon receipt of theinformation under subsection (4) appoint a regent in accordancewith section ….

7.1.2 Death Benefitsthe commission observed that the act does not make provision for death

benefits for traditional leaders. as such, a District commissioner uses hisdiscretion to determine what benefits are payable on death. the commissionfound this arrangement unsatisfactory and recommends adoption of subsidiarylegislation to spell out applicable death benefits.

related to death benefits is the issue of assistance during the funeral of atraditional leader. the commission was informed that in practice a Districtcommissioner provides firewood, flour and condolence money whenever atraditional leader dies. in other cases, Government officers have influenced thedecision of the District commissioner and, as a result, funerals of traditionalleaders at the same level have been handled differently. the commission learntthat in namibia, government pays ten thousand namibian Dollars (n$10,000)towards funeral arrangements for a traditional leader.

in zambia, government provides a standard coffin, food and governmentrepresentation at the funeral ceremony. However, the spouse of the deceased


Retirementand ex-gratiapayment

traditional leader is no longer entitled to reside in the official residence, ifgovernment built it. the rationale being that official residences are intended to bepermanent structures built together with a traditional court, and offices for thechief along with the houses of the chief’s messengers. the messengers are calledkapasos.

the commission recommends that, on the death of a paramount or seniorchief, the district council should provide food, firewood and k50,000 ascondolence money. when a traditional authority and sub-traditional authoritydies, the district council should provide food, firewood and k30,000 ascondolence money. the commission also recommends that Government shouldrevise these amounts from time to time, so as to maintain the value.

the commission also stressed the need to ensure that every traditional leaderis afforded a decent burial commensurate with seniority. the seniority of thetraditional leader should determine the type of coffin provided such that aparamount chief and a senior chief should be entitled to a casket whilst atraditional authority and a sub-traditional authority should be entitled to anexecutive coffin. in making this recommendation, the commission was aware thatin some tribes and religions such as ngonis and moslems respectively, they use aspecial type of coffin or burial material. in this regard, the commissionrecommends that, in such cases, Government should provide appropriately.

where a traditional leader has left behind a spouse who resides in aGovernment house, the law should provide that the spouse and children mayremain in the house for six (6) months but thereafter pave way for the newtraditional leader. where the house was furnished by Government for thedeceased traditional leader, furniture such as sofa set, beds and mattresses shouldbe treated as property belonging to the deceased traditional leader. Governmentshould provide new furniture to the successor traditional leader. the commissionrecommends further that the ministry of Local Government should intensify civiceducation on such matters as well as encourage traditional leaders to build theirown houses in order to ensure smooth implementation of these recommendations.

notwithstanding this, the commission observed that there is need forGovernment to build houses for traditional leaders progressively as well asprovide furniture such as a sofa set, beds and mattresses according to the seniorityof a traditional leader. Government should maintain the house so that it remainsin a habitable condition.

the commission recommends further that the spouse and children of thedeceased traditional leader should be paid a lump sum allowance equivalent to 12month honoraria as death gratuity.

7.1.3 Loans, advances and other Benefitsthe commission considered the issue of whether traditional leaders should


be granted loans and advances, as is the case with civil servants. it was the viewof the commission that the levels of honoraria that traditional leaders receivewould not allow proper servicing of loans. in addition, traditional leaders are notGovernment employees as such, and should not be entitled to benefits enjoyed bycivil servants in form of loans, advances and other benefits. further, thecommission considered that a move in this direction would defeat the purpose forwhich such allowances are given to traditional leaders. the commission thusrecommends maintaining the status quo.

the commission also discussed the issue of allowances payable totraditional leaders when discharging official duties. the commission observedthat allowances are payable to traditional leaders in order to allow them pay foraccommodation and meals. However, due to low levels of the allowances,traditional leaders find accommodation in places that compromise their safety,security and lower their dignity. in order to maintain standards commensuratewith a particular office of a traditional leader, the commission recommends theprovision of full board accommodation for traditional leaders when dischargingduties outside duty station and that the ministry of Local Government shallprescribe amounts payable for each night.

the commission established that in namibia, in addition to the allowancethat traditional leaders receive from government they are also entitled to otherbenefits ranging from offices and vehicles. each recognized traditional authorityis entitled to a vehicle, maintained by government and provided with a salarieddriver.

in zambia, traditional leaders are entitled to a car loan, medical cover and anofficial residence, courtesy of government. the commission learnt that traditionalleaders in zambia were given car loans in 2009, but deductions had not yet beencommenced for political expediency since traditional leaders’ salaries arenominal. Depending on seniority, traditional leaders are also provided with acertain number of kapasos. in addition, where a traditional leader is travelling outof his duty station due to sickness, he is entitled to government transport.

regarding health benefits of a traditional leader, the commission wasinformed that traditional leaders are entitled to government assistance in form ofmedical care at the first port of call, which is normally at district hospital level.they are also provided with referral to higher level of medical care such as privatehospitals locally and abroad at the expense of Government. in cases of referral tohospitals outside malawi, the ministry of Local Government provides an air ticketand allowances in form of daily subsistence allowance to the sick traditionalleader whereas the ministry of Health pays for the medical treatment of thetraditional leader.

the commission considered whether traditional leaders should be providedwith medical care through medical aid at the expense of Government. after alengthy discussion, the commission concluded that Government would not afford


to put every traditional leader on a medical aid scheme due to the large numbersof traditional leaders that the country has. thus, implementation would costGovernment large sums of money. as such, the commission recommends that thestatus quo should be maintained, but that the details of health benefits fortraditional leaders should be provided for in subsidiary legislation.8.0 staff of traDitionaL LeaDers

8.1 positions of tax clerk and messengersection 18 provides for the appointment of two categories of staff for chiefs:

a tax clerk and a messenger. the commission observed that since the advent ofdemocracy in malawi, men are no longer obliged to pay to Government hut taxwhich was collected by tax clerks at village level. the commission thereforerecommends deletion of any reference to tax clerks in the act.

the commission, however, established that traditional authorities still retainstaff under the style of “chief’s clerk” and “chief’s messenger” to help suchleaders in carrying out various duties. Both clerks and messengers are employeesof district councils recruited by the Local Government service commission. thecommission thus recommends that clerks and messengers should be provided forin the proposed legislation and that these should be Government employeesrecruited by the district council for deployment to traditional leaders entitledunder the law. the commission further recommends that the power to appoint,suspend or remove a person to or from the office of clerk or messenger and toexercise disciplinary control over the person should be exercised by theDisciplinary committee established under the district council and not the Districtcommissioner as stipulated under section 18 (2).

the commission thus recommends adoption of the following provisions—

…— A Paramount Chief, Traditional Authority or Sub-Traditional Authority shall, in the execution of his duties, beentitled to the services of a clerk and a messenger.

… — (1) A district council shall appoint, suspend or removea clerk or messenger and shall exercise disciplinary control overthe person so appointed under this Part.

(2) The district council shall facilitate the training of a clerkor messenger.

8.2 functions of clerks and messengerssection 19 of the act provides that a tax clerk shall assist the chief in

discharging the functions of his office and shall carry out such other duties inrelation to the collection of tax and other administrative matters as the Districtcommissioner may direct. the commission reiterated its decision to delete any


Clerk andmessenger

Appointmentof clerk andmessenger

reference to tax related functions.the commission noted that clerks perform clerical and administrative work

in the office of a traditional leader. the commission was of the view that ratherthan providing for the functions of a clerk in detail, the legislation should onlycontain a broad statement regarding those functions. the minister will have theresponsibility to administratively clarify the functions and duties of a clerk withthe aim of ensuring flexibility.

the commission therefore recommends the adoption of the followingprovision—

… — A clerk shall carry out clerical and administrativeduties assigned to him by a traditional leader and specified by aDistrict Commissioner.

section 20 (1) of theact provides that a chief’s messenger shall assist thechief whom he is appointed to serve in the performance of the functions of hisoffice. according to this provision, the messenger exercises all powers, rights,duties and protection for the time being conferred or imposed upon or afforded topolice officers below the rank of inspector by any written law. further, themessenger has power to arrest, without a warrant, on the directions of the Districtcommissioner or of the chief, any person upon reasonable suspicion that theperson has committed an offence in connection with a riot, affray or disorder. thecommission considered these functions too broad and inappropriate for amessenger who ideally should only perform messengerial duties, under thecurrent democratic dispensation and constitutional order.

the commission acknowledged that allowing the messenger to carry outfunctions of a police officer below the rank of inspector as inappropriate. thepolice service has trained and equipped personnel authorized under law to carryout specific duties and exercise certain powers such as those that relate to thepreservation of public peace. the commission concedes that currently,messengerial powers to arrest a person, without a warrant, upon reasonablesuspicion that the person has committed an offence in connection with riot, affrayor disorder are misplaced. the commission resolved that preservation of publicpeace should be left in the hands of the police service who are adequately trainedand equipped to discharge that mandate. However, the commission recommendsthat a District commissioner should have the power to administratively, stipulatethe duties of a chief’s messenger.

the commission established that clerks and messengers used to be providedwith uniforms by Government, which is not the case nowadays. this developmenthas led to some unscrupulous clerks or messengers impersonating traditionalleaders to strangers since there is no distinction between the traditional leader andthe clerk or messenger. to address this problem, the commission recommends


Duties ofclerk

that traditional leaders should be provided with identity cards in order todistinguish them from clerks and messengers. clerks and messengers working inoffices of traditional leaders should be provided with uniforms at the expense ofGovernment and an identity card describing their office. the commission furtherrecommends that messengers should undergo training prescribed by the Districtcommissioner.

the commission thus recommends that section 20 should be amended toread as follows—

… — A messenger shall carry out messengerial duties asmay be specified by a district council.

9.0 cHiefs anD DiscipLinethe act does not provide for any disciplinary mechanism for traditional

leaders who err. However, where a traditional leader commits a criminal offence,he is liable to prosecution and punishment by a court of law as an ordinary person.the absence of disciplinary mechanisms for traditional leaders, under the act, hascontributed to the perception by the the public of impunity and instilled intraditional leaders a feeling that they are beyond reproach. the commissionfurther observed that malawi, in contrast to other countries, does not haveinstitutions that manage and regulate affairs of traditional leaders. thecommission established that, in practice, whenever there is an issue involving atraditional leader, the ministry of Local Government constitutes an ad hoccommittee to look into the matter. such committees are constitutedadministratively. the commission was of the view that constituting an ad hoccommittee to deal with disciplinary issues concerning traditional leaders was apositive development.

in considering the issue of disciplinary mechanisms, the commission drewlessons from practices within the saDc region. in south africa, legislation thatdeals with traditional leadership provides for a code of conduct for traditionalleaders in form of a schedule to the statute.44 the code of conduct applies toevery traditional leader and traditional council. the commission furtherobserved that in namibia, each traditional community has its own set of rules fordisciplining traditional leaders and these rules stipulate offences as well aspenalties to be imposed on offenders.

in order to promote good behaviour among traditional leaders, thecommission recommends adoption of a code of conduct to spell out theresponsibilities of traditional leaders in a form of a schedule to the act asfollows—


Duties ofmessenger

44 according to section 27 (1) of the traditional Leadership act of 2003 of the republic of south africa

CODE OF CONDUCTA traditional leader shall—

(a) perform his functions in good faith, diligently, honestly and in atransparent manner;

(b) fulfil his role in an efficient manner;(c) not conduct himself in a disgraceful, improper or unbecoming

manner;(d) comply with any applicable legislation, policy and procedures;(e) act in the best interest of the people in the area of his

jurisdiction;(f) promote unity among traditional communities;(g) not embark on actions that would create division within or

among traditional communities;(h) promote nation building;(i) not refuse to provide any service to a person on political or

ideological grounds;(j) foster good relations with organs of State;(k) promote the principles of an open and democratic society;(l) receive gifts in a transparent manner; and(m) not permit his political opinions or allegiance to influence—

(i) the functions of his office as a traditional leader; or(ii) the people in his area of jurisdiction in respect of which he

was appointed and recognized, as the case may be.in order to strengthen the institution of chieftaincy further, the commission

considered establishing ad hoc Disciplinary committees to discipline erranttraditional leaders. consequently, the commission recommends establishment ofad hoc disciplinary committees under the style of the first, second, third andfourth Disciplinary committees. the commission opted for ad hoc committeesinstead of a permanent institution for cost effectiveness.

in terms of hierarchy, the commission recommends that the highestDisciplinary committee should be constituted at the national level to comprise thefollowing—

(a) the secretary responsible for Local Government as chairperson;(b) the solicitor General; and(c) one paramount chief.


the commission decided to include one paramount chief in the compositionof this committee to allow an accused paramount chief to be tried by his or herown peers. the commission reiterated its earlier recommendation to revert to thehistory of the country, which recognized only three paramount chiefs. Hence, itwould be difficult to achieve a higher number of paramount chiefs to sit in thiscommittee in future because those holding the position on a personal to holderbasis would phase out by operation of law. the commission further recommendsthat the law should not allow these officers to delegate their responsibility in thisregard. the duty of this committee shall be to investigate any allegation ofindiscipline or misconduct of a paramount chief as well as to mete outpunishment as specified by the proposed law.

the commission considered sentiments from the consultations to add atleast one Government official in respect of all the other Disciplinary committees.the commission therefore recommends that the second Disciplinary committeeshould be composed of two paramount chiefs, one traditional authority and theDistrict commissioner from another district who shall sit as secretary to thecommittee. the commission also recommends that the ministry of LocalGovernment should constitute this committee. the commission furtherrecommends that this committee shall have power to investigate allegations ofindiscipline or misconduct of any traditional authority or sub-traditionalauthority as well as to mete out any punishment specified under the proposed lawto regulate traditional leaders including recommending withholding of honoraria.the commission further recommends that appeals from this committee shouldlie to the higher committee.

the third Disciplinary committee in the hierarchy should be constituted bythe District commissioner to be composed of two traditional authorities, oneGroup Village Headman and a clerk of another traditional leader who shall act assecretary to the committee. this committee shall have the power to investigateallegations of indiscipline and misconduct by Group Village Headmen as well asmeting out punishment specified under the proposed law to regulate traditionalleaders including recommending the withholding of honoraria. appeals from thiscommittee shall lie to the committee constituted at the paramount chief level.

the lowest Disciplinary committee shall be constituted by a traditionalauthority to be composed of two Group Village Headmen, one Village Headmanand a clerk of another traditional leader who should act as secretary to thecommittee. the commission recommends that this committee shall have thepower to investigate allegations of indiscipline and misconduct by VillageHeadmen as well as to mete out punishment specified under the proposed lawincluding recommending the withdrawal of honoraria. the commission furtheremphasizes that this structural arrangement should not be construed as takingaway the constitutional right to commence proceedings in a court of law.

in view of the commission’s recommendation for establishment of anindependent institution for traditional leaders, the commission considered the


possibility of making appeals from the first Disciplinary committee lie to thecouncil of traditional Leaders. the commission discussed the advantages anddisadvantages of adopting this approach and concluded that it would not be properfor disciplinary matters involving paramount chiefs to be decided by the council.considering that the council is also composed of lower cadres of traditionalleaders such as traditional authorities. thus, the commission recommends thatappeals for disciplinary matters of all other traditional leaders except for thoseinvolving paramount chiefs shall lie to the council while those involvingparamount chiefs shall lie to the High court.

the commission thus recommends adoption of the following provisions—…—(1) There are hereby established four (4) ad hoc

Disciplinary Committees.(2) A Disciplinary Committee shall carry out its functions

fairly, objectively and impartially.(3) The Secretary responsible for Local Government shall

constitute the disciplinary committees under this Part.(4) The Secretary responsible for Local Government may

delegate the constitution of—(a) the Third Disciplinary Committee to a District

Commissioner; and(b) the Fourth Disciplinary Committee to a Traditional

Authority.(5) A Disciplinary Committee shall have jurisdiction to hear

the matters and mete out the penalties specified in the FourthSchedule

… — (1) The First Disciplinary Committee shall consist of—(a) the Secretary responsible for Local Government

who shall be the Chairperson;(b) the Solicitor General; and(c) one (1) Paramount Chief.

(2) A District Commissioner from another district shall beappointed secretary to the First Disciplinary Committee.

(3) Members of the First Disciplinary Committee undersubsection (1) shall not delegate their responsibility to any otherofficer.

…— The First Disciplinary Committee shall—(a) investigate any matter against a Paramount Chief;(b) conduct hearings regarding any matter involving a

Paramount Chief;(c) make determinations and, where applicable,

prescribe punishment specified under this Act; and(d) hear appeals from the Second Disciplinary

Committee.


Establishmentof DisciplinaryCommittees

Compositionof FirstDisciplinaryCommittee

Jurisdiction ofFirstDisciplinaryCommittee

… — (1) The Second Disciplinary Committee shall consistof—

(a) two (2) Paramount Chiefs; and(b) one (1) Traditional Authority from

another district.(2) A District Commissioner from another district shall be

appointed secretary to the Second Disciplinary Committee.…— The Second Disciplinary Committee shall—

(a) investigate any matter against a TraditionalAuthority or Sub-Traditional Authority;

(b) conduct hearings regarding any matter involving aTraditional Authority or Sub-Traditional Authority;

(c) make determinations and, where applicable,prescribe punishment specified under this Act; and

(d) hear appeals from the Third DisciplinaryCommittee.… — (1) The Third Disciplinary Committee shall consist

of—(a) two (2) Traditional Authorities; and(b) one (1) Group Village Head.

(2) A clerk of a Traditional Authority other than of aTraditional Authority under subsection (1) shall be secretary tothe Third Disciplinary Committee.

…— The Third Disciplinary Committee shall—(a) investigate any matter against a Group Village

Head;(b) conduct hearings regarding any matter involving a

Group Village Head;(c) make determinations and where applicable,

prescribe a punishment specified under this Act; and(d) hear appeals from the Fourth Disciplinary

Committee.… — (1) The Fourth Disciplinary Committee shall consist

of—(a) two (2) Group Village Heads; and(b) one (1) Village Head.

(2) A clerk of another Traditional Authority or Sub-Traditional Authority shall be appointed secretary to the FourthDisciplinary Committee.


Compositionof SecondDisciplinaryCommittee

Jurisdiction ofSecondDisciplinaryCommittee

Compositionof ThirdDisciplinaryCommittee

Jurisdiction ofThirdDisciplinaryCommittee

Compositionof FourthDisciplinaryCommittee

…— The Fourth Disciplinary Committee shall—(a) investigate any matter against a Village Head; (b) conduct hearings regarding any matter involving a

Village Head; and(c) make determinations and, where applicable, prescribe

punishment specified under this Act.…— In constituting a Disciplinary Committee under this

Part, the Secretary responsible for Local Government or a dulydelegated authority shall, where applicable, ensure that thecomposition of a Disciplinary Committee is gender balanced.

…— A traditional leader who is not satisfied with thedecision of the Disciplinary Committee that handled a matteragainst him may appeal to a higher Disciplinary Committee inaccordance with this Act.

… — (1) A Disciplinary Committee shall determine theprocedure for conducting business.

(2) In conducting its business, a Disciplinary Committeeshall observe the rules of natural justice.

10.0 offencessection 22 of the act provides for offences and penalties relating to persons

who hold themselves out, conspire, or attempt to undermine the authority of achief, obstruct, interfere with the lawful discharge of functions and willfullydisobey lawful instruction or direction of a chief. the provision penalizes acts thatare deemed to interfere with the exercise of powers of traditional leaders and doesnot necessarily cater for abuse of powers and conduct by traditional leaders.traditional leaders have misbehaved under the guise of exercise of their powersand have even pursued personal interests at the expense of interests ofcommunities they serve.

the commission thus recommends that the law should penalize certain actsor misbehaviour of traditional leaders and recommends adoption of the followingprovisions—

…— Subject to this Act or any other written law, atraditional leader is guilty of misconduct, who—

(a) creates a new village without following the procedure laidout under this Act;(b) conducts installation and elevation of a Village Head to

Group Village Head without following the procedure laid outunder this Act;

(c) illegally sells or acquires private or communal customaryland ;


Jurisdiction ofFourthDisciplinaryCommittee

Gendermaintreaming

Appeals

Procedure

Acts ofmisconduct

(d) refuses to comply with a determination lawfully made by competent authorities;(e) engages in sexual immorality;(f) engages in, aids or abets another person in property

grabbing;(g) prevents or discourages his subjects from participating in

development activities;(h) performs his duties negligently;(i) fails to perform duties lawfully assigned to him;(j) fails to obey instructions lawfully and properly given to

him by a person having authority to give such instructions ordisplays insubordination by word or conduct;(k) habitually takes intoxicating liquor or habit-forming

drugs to the extent that it adversely affects performance of duties;(l) makes use or fails to take reasonable care of public

property in his custody or under his charge or fails to take steps that are within his power to ensure that reasonable care is taken of any such property;(m) does, causes or permits to be done, or connives in any

act which is prejudicial to the administration, discipline or integrity of the institution of chieftaincy;(n) attempts to secure intervention from political authority

in relation to his position or conditions of appointment to chieftaincy;(o) is partisan; or(p) makes a false claim to Government.… — (1) The code of conduct contained in the … Schedule

shall apply to every traditional leader.(2) A violation of the code of conduct by a traditional leader

shall be misconduct punishable under this Act.…— A person who—

(a) holds himself out or purports to discharge any of thefunctions of the office of Paramount Chief, Senior Chief,Traditional Authority or Sub-Traditional Authority;

(b) conspires or interferes with the lawful discharge bya Paramount Chief, Senior Chief, Traditional Authority orSub-Traditional Authority of any of the functions of hisoffice; or

(c) obstructs or interferes with the lawful discharge bya Paramount Chief, Senior Chief, Traditional Authority orSub-Traditional Authority of any of the functions of hisoffice, shall be liable—

(i) for a contravention of paragraph (a) or (b),to a fine of K60,000 and to imprisonment for one (1) year; or

(ii) for a contravention of paragraph (c) to a fine of K15,000 and to imprisonment for three (3)

months.


Code ofconduct … Schedule

Generaloffences

11.0 penaLties for acts of misconDuctin addition to providing for acts of misconduct of traditional leaders, the

commission considered making provision for penalties. the commission foundit appropriate to provide penalties ranging from those that could be meted out inminor offences to serious ones. the commission thus recommends a hierarchy ofpenalties from the least severe to the most severe as follows—

(a) verbal warning;(b) written warning;(c) reduction of honoraria;(d) withholding of honoraria;(e) suspension; and(f) removal from office.

the commission observed that traditional leaders are supposedly peoplewith integrity and as such, where a Disciplinary committee finds them guilty ofmisconduct in minor offences they should be given a verbal or written warningdepending on the severity of the misconduct committed. if the traditional leaderrepeats the misconduct, then serious penalties should follow.

the commission considered that where the misconduct required reductionof honoraria, the reduction should be to a maximum of half of the amount ofhonoraria payable and the reduction period should not exceed six months.

where the penalty for misconduct requires withholding of honoraria, thecommission recommends that withholding of honoraria should be for a period ofthree months but that the period may be extended to six months where theDisciplinary committee finds it necessary to do so after conducting furtherinvestigation into the issue. the commission made this recommendation topromote uniformity in the manner of meting out the penalty of withholding ofhonoraria.

During consultations, some participants felt that it is unfair and painful topunish a traditional leader by withholding his honoraria for six months. thecommission, however, observed that, as a punishment, this was intended to besevere in order to influence behavior of traditional leaders for the sake of thecommunity as a whole. the commission therefore maintained its position on thismatter.

the commission also discussed the possibility of having the penalty ofdemotion in traditional leadership. the commission however observed that intraditional leadership only one person could hold a position hence a traditionalleader cannot be demoted to a lower position. the commission thus recognizedthat taking this route would create more problems.

regarding suspension as a penalty, the commission observed that this could


be done at two levels; a traditional leader could be suspended to pave way forinvestigations or prosecution for a criminal offence; and where the Disciplinarycommittee finds it necessary to suspend an errant traditional leader as apunishment on its own. the commission recommends that the period forsuspension pending investigation should be a maximum of six months or shouldlast as long as the prosecution of the criminal offence subsists. on the other hand,the commission recommends that suspension as a penalty should be without payfor a period not exceeding six months.

the commission recommends that a traditional leader who sells or snatchesprivate or communal customary land should be removed from office upon beingfound guilty. the commission observed that the constitution under section 28(2)prohibits arbitrary deprivation of property and that such deprivation compromisesthe enjoyment of livelihoods. the commission also considered that this issueinvolves power relations and that the practice has far-reaching consequences inthat land sold or snatched may not be recovered. the commission thus saw theneed to protect the vulnerable by providing for a stiff penalty.

participants at the consultative workshop held in Blantyre were in favour ofthe severe punishment. However, the commission was aware of the proposalmade by participants at the consultative workshop held in mzuzu that removalfrom office should not be provided as the first punishment for any offence due toits severe nature. the commission, however, opted to maintain its positionregarding this offence because of the severity of the offence and the far-reachingconsequence more especially where the land could not be recovered in caseswhere the title to land passes to the purchaser. therefore, the commissionrecommends that where a traditional leader is involved in expropriating landarbitrarily, the Disciplinary committee shall recommend to the royal familyremoval of the traditional leader.

regarding the offence of making a false claim, the commission recommendssuspension without pay as a penalty for a period not exceeding six months for thefirst instance and removal from office where a traditional leader commits thesame offence for the second time. the commission stressed that this offence isabout integrity of a traditional leader hence the proposal for a stiffer penalty. sucha penalty is aimed at reinforcing high integrity in traditional leaders so that theydo not engage in dishonesty and fraudulent behaviour.

the commission recommends the adoption of the following schedule toguide Disciplinary committees in meting out punishment where a traditionalleader is found guilty of any of the stipulated acts of misconduct to ensureuniformity—


SCHEDULE


No.1.

2.

3.

4

5.

OFFENCECreating a villagewithout theknowledge of adistrict council

Conductinginstallation orelevation of VillageHead to GroupVillage Headwithout theknowledge of adistrict councilSelling or illegallysnatching private orcommunalcustomary land

Refusing to complywith adeterminationlawfully made bysuperiors

Engaging in sexualimmorality

FirstInstanceWrittenwarning

Writtenwarning

Removalfrom officeand orderofrestitution

Verbalwarning

Suspensionwithoutpay for aperiod notexceedingsix (6)months

SecondInstanceSuspensionwithoutpay for aperiod notexceedingsix (6)monthsSuspensionwithoutpay for aperiod notexceedingsix (6)months

Writtenwarning

Removalfrom office

ThirdInstanceRemovalfrom office

Removalfrom office


FourthInstance

Removalfromoffice

PENALTIES


6.

7.

8..

9.

10

Engaging in, aidingor abetting anotherperson in propertygrabbing

Preventing ordiscouragingsubjects fromparticipating indevelopmentactivities

Performing dutiesnegligently

Failing to performduties properlyassigned

Failing to obeyinstructionslawfully andproperly given by aperson havingauthority to givesuch instruction ordisplayinginsubordination byword or conduct

Writtenwarning

Writtenwarning

Verbalwarning

Verbalwarning

Verbalwarning

Removalfrom officeand order ofrestitutionwhere theproperty isin the handsof theTraditionalLeaderWithholdingof honorariafor a periodnotexceedingsix (6)months

Writtenwarning

Writtenwarning

Writtenwarning

Removalfrom office




Removalfromoffice

Removalfromoffice

Removalfromoffice


Removalfrom office


Removalfrom office

Removalfrom office

Removalfromoffice

11.

12.

13.

14.

15.

Habitually takingintoxicating liquoror habit-formingdrugs to the extentthat it adverselyaffectsperformance ofdutiesMaking use orfailing to takereasonable care ofpublic property inhis custody orunder his charge orfailing to take suchsteps as are withinhis power to ensurethat reasonablecare is taken of anysuch propertyDoing or causing orpermitting to bedone or connivingin any act which isprejudicial to theadministration,discipline orintegrity of thechieftaincyAttempting tosecure politicalintervention inrelation to positionor conditions ofappointment to thechieftaincy

Being partisan

Writtenwarning

Verbalwarning

Writtenwarning

Writtenwarning

Suspensionwithout payfor a periodnotexceedingsix (6)months


Writtenwarning



Removalfrom office

12.0 wHetHer or not a criminaL conViction sHouLDeXpire

the commission had a lengthy discussion on this issue. firstly, thecommission considered whether or not a criminal conviction should bar atraditional leader from assuming or resuming office. secondly, the commissionconsidered whether or not a convicted person should be barred temporarily orpermanently. thirdly, the commission debated whether such barring should applyto all offences or should be confined to very serious offences. two viewsemerged.

the first view was that a criminal conviction should expire after a stipulatedperiod, as is the case with eligibility criteria for the presidency and members ofparliament under the constitution. section 80 (7) (c) of the constitution providesthat a person shall not be eligible for nomination as a candidate for election aspresident or first Vice-president or for appointment as first Vice-president orsecond Vice-president if that person has, within the last seven years, beenconvicted by a competent court of a crime involving dishonesty or moralturpitude. the constitution provides for the same requirement for nomination orelection of a person as a member of parliament.45

proponents of this view argued that since the office of the president and thatof a member of parliament are equally prestigious and important offices and thelaw is permissive regarding such positions once the criminal conviction is spent,the proposed law should likewise allow a person to assume or resume a traditionalleadership position where the criminal conviction is spent. it was furthersuggested that criminal convictions which should bar a traditional leader forseven years from assuming his position should be limited to those involvingserious offences such as crimes involving dishonesty or moral turpitude and thoseoffences which attract a custodial sentence without an option of a fine. therationale being that even for traditional leadership, the law should provide forreformation of the person.

the second view was that a criminal conviction involving a traditional leader


45section 51 (2) (c) of the act provides that a person shall not be qualified to be nominated or elected as amember of parliament who has, within the last seven years, been convicted by a competent court of a crimeinvolving dishonesty or moral turpitude.

16. Making a falseclaim toGovernment


Removalfrom office

should not expire, since traditional leaders are guardians of culture and customand they should be people of high integrity. it was argued that a traditional leaderwho is convicted of an offence may not command respect from his subjectsconsidering that traditional leaders also perform quasi-judicial functions. it wasfurther argued that it is wrong to compare traditional leaders with the presidencyor members of parliament since persons in these offices are elected for a term andmay be removed at the next ballot while a chieftaincy position is for life.

the commission considered both views and concluded that conviction of atraditional leader should bar him or her from assuming or resuming office sinceallowing such a traditional leader to assume or resume office would compromisethe integrity and trust associated with the institution of chieftaincy.

comparative studies carried out by the commission show that in zambia,once convicted of a serious criminal offence, a chief would be degazetted undersection 4 of the chiefs act. in namibia, a convicted traditional leader cannotresume office. the selection process of a person to be appointed a traditionalleader focuses more on behaviour and character as such once a person isconvicted, he or she would not qualify to be a traditional leader.

the commission thus recommends that only convictions from seriousoffences should bar or prevent a person from assuming or resuming a traditionalleadership position. further, the commission defined “serious offence” as anoffence punishable with a custodial sentence without an option of a fine and anyoffence involving dishonesty and moral turpitude.

the commission thus recommends adoption of the following provision oncriminal conviction—

…— A person shall not assume or resume a traditionalleadership position if he is convicted by a competent court of anoffence—

(a) punishable with a custodial sentence without an option of afine; or

(b) involving dishonesty or moral turpitude.

13.0 institutionaL framework for traDitionaL LeaDers13.1 introduction of a council for chiefssection 13 of the act provides for a chief’s council. a chief’s council,

envisaged under this section, is appointed by the president to perform functionsof a chief where the president removes a person from the office of chief and is ofthe opinion that no other person is suitable for appointment to such office. thecommission noted that the act does not provide for an independent institutionmeant to regulate and manage affairs of traditional leaders under this section.


Effect ofcriminalconviction

However, in practice traditional leaders and the general public have wronglyassumed that the provision is intended to create an independent institution tomanage and regulate affairs of traditional leaders. thus, the commissionconsidered it as a matter for law review.

the commission observed that stakeholders at all the three regionalconsultative workshops advocated for the establishment of a chiefs council toregulate and manage affairs of traditional leaders as is the case in south africa,Botswana, zambia, Ghana and namibia. such institutions in these countries aretermed House of traditional Leaders or House of chiefs or council of traditionalLeaders. the institutions perform advisory functions to parliament on matters ofcustomary law as well as manage and regulate matters concerning traditionalleaders.

in south africa, the national House of traditional Leaders comments on anyparliamentary Bill pertaining to customary law or customs of traditionalcommunities referred to it by parliament, before it is passed.46 in addition, LocalHouses of traditional Leaders in south africa47 advise district municipalities ormetropolitan municipalities on matters pertaining to customary law, customs,traditional leadership and traditional communities, among others.

in Ghana, the national House of chiefs advises people or authorities onmatters related to or affecting chieftaincy. it also undertakes the progressive study,interpretation and codification of customary law with a view to evolving a unifiedsystem of customary law, and compiling the customary laws and lines ofsuccession applicable to each stool or skin.48 further, the national House ofchiefs undertakes an evaluation of traditional customs and usage with a view toeliminating custom and usage that is outmoded and socially harmful amongothers.

the commission explored the possibility of making provision for anindependent institution responsible for managing and regulating mattersconcerning traditional leaders. the commission discussed the challenges oftaking this route such as the potential for political manipulation and the fact thattraditional leaders have become too political themselves. the other challenge thatthe commission perceived was the reluctance of Government to allowestablishment of new institutions as it implements austerity national budgets.

notwithstanding the challenges, the commission recognized the importanceof having a forum for traditional leaders where issues of concern affectingchieftaincy would be debated. the commission learnt that in namibia, thecouncil of traditional Leaders plays an advisory role to the president on mattersconcerning communal land and chieftaincy. similarly, the commission learnt that


46section 18 (1) of the traditional Leadership act of 2003 of the republic of south africa.47ibid. section 17 (3) (i).48in the case of Ghana, a stool or skin is a throne upon which every chief sits on during special functions. thus,

according to the interpretation section, section 76 of the chieftaincy act of Ghana, a “stool” is defined asincluding a skin.

the House of chiefs in zambia acts as an advisory body to the Government ontraditional, customary and any other matter referred to it by the president. thecommission also observed that these institutions are closer to the grassroots andwell placed to deal with challenges facing the grassroots.

the commission thus recommends the establishment of a body to regulateand manage affairs of traditional leaders in the proposed legislation.

13.2 nameconsequently, the next task for the commission was to determine the name

of the body. first, the commission considered whether the proposed body shouldbe termed “House of chiefs” or “council of traditional Leaders” as they aretermed in zambia and namibia respectively. the commission acknowledged thatthe term ‘chiefs council’ is already familiar to traditional leaders and the generalpublic, though with a different mandate. the commission however found thename House of chiefs problematic as it connotes legislative functions for theHouse because, in some countries, legislative bodies are termed as such. in linewith the recommendation to change the title of the act to traditional Leaders act,the commission recommends that the body should be termed “the council oftraditional Leaders”.

13.3 functions and operationsHaving resolved the two issues above, the commission then proceeded to

deal with other issues relating to the operations of the proposed council. first,was the issue of functions to be performed by the council, the commissionemphasized that the duties to be assigned to the proposed council should beapolitical and purely customary in nature.

the commission was aware that in other jurisdictions such an institutionperforms an advisory role to the Government. as such, the commission, afterweighing the advantages of having the council as an advisory body to thepresident on traditional and customary matters, recommends accordingly. in thisregard, the commission recommends that the council should be empowered toconsider and make recommendations on any proposed law dealing with, ortouching on, custom or tradition. additionally, the body should be empowered toreceive submissions from various stakeholders, including Government, for theproper fulfillment of its functions.

the commission also recommends that the council should be empowered toresolve chieftaincy disputes that have failed to be resolved under the normaldispute resolution mechanism. the commission, however, noted that the law doesnot provide for an ordinary mechanism through which chieftaincy disputes couldbe resolved before being referred to the council. in practice, chieftaincy disputesare referred to the High court for resolution before attempts to resolve suchdisputes within the structure of the traditional leadership are done. the


commission considered that the proposed law should provide for a mechanismwhere chieftaincy wrangles could first be resolved within the informal justicesystem prevailing in the traditional leadership system and appeals should lie to thecouncil. this arrangement would ensure screening so that the council deals withonly bona fide cases.

additionally, the commission recommends that the council shouldformulate policies for the proper functioning of the institution of traditionalleadership and make recommendations to the minister on matters that relate tocustomary law and practice. this is on the understanding that the council, as arepresentative body of all traditional leaders in the country, shall be expected torepresent generally the views of traditional leaders on matters of custom andtradition in a bid to promote and safeguard cultural and traditional values.

for the smooth operation of the body, the commission recommends that thesecretariat of the council should be based within the ministry responsible forLocal Government and that the Director of chiefs administration should bedesignated the secretary to the council along such other officers as are requiredfor its proper performance. the commission further recommends that thesecretariat should have the responsibility to coordinate all activities of the bodyand should ensure that its resolutions and determinations are communicated to theappropriate authorities. the secretariat shall also assist the council to formulateits agenda for meetings.

furthermore, the commission recommends that at the first meeting of thecouncil the members should elect the chairperson and Vice-chairperson fromtheir number and that the council should ensure representation of both genders inthe leadership positions, where possible. the chairperson should have theresponsibility to preside over the meetings of the council and the Vice-chairperson shall carry out this mandate in his or her absence.

13.4 compositionthe commission considered the composition of the council in view of the

fact that the council shall be established at national level. the commissionobserved that in order for the council to discharge its mandate of regulating andmanaging affairs of traditional leaders effectively, it must be as inclusive aspossible. in dealing with this issue the commission considered first whererepresentatives should come from and secondly from which cadre of traditionalleadership.

in terms of which district should have representatives in the council, thecommission observed that the composition of the council should reflect thediverse cultures and traditions prevailing in the country and this could only beachieved if all the twenty-eight districts are represented in the council. thus, thecommission recommends that all twenty-eight districts should haverepresentation in the council. the proposed composition would ensure a diverseculture and tradition, that would greatly enrich the deliberations of the council.


with respect to which cadres of traditional leadership should be representedin the council, the commission noted that the council would perform its mandateefficiently if it includes all cadres of traditional leadership. However, afterconsidering cost implications of such arrangement, the commission found itinappropriate that all cadres of traditional leadership should be represented in thecouncil.the commission therefore opted for limited representation to ensure thattraditional leaders effectively represent views of their constituents. as such, thecommission recommends that traditional leaders from the rank of traditionalauthority and above should have a seat in the council.

the commission recommends that the membership of the council shallconsist of all paramount chiefs and other twenty-eight traditional leaders at therank of a traditional authority. in respect of the twenty-eight traditional leaders,the commission considered that each of the twenty-eight districts shoulddesignate one traditional authority to represent it as a member of the council.

in terms of procedure for appointment and qualification, the commissionrecommends that traditional leaders in the districts above the rank of the sub-traditional authority should choose from their number, one member fordesignation into the council and, where applicable, such member should have theendorsement of three other traditional leaders from the rank of sub-traditionalauthority to be nominated for an election for appointment as a member of thecouncil. the commission further recommends that a member should also be ableto read and write in english and command respect and trust among othertraditional leaders in the district.

the commission discussed the issue of the disqualification of members frommembership of the council at length. the commission recommends that theproposed legislation should provide for circumstances under which a membershould not be qualified for appointment into the council. the commissionobserved that a traditional leader would not be qualified to be nominated orelected as a member of the council if any of the following conditions apply,where he—

(a) ceases to be a traditional leader;(b) ceases to be a malawian citizen;(c) is appointed or elected to a public office;(d) is directly involved in partisan politics; and(e) owes allegiance to a foreign country.

thus, the commission recommends that the proposed law should provide forfactors for disqualification of members of the council in order for the council tocomprise members of high calibre and integrity to ensure its independence.

in order to ensure independence of the council, the commission found itappropriate to consider making provision for an oath of office for members of thecouncil. considering that the council shall be the highest office mandated to deal


with traditional leadership matters at national level, members must pledgecommitment to discharge the functions entrusted upon the council with therequired seriousness and dedication. Hence, the commission recommends thatthe proposed legislation should provide for an oath of office to which everymember of the council must ascribe, before taking office. the commissionrecommends that a registrar of the High court should administer the oath.

13.5 tenurethe commission observed that in view of its earlier recommendation that

each district should elect one representative to the council, some able traditionalleaders would not be able to become members of the council. tenure of officecould be another avenue that may be used to ensure that many traditional leadersfind their way into the council as members. after considerable deliberation on theissue, the commission concluded that tenure of office should not be unnecessarilylong and found the period of three years appropriate. thus, it recommends that amember of the council should hold office for a period of three years with apossibility of re-election for a further period of three years. However, thecommission emphasized that after serving a period of six years, a member willno longer be eligible for further appointment except in those districts with limitedcandidates.

the issue of vacation of office of a member of the council generated lengthydebate. the commission explored possibilities of whether traditional leaders inthe district should have the power to recall a member from the council. thecommission, however, conceded that such power could be abused. thecommission therefore recommends that the power to recall a member should belimited to those circumstances which would have caused such member to bedisqualified for election or appointment.

13.6 meetingthe commission observed that in order for the council to discharge its

mandate effectively, it must be accorded a reasonable number of meetings withina year and such meetings should be held for a number of days to allow for fruitfuldeliberations. the commission discussed this issue at length and recommendsthat the council should meet at least three times annually for five days and that,where necessary, the council may call for one extraordinary meeting in a year.Government should meet all the costs relating to the holding of such meetings.similarly, the commission considered it proper that members of the councilshould be paid such allowances from Government as may be determined byofficers responsible for determining emoluments of traditional leaders.

considering that the council shall consist of traditional leaders from variousdistricts, the commission stresses the need for adequate representation oftraditional leaders at each meeting. as such, the commission recommends thatthe quorum of the council at each meeting should be half of members of the


council. However, the commission decided to leave the issue of procedure forconducting business to the council itself.

in terms of formulating an agenda for the meeting, the commissionrecommends that the council shall formulate its own agenda in consultation withthe secretariat of the council. the council shall also ensure that minutes of eachmeeting of the council and committee of the council are recorded and kept.

13.7 committees of the councilthe commission noted that the mandate of the council requires provision

for establishment of committees by the council to deal with specific issues. thus,the commission recommends that the council may constitute a committee toperform such functions and powers as the council may determine, wherenecessary.

the commission thus recommends adoption of the following provisions toprovide for the establishment and constitution of the council—

PART …__COUNCIL OF TRADITIONAL LEADERS… — (1) There is hereby established a Council to be known

as the Council of Traditional Leaders (in this Act, otherwisereferred to as the “Council”).

(2) The Council shall be independent and shall have itssecretariat at the Ministry responsible for Local Government.

… — (1) The powers and functions of the Council shall beto—

(a) promote and safeguard the welfare of traditionalleaders;

(b) present the views of traditional leaders on matters ofcustom and tradition generally;

(c) formulate policies for the proper functioning oftraditional leadership;

(d) consider and make recommendations on anyproposed legislation dealing with, or touching on, traditionor custom;

(e) make recommendations to the Minister generally onmatters that relate to customary law and practice; and

(f) exercise and perform such other powers andfunctions and deal with such matters relating to custom ortradition as the Minister may from time to time direct.(2) The Council shall be an advisory body to the

Government on traditional and customary law matters.… — The Council shall consist of the following members—

(a) all Paramount Chiefs as permanent members; and


Establishmentof Council

Powers andfunctions ofCouncil

Composition ofCouncil

(b) one (1) traditional leader from each district of therank of a Traditional Authority.… — (1) Traditional leaders in a district, from the position

of Sub- Traditional Authority and above shall nominate one (1)representative for appointment as a member of the Council:

Provided that a Traditional Authority putting his candidacyforward for election shall require the endorsement of three (3)other Traditional Authorities from the rank of Sub-TraditionalAuthority and above.

(2) The designation of a representative in terms of subsection(1) shall be made to the Minister, in writing, through the districtcouncil.

(3) The Minister shall, subject to section …, appoint thepersons nominated at district level and Paramount Chiefs asmembers of the Council with effect from a date determined bythe Minister.

(4) The Minister shall, by notice published in the Gazette—(a) list the names of persons who have been appointed

as members of the Council;(b) indicate the district of origin of appointees; and(c) specify the date of appointment.

… — (1) A traditional leader, other than a Paramount Chief,shall qualify for appointment as a member of the Council, if he—

(a) is a Traditional Authority;(b) commands respect and trust among fellow

traditional leaders in the district;(c) is endorsed by at least three (3) traditional leaders in

the district, where applicable; and(d) is able to read and write English.

(2) A traditional leader shall not qualify for appointment asa member of the Council if he—

(a) ceases to be a traditional leader;(b) ceases to be a Malawian citizen;(c) is appointed or elected to a public office;(d) is partisan; or(e) owes allegiance to a foreign country.


Procedure forappointmentof members

Eligibility forappointmentof members

… — (1) The Council shall elect a chairperson and vicechairperson at the first meeting of the Council and ascendancy tothe positions shall be on competitive basis.

(2) The chairperson and vice chairperson shall hold officeuntil the expiry of their term of office.

(3) The chairperson or vice chairperson may be removedfrom office by the Council on a majority vote of two-thirds ofmembers present on the following grounds—

(a) misconduct;(b) incompetence; or(c) any other good cause.

…— A member of the Council, other than a ParamountChief,—

(a) shall hold office for a period of three (3) years fromthe date of appointment; and

(b) may, where applicable, serve in the Council for amaximum of two (2) consecutive terms.… — Before a traditional leader elected to be a member of

the Council takes office, he shall take the following oath, whichshall be administered by a Registrar of the High Court—

“I, ……, do solemnly, sincerely and truly swear that I shallbe faithful and bear true allegiance to the Council, I shallperform and discharge functions of the Council to the best ofmy ability, I shall not be subject to political manipulation orinterference of any kind, and I shall uphold, promote andrespect customary law prevailing in Malawi in accordancewith the Constitution and laws of Malawi. So help me God.”… — (1) A vacancy in the office of a member of the Council

shall occur, if—(a) the member dies;(b) the member resigns by giving one (1) month notice in

writing to the Minister;(c) the member ceases to be a traditional leader;(d) the authority to act as a representative of the district is

withdrawn due to circumstances which would have caused him tobe disqualified for appointment;

(e) the member is adjudged bankrupt;(f) the member is sentenced to any term of imprisonment

without an option of a fine;


Chairpersonand vicechairperson ofCouncil

Tenure ofoffice

Oath of office

Vacation ofoffice

(g) member fails, without the permission of thechairperson or the vice chairperson, to attend three (3)successive meetings of the Council of which he has hadnotice;

(h) member becomes incapacitated by reason ofphysical or mental disability; and

(i) member is guilty of conduct which renders hiscontinued membership of the Council inappropriate.(2) In the event of a vacancy in the office of the chairperson,

the vice chairperson shall ascend to the office of chairperson forthe remainder of the term.

… — (1) The Council shall hold three (3) meetings everyyear for five (5) days at a place and time determined by theSecretariat.

(2) The Council may call for one (1) extra-ordinary meetingeach year for a maximum of three (3) days.

(3) The quorum of the meeting of the Council shall be half itsmembership.

(4) The chairperson shall convene and preside over themeetings of the Council.

(5) In the absence of the chairperson, the vice chairpersonshall preside over meetings of the Council.

(6) In the absence of both the chairperson and vicechairperson, the membership of the Council shall elect one oftheir member present to preside over the meeting.

(7) At a meeting of the Council—(a) a matter for the decision of the Council shall be

decided by a majority vote of members present and voting;or

(b) the chairperson, in the event of equality of votes,shall have a deliberative vote in addition to a casting vote.(8) Where a member of the Council is unable to attend a

meeting of the Council, the member shall not delegate theattendance to any other person.

(9) The Minister shall officially open the first meeting of theCouncil following a new term of office.

(10) The Council shall formulate its own agenda inconsultation with the secretariat.


Meetings ofCouncil

(11) Government shall meet all the costs relating to theholding of meetings of the Council.

… — Members of the Council shall be paid allowances orother benefits as may be determined by the Minister.

… — The Council may determine the procedure for itsmeetings and proceedings.

… — (1) The Council may establish a number of committeesas it deems necessary or expedient to perform its functions andexercise such powers as may be determined by the Council.

(2) A committee established under this section shall elect achairperson and a vice chairperson from among its members.

(3) A member of a committee shall hold office for a periodspecified in the letter of appointment and is eligible forreappointment once.

(4) A member of a committee may—(a) resign by giving notice to the chairperson of the

Council; or(b) be removed by revocation of appointment by the

Council upon giving good and justifiable reasons.(5) A committee shall hold its meetings at a place and time

determined by the chairperson of the committee.(6) The Council shall determine the procedure of conducting

business for its committees.(7) A committee may invite any person to attend its meetings

but the person shall not be entitled to vote at the meeting.(8) A person invited to attend a meeting under this section

may be paid an allowance as the Minister may determine.… — The Council shall keep minutes of proceedings of every

meeting of a committee of the Council.… — (1) The Secretariat of the Council shall be based within

the Ministry responsible for Local Government.(2) The Minister shall designate the secretary to the Council

and such other officers as are required for the properperformance of the Council’s functions.

… — (1) The Secretariat shall coordinate all activities of theCouncil.


Allowance andother benefits

Procedure

Committees

Minutes

Secretariatand other staff

Functions ofSecretariat

(2) The Secretariat shall ensure that all decisions orresolutions of the Council are directed to the appropriateauthorities for implementation.

… — A vacancy in the Council shall be filled within sixty(60) days:

Provided that if the remaining period is less than twelve (12)months, the vacancy may not be filled until the expiry of theperiod.

14.0 status of BLock LeaDersthe commission established that block leaders exercise leadership in cities,

municipalities and town locations or townships, a development that traditionalleaders were not comfortable with. section 3(5) of the act prohibits traditionalleaders from exercising jurisdiction within the city, municipality or townshipwithout the written approval of the appropriate council. section 6 of the LocalGovernment act vests jurisdiction of areas within a district or township to thecouncil designated under the act.

in view of the position of law, the commission considered the status of blockleaders critically. it observed that local leaders in urban areas go by a variety ofnames: “town chiefs”, “captains”, “kapitao”, “block leaders”, “block heads”,“local leaders”, “group village headmen” or “village headmen”. Block leaders orlocal leaders are terms used by Government staff to refer to people who are calledtraditional leaders especially if they reside in formally designated cities or towns.though the term “block leader” tends to indicate that the positions are not part ofthe traditional chieftaincy structure under the chiefs act, there are some blockleaders who are related by blood to recognized traditional leaders. for instance,in the municipality of kasungu, there are “block heads” who were elected bycommunities on instruction of the traditional authority and are answerable to thehereditary Group Village Headman.

the commission noted that the profile of block leaders is normally higher asthey are consistently chosen for having certain qualities. they are reportedlyhardworking, respectable and of good character in their respective communities.mostly, they are persons who have lived at the place for a long time. peoplechosen as block leaders also appear to be among the local economic elite. forinstance, they are retired civil servants, leaders and civil society leaders orbusinessmen.

the commission further noted that block leaders are a hybrid of localgovernance, found within urban and peri-urban areas throughout malawi. theyare sustained by a specific group of individuals to fill a local governance vacuumand to address problems arising from rapid and unplanned urbanization. they


Filling ofvacancy

perform a variety of functions which can be grouped in six different categories:cultural affairs; general administration and management of communities;oversight of issues related to land and property; resolving disputes; involvementin politics; and promoting economic and social development.

while appreciating the role played by block leaders, the commissionconcluded that they are not traditional leaders and therefore cannot be providedfor under the proposed legislation.

15.0 scHeDuLe to tHe cHiefs actthe schedule to the chiefs act provides for areas of jurisdiction of

chieftaincies such as paramount chiefs, chiefs and sub-chiefs. areas ofjurisdiction are divided into sections and sub-sections. for example, nsanjeDistrict in the southern region has seven sections for chiefs mlolo, tengani,chimombo, ndamera, nyachikadza, malemia and ngabu; and two sub-sectionsfor sub-chiefs mbenje and makoko. as for chikhwawa District, there isparamount chief Lundu; seven sections for the following chiefs presented inorder of numbering: ngabu, chapananga, makwira, kasisi, katunga, masseahand ngowe. as for sub-chiefs, chikhwawa District has two, namely, masacheand ndakwera. the schedule was last amended in the year 2000 under Generalnotice 44 and since then, there have been numerous appointments to varioustraditional leadership positions countrywide including to the position of seniorchief. thus, traditional leaders holding the position of senior chief are notincluded in the schedule.

the commission thus noted that the schedule to the act is not up to date inthat it does not reflect some new positions in traditional leadership. thecommission recommends that the ministry responsible for Local Governmentshould update the schedule to reflect realities on the ground.

16.0 suBsiDiary LeGisLation: cHiefs (staffs)(emoLuments, terms anD conDitions of serVice)ruLes

section 24 (1) of the act provides that emoluments and conditions of serviceof tax clerks and chief’s messengers shall be prescribed by the minister. further,according to section 24 (2), the minister may, from time to time, make rulesprescribing the emoluments and terms and conditions of service of tax clerks andchief’s messengers. the commission observed that the minister last promulgatedrules providing for the chief’s staff emoluments, terms and conditions in 1968. asfor the position of tax clerk, the commission earlier recommends deletion of thatany reference to tax clerk from the legislation based on obsolescence.


However, the commission recommends that traditional leaders should beentitled to services of a clerk and a messenger and further, that the district councilconcerned should determine duties of a clerk and a messenger. in view of thecommission’s recommendations, the minister shall no longer be involved inmaking rules prescribing emoluments and terms and conditions of clerks andmessengers and thus recommends removal of powers of the minister in thisregard. consequently, the commission recommends repeal of the subsidiarylegislation which was promulgated by the minister under section 24 of the act.

17.0 enGenDerinG traDitionaL LeaDersHip“Gender” refers to “the social differences and relations between men and

women which are learned, [which] vary widely among societies and cultures andchange over time”49. “Gender equality” on the other hand entails the concept that“both men and women are free to develop their personal abilities and makechoices without limitations set by stereotypes, rigid gender roles andprejudices”.50 thus, gender equality does not mean “women and men have tobecome the same”51 although inequalities between men and women is generallytilted in favour of men.52 “Gender equality” therefore aims at addressing thisinequality in power relations between men and women.

the constitution53 prohibits “discrimination of persons in any form” and “allpersons are under any law, guaranteed equal and effective protection againstdiscrimination” on several grounds, including sex. the constitution alsoprovides, as a principle of national policy, an obligation on the state to promotethe welfare and development of the people of malawi by progressively adoptingand implementing policies and legislation aimed at achieving the principle ofgender equality.54 further, section 24 of the constitution specifically provides forrights of women. according to section 24 (1), “[w]omen have the right to full andequal protection by the law and have the right not to be discriminated against onthe basis of their gender or marital status […]”.

the Gender equality act has now provided a statutory definition of sexdiscrimination. the Gender equality act prohibits acts of sex discriminationthrough:

(a) treating another person less favourably than he or she would treat aperson of his or her own sex; or


49unesco, 2000, Gender equality and equity: a summary review of unesco’s accomplishments since thefourth world conference on women, p.6.

50ibid. p.5.51ibid.52according to the report of the Law commission on the Development of the Gender equality act, p.11.53section 20 of the constitution.54section 13 (a).

(b) applying to another person an exclusion, distinction or restrictionwhich applies or would apply equally to both sexes, with the effect orpurpose of impairing or nullifying the recognition, enjoyment or exercise ofthe rights and fundamental freedoms of that person.

a person who commits an act of sex discrimination is liable, on conviction,to a fine of k1,000,000 and to imprisonment for a period of 5 years.

on the other hand, malawi’s international commitment to eradicate genderinequality dates back to the ratification of the convention on the elimination ofall forms of Discrimination against women (ceDaw) of 1979. the conventiondefines “discrimination against women” as—

“...any distinction, exclusion or restriction made on the basis of sex whichhas the effect or purpose of impairing or nullifying the recognition,enjoyment or exercise by women, irrespective of their marital status, on abasis of equality of men and women, of human rights and fundamentalfreedoms in the political, economic, social, cultural, civil or any otherfield.”55

By ratifying ceDaw, malawi is under an obligation to, among others,incorporate the principle of equality of men and women in its legal system,abolish all discriminatory laws and adopt appropriate ones prohibitingdiscrimination against females.56 in addition, it must ensure elimination of all actsof discrimination against females by persons, organizations or enterprises.ceDaw also singles out culture and tradition as influential forces in shapinggender roles and family relations.

article 26 of the international covenant on civil and political rights(iccpr) also guarantees the right to equality before the law and prohibitsdiscrimination on the basis of, among others, sex. states parties are obliged toprohibit discrimination and guarantee to all persons equal and effective protectionagainst discrimination on the basis of sex, among others. it is from thisbackground that the sister special Law commission that developed the Genderequality act recommended that the Gender equality act shall apply withoutexception to traditional leadership.57 the sister commission justifies its decisionnot to exclude traditional leadership from the scope of the Gender equality act bymaking reference to the constitution which already recognises equality betweenwomen and men in all spheres. it also reiterated that malawi is also obliged underinternational law to respect women’s human rights through its direct actions,agents and structures of law.

in malawi, just like in many african countries, the problem of genderinequality and the treatment of women as minors are deeply rooted in culture,religion and tradition. practices that perpetuate gender inequality and social


55http://www.un.org/womenwatch/daw/cedaw/ (accessed on 22 may, 2014).56as above.57report of the Law commission on the Development of the Gender equality act, p.20.

injustice have been justified on these bases. the commission observed thatgender inequality and treatment of women as subordinates has also prevented alarge section of society from making their rightful contribution towardsdevelopment in general and their personal development in particular.

for example, customary resources such as land, cattle, among others, havebeen allocated to families and lineages through males. as such, women do nothave direct control over such resources except through a male guardian (father,brother, husband or uncles). Likewise, traditional leadership positions have beenmale dominated because sometimes women are considered less qualified to holdpositions in the traditional leadership.

regional consultations in mzuzu indicated that in some cultures like ngonisin mzimba, a chief’s son becomes heir in the event of the death of the fatherthereby leaving no possibility for the daughter of the chief becoming a chief inplace of her father regardless of age and position among siblings. in consideringthis issue, the commission observed that this position is pre-determined by thengoni culture in that the minds of people in such areas are indoctrinated toreinforce such cultural prescriptions.58 the commission was alive to the fact thatsome stakeholders perceive gender mainstreaming as a non-starter as far as thengoni culture is concerned. the commission also noted that the status quo isjustified on the basis that when a woman marries she is supposed to migrate to herhusband’s village upon payment of lobola under patrilineal matrimony.

consequently, the commission conceded that while it is generally acceptedthat appointment of a traditional leader is governed by customary law prevailingin a given area, there are some cultures which outrightly prohibit women fromascending to the chieftaincy such as in patrilineal societies. indeed,mainstreaming gender in such cultures is likely to be a challenge.

the commission, however, observed that the ngonis found in malawioriginated from south africa. in south africa, the law is progressive and it isengendered. for example, section 11 (1) of the traditional Leadership andGovernance framework act makes reference to ‘headwoman’. further, thetraditional Leadership and Governance framework act requires provinciallegislation to provide for mechanisms or procedures that would allow a sufficientnumber of women to be represented in the provincial House of traditionalLeaders; and to be elected as representatives of provincial House of traditionalLeaders to the national House of traditional Leaders.59 this illustrates the factthat gender mainstreaming is possible even in patrilineal cultures like the ngonis.

the commission was further aware that women have been appointed astraditional leaders in ngoni culture such as late traditional authoritychakhumbira who passed away in 2011, senior chief kachindamoto and theregent in ntcheu who held the position of paramount chief Gomani. furthermore,the commission learnt during regional consultations in Lilongwe that, since


58see Law commission consultation paper on the review of the chiefs act (unpublished).59section 16 (3) of the traditional Leadership and Governance framework act, 2003.

chieftaincy attaches to a royal family, the same family could decide on whetherthey should have a woman as a traditional leader despite being a patrilineal tribe.the commission also noted that most positions in the lower cadre of traditionalleadership like Group Village Heads and Village Heads are held by women in bothpatrilineal and matrilineal societies, a development that was consideredencouraging. in addition, the commission learnt in respect of zambia that, despitebeing a patrilineal tribe, the lozi tribe from the Barotseland in the westernprovince also follows lineage through the mother.

although the issue of gender is seen from the point of view that women havebeen unjustifiably denied access to traditional leadership due to cultural dictates,it is fascinating to note that, in some parts of the country, traditional leadershippositions have always been held by females only. for example, under the yao insalima, the kuluunda and salima chieftaincies have always had a femaletraditional leader. as such, efforts to bring in gender equality between men andwomen must apply even in these special cases.

the commission was therefore of the opinion that customary law needs tobe adapted and interpreted in a progressive manner to reflect developments takingplace in society, since survival of customary law depends on the dynamism andresponsiveness it displays in the face of the ever changing society. thecommission was aware that, in namibia, members of the traditional communityhave taken an active role to ensure gender equality. the traditional authorityleaders strive to modernize tradition and custom by ensuring that all practices thatare contrary to the provisions of the constitution are changed and conform toprinciples of equality and non-discrimination.

additionally, the commission observed that cultural prescriptions cannot beabove constitutional principles. the constitution mandates the state to activelypromote the welfare and development of the people of malawi by among othersprogressively adopting and implementing policies and legislation aimed atachieving gender equality for women and men through full participation ofwomen in all spheres of the society.60 further, section 24 of the constitutionprovides that any law that discriminates against women on the basis of gender isinvalid. the state is therefore mandated to pass legislation in order to eliminatecustoms and practices that discriminate against women.61

the commission formed the opinion that the importance of engenderingtraditional leadership cannot be overemphasized but urged for caution in dealingwith this issue. the commission was mindful that sometimes it is not onlylegislation that can bring about the desired change in people’s attitudes. policystatements may equally achieve the desired change. the commission, thusrecommends that in order to ensure gender mainstreaming in traditionalleadership the law should contain a general policy statement prohibiting thedenying of any person an opportunity to become a traditional leader on the basis


60section 13 of the constitution of malawi.61section 24 (2) of the constitution.

of gender and that the principle of gender equality should equally apply across theboard, even to chieftaincies that have a long time been dominated by a particulargender.

the commission desisted from stipulating numbers of women to berecognized as traditional leaders as a way of engendering traditional leadershipbecause it considered that it would be too early for malawi to take this bold step.the commission however conceded the need for Government, through theministry of Local Government, to intensify civic education in order to change themindset of people regarding this matter, and urged Government accordingly.

the commission thus recommends adoption of the following provision—… — (1) A person shall not be denied the opportunity to

become a traditional leader on the basis of sex, gender or maritalstatus.

(2) Government shall, through the Ministry responsible forLocal Government, carry out public awareness programmes inorder to promote the realization of gender equality in traditionalleadership.

18.0 otHer Laws affectinG traDitionaL LeaDersthe commission observed that there are various statutes, which have a

bearing on issues concerning traditional leaders, that require harmonization. thecommission identified the following legislation for this task.

18.1 constitution of malawithe commission observed that sections 68 to 72 of the constitution of 1994

provided for the establishment of the senate as the upper House of parliament.the composition of the senate included chiefs nominated based on a registeredvoter list in the district and upon being elected by a caucus of all the chiefs of thatdistrict by a secret ballot within 30 days of each local government election.62

parliament repealed this provision in 1995. in the review of the constitution carried out by its sister special Law

commission, a recommendation was made to reintroduce the senate with adifferent composition on the membership of chiefs.63 the commission observedthat in the composition of the senate, the number of chiefs has been reduced toten on the basis that chiefs are easily manipulated by politicians. the commissionconsidered that since it has taken a position to depoliticize the institution ofchieftaincy, inclusion of traditional leaders in the senate may defeat this purpose.the commission thus concluded that the inclusion of chiefs in the senate wouldbe detrimental to the goal of promoting independence of the institution and itsdepoliticization.


Genderequality intraditionalleadership

62according to the repealed section 68 (1) (b) of the constitution.63Law commission report on the review of the constitution, september, 2007.

the commission, however, reiterated its recommendation of establishing anindependent institution for traditional leaders in order to afford them anopportunity of discussing issues relating to traditional leadership in the council.the commission was of the view that the proposed lower representation oftraditional leaders in the senate would be compensated for by the establishmentof the proposed council.

18.2 Local Government actsection 5 of the Local Government act provides that traditional authorities

from a local government area are ex-officio and non-voting members of a districtcouncil.64 the commission observed that members of parliament from theconstituencies that fall within the local government area are voting members eventhough they are also ex-officio members of the district council.65 the commissionconsidered the pros and cons of allowing traditional leaders to vote in districtcouncils. the commission acknowledged that the membership of traditionalleaders in the council is permanent compared to all other members. for example,councillors and mps are elected for a period. it was also considered that makingtraditional leaders voting members of the council would ensure preservation ofinstitutional memory. However, it was conceded that to allow non-electedmembers to vote would go against the grain of decentralization principles, whichemphasize democratic participation and transparency and accountability. thecommission thus recommends retention of the status quo.

in terms of the amendment to the Local Government act that changed thestatus of mps from non-voting to voting members, the commission was of theview that making mps voting members of the council is an anomaly. it goesagainst the principle of separation of powers by allowing an mp to legislate atmore than one level. further, mps are not elected to district councils. thecommission thus recommends that the ministry of Local Government shouldtake lead in the initiation of an amendment to section 5 of the Local Governmentact to correct this anomaly.

18.3 Land act

the commission observed that the proviso to section 26 of the Land act66

mandates the minister, by way of general or special direction to chiefs, toauthorize chiefs to use and allocate any customary land within their areas inaccordance with customary law. However, the 2002 national Land policy and theBill proposing to enact a customary Land act recommends repeal of thisprovision and proposes a transparent and accountable system of customary landmanagement.67 the commission thus agrees with the recommendation to repealsection 26 of the Land act.


64section 5 (1) of the Local Government act, cap. 22:01.65see section 5 (1) (b) of the Local Government act, cap. 22:01.66cap. 57:01.67see Law commission report on the review of the Land related Laws.

19.0 conseQuentiaL proVisionsthe commission recommends adoption of the following consequential

provisions—(a) Long titlethe commission observed that the Long title to the act makes provision for

the recognition, appointment and functions of paramount chiefs, senior chiefs,chiefs, sub-chiefs, councillors, Group Village Headmen and Village Headmen;and for certain aspects of district administration.

firstly, the commission was aware that practice has developed wherebychiefs are referred to as “traditional authorities” (t/a) and sub-chiefs as “sub-traditional authorities” (st/a). this practice has been augmented by legislationsuch as the Local Government act68 that refers to persons holding or acting in theoffice of chief as “traditional authorities”; and Government policy such as the2002 national Land policy that refers to chiefs as “traditional authorities”. inorder to keep abreast with these recent developments, the commissionrecommends that the Long title should be amended accordingly to reflect thesedevelopments by substituting “chief” with “Traditional Authority” and “sub-chief” with “Sub-Traditional Authority”.

secondly, the commission observed that the scope of the Long title extendsto recognition, appointment and functions of councillors and to certain aspects ofdistrict administration. the commission recommends removal of any reference tothese matters on the basis of the fact that they are regulated under the LocalGovernment act69 and the Local Government elections act.70

thirdly, the commission observed that the act refers to heads of villages asHeadmen. the commission was aware that women also ascend to these positionsand recommends use of gender-neutral language in referring to these positions.the commission thus recommends that the word “Headmen” or “Headman”should be replaced with the word “Heads” or “Head” in the proposed legislation.

while debating on the scope of the act, the commission was informed thatin some districts in the northern region, particularly in rumphi, Group VillageHeads are sub-divided into three categories: senior Group Village Heads,principal Group Village Heads and Group Village Heads in descending order. thecommission considered the appropriateness of recognizing this emerginghierarchy in the lower cadre of traditional leadership. the commission noted thatthere is no set criterion for recognizing this emerging hierarchy among GroupVillage Headmen and that this might create confusion. the commissionexpressed fear that legitimizing this practice might promote proliferation ofchieftaincies which might impact negatively on Government resources. thecommission therefore recommends that this practice should not be recognized


68of 1999, cap. 22:01 of the Laws of malawi.69cap. 22:01 of the Laws of malawi.70cap. 22:02 of the Laws of malawi.

and should be discouraged.consequently, the commission recommends replacement of the Long title

as follows—An Act to make provision for the appointment, recognition, functionsand discipline of traditional leaders, the establishment of the Council ofTraditional Leaders and for matters incidental thereto or connectedtherewith(b) Short title and commencementin discussing the short title of the act, namely “the chiefs act”, the

commission observed that the term “chief” has been defined superfluously undersection 2 to mean “a person holding or acting in the office of chief under thisact”. the commission was aware that, in practice, the term “chief” refers to atraditional authority to the exclusion of other traditional leaders envisaged underthe act. the commission thus considered the short title, on this account,inappropriate and misleading.

the commission considered the option of titling the act as “traditionalauthorities act.” the commission debated this issue extensively and foundtitling the act as traditional authorities act inappropriate as it excludes othertraditional leaders envisaged under the act in that titling the act as “traditionalauthorities act” would make the act to be viewed as only applying andregulating traditional leaders who are holding the position of traditionalauthority and sub-traditional authority.

the commission had recourse to legislation from other jurisdictions such assouth africa71 and zimbabwe72 and observed that in these jurisdictions an allencompassing terminology is used, that of “traditional Leaders”. thecommission found this term more appropriate and recommends that the shorttitle to the act be changed to read “Traditional Leaders Act”. section 1 shouldtherefore be amended to read as follows—

… — (1) This Act may be cited as the Traditional LeadersAct.

(2) This Act shall come into force on a date the Ministermay, by notice published in the Gazette, appoint.

(c) Definitionsthe commission recommends that the following terms and words that have

been used in the proposed act should be defined under the provisions ondefinitions as follows—

… — In this Act, unless the context otherwise requires—


71see the traditional Leadership and Governance framework (amendment) act of 2003.72see the traditional Leaders act of 1998.

Short title andcommencement

Interpretation

“appointing authority” means a royal family or TraditionalAuthority;

“area of jurisdiction” means the area of jurisdictiondesignated for a traditional community;

“Code of Conduct” means the Code of Conduct contained inthe ....... Schedule;

“Council of Traditional Leaders” means the Council of Traditional Leaders established under Part .... of this Act;

“household” includes all persons related by blood or lawwho occupy a housing unit as their usual place of residenceand may be a single family, one person living alone, two (2)or more families living together, or any other group ofrelated persons who share living arrangements;

“partisan” in relation to a traditional leader, meansexhibiting affiliation with a political party or politician, byword or conduct;

“regent” means a person who, under customary law of thetraditional community concerned, holds a traditionalleadership position in a temporary capacity until asuccessor to that position, is recognized in accordance withsection ...;

“royal family” means the core customary institution orstructure consisting of immediate relatives of a rulingfamily within a traditional community, who have beenidentified under, and includes, where applicable, otherfamily members who are close relatives of the rulingfamily;

“senior traditional leader” means a traditional leader of aspecific traditional community who exercises authorityover a number of Group Village Heads or Village Heads inaccordance with customary law, or within whose area ofjurisdiction, a number of Group Village Heads or VillageHeads exercise authority;

“traditional leader” means a person who, under customarylaw of a particular traditional community, holds theposition of Paramount Chief, Traditional Authority, Sub-Traditional Authority, Group Village Head or Village Head,and is recognized in accordance with this Act;

“traditional leadership” means the customary institutions orstructures or customary systems or procedures of


governance, recognized, utilized or practised by traditional communities; and

“village” means a collection of not less than fifty (50)households and includes female-headed or child-headedhouseholds.

(d) Power to make subsidiary legislationthe commission observed that under the Laws of malawi, it is common

practice that the minister responsible for that particular portfolio is empowered tomake regulations or introduce and amend schedules of an existing piece oflegislation.

the commission observed that this power is not provided for under the act.the commission resolved to give powers to the minister responsible fortraditional leaders to make regulations which will affect the following areas—

(a) duties of clerks and messengers;(b) remuneration of clerks and messengers;(c) determination of procedures to be followed when declaring

boundaries of sections or sub-sections of districts;(d) prescribing remuneration and benefits of traditional leaders; and(e) regarding any other ancillary or incidental administrative or

procedural matter that may be necessary to prescribe to facilitate the properimplementation or administration of this act.the commission also recommends that the minister be given power to

amend any schedule to the act. the commission therefore recommends adoptionof the following provisions—

… — (1) The Minister may make regulations for the bettercarrying into effect of this Act.

(2) Without prejudice to the generality of subsection (1),regulations may provide for the following—

(a) duties of clerks and messengers;(b) remuneration of clerks and messengers;(c) determination of procedures to be followed when

declaring boundaries of sections or sub-sections of districts;(d) prescription of remuneration and benefits of traditional

leaders; and(e) regarding any other ancillary or incidental

administrative or procedural matter that may be necessary toprescribe to facilitate the proper implementation or


Regulations

administration of this Act.… — The Minister may, in consultation with the Secretary

responsible for Local Government, by notice published in theGazette, amend any Schedule to this Act.

(e) Miscellaneous provisionsthe commission recommends the adoption of the following provision

regarding miscellaneous matters—… — (1) The Chiefs Act is hereby repealed.

(2) A person who, immediately before the commencement ofthis Act, was recognized as Paramount Chief, Senior Chief,Traditional Authority or Sub-Traditional Authority under theChiefs Act, 1967 (now repealed) shall be deemed to have beenappointed to the corresponding office under this Act.

(3) Boundaries assigned to sections or sub-sections prior tothe coming into operation of this Act shall, until altered underthis Act, continue to be the boundaries of the correspondingsection or sub-section established by this Act.

(4) A Paramount Chief or a Senior Chief who holds hisposition on a personal to holder basis shall continue to hold theposition until the positions naturally phase out.

… — At the commencement of this Act, all actions pendingor undertaken under the Chiefs Act (now repealed) shall be dealtwith as if they have been commenced under this Act and anycourt dealing with the matter shall continue as if it hasjurisdiction under this Act.


Repeal andsavings

Transitional

Amendment toschedules

APPENDIX I

TRADITIONAL LEADERS BILL, 20…


traDitionaL LeaDersarranGement of sections

part i__preLiminary

1. short title and commencement2. interpretation

part ii__appointments, recoGnition anD instaLLation of traDitionaLLeaDers

3. offices of traditional leaders and traditional leadership positions4. appointment of paramount chief5. appointment of traditional authority6. appointment of sub-traditional authority7. appointment of Group Village Head and Village Head8. failure to fill a vacancy9. regency10. installation of traditional leaders11. oath of office or affirmation12. eligibility criteria13. recognized paramount chiefs

part iii__creation of ViLLaGe anD Group of ViLLaGes14. creation of village15. recognition of village16. creation of group of villages

part iV__functions of traDitionaL LeaDers17. functions of paramount chief18. functions of traditional authority19. functions of sub-traditional authority20. functions of Group Village Head and Village Head

part V__remoVaL from office

21. Grounds for removal22. procedure for removal

part Vi__emoLuments of traDitionaL LeaDers

23. emoluments of traditional leaders24. retirement and ex-gratia payment

part Vii__staff of traDitionaL LeaDers

25. clerk and messenger26. appointment of clerk and messenger27. Duties of clerk28. Duties of messenger


part Viii__DiscipLine

29. establishment of Disciplinary committees30. composition of first Disciplinary committee31. Jurisdiction of first Disciplinary committee32. composition of second Disciplinary committee33. Jurisdiction of second Disciplinary committee34. composition of third Disciplinary committee35. Jurisdiction of third Disciplinary committee36. composition of fourth Disciplinary committee37. Jurisdiction of fourth Disciplinary committee38. Gender mainstreaming39. appeals40. procedure

part iX__counciL of traDitionaL LeaDers

41. establishment of council42. powers and functions of council43. composition of council44. procedure for appointment of members45. eligibility for appointment of members46. chairperson and vice chairperson of council47. tenure of office48. oath of office49. Vacation of office50. meetings of council51. allowance and other benefits52. procedure53. committees54. minutes55. secretariat and other staff56. functions of secretariat57. filling of vacancy

part X__offences

58. acts of misconduct59. code of conduct60. General offences

part Xi__misceLLaneous

61. Gender equality in traditional leadership62. area of jurisdiction of traditional leader63. Jurisdiction in city, municipality or township64. effect of criminal conviction65. Duties of member of community66. regulations


67. amendment to schedules68. repeal and savings69. transitional

a B i L Lentitled

An Act to make provision for the appointment, recognition, functions and discipline of traditional leaders, the establishment of the Council of Traditional Leaders and for matters incidental thereto or connected therewith

enacteD by the parliament of malawi as follows—part i__preLiminary

1.—(1) this act may be cited as the traditional Leaders act.(2) this act shall come into force on a date the minister may, by

notice published in the Gazette, appoint.2. in this act, unless the context otherwise requires—“appointing authority” means a royal family or traditional

authority;“area of jurisdiction” means the area of jurisdiction designated

for a traditional community;“code of conduct” means the code of conduct contained in the

third schedule;“council of traditional Leaders” means the council of

traditional Leaders established under part iX of this act;“household” includes all persons related by blood or law who

occupy a housing unit as their usual place of residence and may be asingle family, one person living alone, two (2) or more families livingtogether, or any other group of related persons who share livingarrangements;

“partisan” in relation to a traditional leader, means exhibitingaffiliation with a political party or politician, by word or conduct;

“regent” means a person who, under customary law of thetraditional community concerned, holds a traditional leadershipposition in a temporary capacity until a successor to that position, isrecognized in accordance with section 9;

“royal family” means the core customary institution or structureconsisting of immediate relatives of the ruling family within atraditional community, who have been identified under, and includes,


short title andcommencement

interpretation

where applicable, other family members who are close relatives ofthe ruling family;

“senior traditional leader” means a traditional leader of aspecific traditional community who exercises authority over anumber of Group Village Heads or Village Heads in accordance withcustomary law, or within whose area of jurisdiction, a number ofGroup Village Heads or Village Heads exercise authority;

“traditional leader” means a person who, under customary lawof a particular traditional community, holds the position ofparamount chief, traditional authority, sub-traditional authority,Group Village Head or Village Head, and is recognized in accordancewith this act;

“traditional leadership” means the customary institutions orstructures or customary systems or procedures of governance,recognized, utilized or practised by traditional communities; and

“village” means a collection of not less than fifty (50)households and includes female-headed or child-headed households.

part ii__appointments, recoGnition anD instaLLation oftraDitinaL LeaDers

3.—(1) there are hereby established the several offices ofparamount chief, traditional authority and sub-traditionalauthority set out in the second, third and fourth columns of the FirstSchedule respectively.

(2) in addition to offices established under subsection (1), thereis hereby recognized the following lower cadres of traditionalleadership of Group Village Head and Village Head.

4.—(1) where a need for filling a vacancy in the office of aparamount chief arises, the royal family shall, within twelve (12)months and with due regard to applicable customary law, identify andnominate a person who qualifies to assume the position of paramountchief.

(2) the royal family shall, in writing, inform a district council ofthe particulars of the person nominated to fill the position ofparamount chief.

(3) where the district council is satisfied that a person has beennominated in accordance with customary law and in accordance withthis act, the district council shall inform the royal family for formalappointment of the person as paramount chief.

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appointmentof paramountchief

(4) where there is evidence or allegation that the nomination ofa person referred to in subsection (1) was not done in accordance withcustomary law or this act, the district council shall refer the matterback to the royal family for reconsideration and resolution withinsixty (60) days.

(5) where the matter, which has been referred back to the royalfamily under subsection (4), has been reconsidered and resolved, theroyal family shall inform the district council.

(6) the district council shall, upon receiving communication offormal appointment, notify the minister who shall, in turn, inform thepresident of the appointment, in writing, specifying the name, officialtitle, traditional title, if any, and date of appointment.

(7) the president shall, upon receipt of a notice referred to insubsection (6), recognize the person appointed as paramount chiefby issuing a certificate of recognition.

(8) where the president does not issue a certificate ofrecognition and three (3) months have passed since the time ofnotification under subsection (6), it shall be deemed that the presidenthas recognized the appointment.

(9) where the president has issued a certificate of recognitionin accordance with subsection (7) or it is deemed that the presidenthas recognized the appointment in accordance with subsection (8),the minister shall publish the notice of recognition in the Gazette.

5.—(1) when a need for filling a vacancy in the office of atraditional authority arises, the royal family shall, within twelve (12)months and with due regard to applicable customary law, identify andnominate a person who qualifies to assume the position of traditionalauthority.

(2) the royal family shall, in writing, inform a district council ofthe particulars of the person nominated to fill the position oftraditional authority.

(3) where the district council is satisfied that a person has beennominated in accordance with customary law and in accordance withthis act, the district council shall inform the royal family for formalappointment of the person as traditional authority.

(4) where there is evidence or allegation that the nomination ofa person referred to in subsection (1) was not done in accordance withcustomary law or this act, a district council shall refer the matterback to the royal family for reconsideration and resolution withinsixty (60) days.

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(5) where the matter, which has been referred back to the royalfamily under subsection (4), has been reconsidered and resolved, theroyal family shall inform the district council.


(7) the president shall, upon receipt of a notice referred to undersubsection (6), recognize the person appointed as traditionalauthority by issuing a certificate of recognition.



6.—(1) where groups of villages exceed ten (10) in number, atraditional authority shall, in consultation with the royal family,identify and nominate a person to be recognized as sub-traditionalauthority.

(2) where a traditional authority nominates a person undersubsection (1), he shall specify the boundaries of the area ofjurisdiction in consultation with Group Village Heads of the proposedsub-traditional authority.

(3) a traditional authority shall inform a district council, inwriting, of the particulars of the person so nominated and the area ofjurisdiction proposed for the sub-traditional authority.

(4) where the district council is satisfied that the person hasbeen nominated and the area has been proposed in accordance withapplicable customary law and this act, the district council shall notifythe traditional authority for formal appointment.

(5) where there is evidence or allegation that the nominationand the proposal of the area of jurisdiction in subsections (1) and (2)respectively, was not done in accordance with customary law or thisact, the district council shall refer the matter back to the traditionalauthority for reconsideration and resolution within sixty (60) days.

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(6) where the matter, which has been referred back to thetraditional authority under subsection (5), has been reconsidered andresolved, the traditional authority shall inform the district council.


(8) the president shall, upon receipt of a notice referred to undersubsection (7), recognize the person appointed as sub-traditionalauthority by issuing a certificate of recognition.



7.—(1) subject to subsection 4, a traditional authority mayappoint a Group Village Head or Village Head, as he may considernecessary, to assist him in carrying out his functions.

(2) where a need to fill a position of a Group Village Head orVillage Head arises, the traditional authority shall, within twelve(12) months and having regard to applicable customary law, identifyand nominate a person who qualifies under the customary law toassume the position of Group Village Head or Village Head.

(3) the traditional authority shall inform the district council, inwriting, of the particulars of the person nominated to fill the positionof Group Village Head or Village Head.

(4) where a district council is satisfied that a person has beennominated in accordance with the applicable customary law and thisact, the district council shall notify the traditional authority forformal appointment.

(5) the traditional authority shall upon receipt of thecommunication referred to under subsection (4), formally appoint thenominee by giving the person a register and entering his name in theregister of traditional leaders.

8.—(1) where an appointing authority fails to identify a person to fill a vacancy within twelve (12) months, the Districtcommissioner shall facilitate identification of a person through the

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failure to fill avacancy

assistance of other traditional leaders within the district.(2) the District commissioner shall facilitate identification of a

person through traditional leaders from another district, wheretraditional leaders within the district fail to assist the appointingauthority.

9.—(1) where an appointing authority considers that atraditional leader is unable to fulfill the functions of his officesatisfactorily by reason of—

(a) age;(b) infirmity;(c) criminal conviction;(d) suspension; or(d) other incapacity,

the appointing authority may appoint another person to act in theoffice as regent.

(2) the regent shall—(a) perform all the functions of the office;(b) be recognized by way of publication of his name in a

General notice; and(c) not be entitled to emoluments of a substantive

traditional leader.(3) where the regent is appointed, the substantive holder of the

office shall not perform any of the functions of the office.(4) the appointing authority shall inform the minister, in

writing, of the appointment of a regent, through the Districtcommissioner.

(5) where conditions under subsection (1) cease to apply, aregent shall cease to hold office of traditional leader.

10.—(1) the minister shall conduct the installation of aparamount chief.

(2) installation of other traditional leaders shall be conducted asfollows—

(a) a paramount chief shall install a traditional authority;and

(b) a traditional authority shall install a sub-traditionalauthority.(3) a traditional leader shall, at an installation ceremony, be

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installation oftraditionalleaders

given the following items—(a) a seal;(b) a stamp;(c) appropriate regalia commensurate with the tier of

traditional leadership;(d) a national flag; and(e) any other article that is traditionally given to a

traditional leader in accordance with prevailing custom.11.—(1) a traditional leader holding the position of paramount

chief, traditional authority or sub-traditional authority shallascribe to an oath of office or affirmation, at an installation ceremony,set out in the Second Schedule.

(2) an oath of office or affirmation shall be conducted asfollows—

(a) a registrar of the High court shall administer oath oraffirmation to a paramount chief; and

(b) a resident magistrate shall administer oath oraffirmation to a traditional authority or sub-traditionalauthority.12.—(1) a person shall qualify for appointment as a traditional

leader, if the person—(a) where applicable, is a member of the royal family;(b) is entitled to hold office under a customary law or

tradition;(c) has no criminal record;(d) commands support, respect and trust in the area of

jurisdiction;(e) is of sound mind; and(f) is able to read and write english.

(2) when appointing a traditional leader, an appointing authorityshall take into account the following factors—

(a) seniority of the person or chieftaincy, as the case maybe;

(b) the customary law applicable in the area;(c) integrity of the person to be appointed; and(d) the level of respect the person commands generally.

(3) Government shall, through the minister, initiate andimplement policies and programmes aimed at promoting literacy in

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SecondSchedule

eligibilitycriteria

royal families.13.—the act shall recognize the following offices of

paramount chiefs as permanent—(a) Gomani;(b) Lundu; and(c) m’mbelwa.

part iii–creation of ViLLaGe anD Group of ViLLaGes

14.—(1) where a Group Village Head identifies the need forcreation of a village, he shall inform his traditional authority or sub-traditional authority, in writing.

(2) when identifying the need for creation of a village, theGroup Village Head shall take into account the following factors—

(a) population of households in the village in excess of fifty(50) households; and

(b) geographical features of the area.(3) a traditional authority or sub-traditional authority shall

upon receipt of a proposal for creation of a village in accordance withsubsection (1), investigate the proposal through traditionalcounsellors.

(4) where a traditional authority or sub-traditional authorityfinds the proposal justified, he shall submit the proposal for creationof a village to the district council.

(5) the district council shall, upon receipt of the proposal,conduct an appraisal and—

(a) approve the creation of the village and inclusion of thevillage head on the payroll; or

(b) reject the proposal, upon giving valid reasons.(6) the district council may, upon giving good and justifiable

reasons, approve the creation of a village where there are less thanfifty (50) households.

15. where a village relocates to another area, the village shall—(a) continue to exist as a village;(b) submit to the authority of the Group Village Head,

where it has relocated; and(c) be recognized as a village by the Group Village Head of

the area.

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creation ofvillage

recognitionof village

16.—(1) a traditional authority or sub-traditional authoritymay create a group of villages which shall comprise at least ten (10)villages.

(2) where the traditional authority or sub-traditionalauthority identifies the need for creation of a group of villages, heshall submit a proposal to the district council:

provided that where the need has been identified by a sub-traditional authority, the sub-traditional authority shall inform thetraditional authority prior to informing the district council.

(3) the district council shall, upon receipt of the proposal forcreation of group of villages, conduct an appraisal and may—

(a) approve the creation of a group of villages; or(b) reject the proposal, upon giving valid reasons.

part iV__functions of traDitionaL LeaDers

17. the functions of the office of the paramount chief shall beto provide overall supervision of all traditional leaders in his regionand to—

(a) promote the welfare of people;(b) ascertain the customary law of his ethnic group, in

consultation with traditional authorities of the ethnic group,and assist in its codification;

(c) carry out the traditional functions of his office undercustomary law in so far as the discharge of the functions is notcontrary to the constitution or any written law and is notrepugnant to natural justice or morality;

(d) perform traditional ceremonies and functions;(e) ensure conservation of natural resources, the

environment and the ecosystem in his area of jurisdiction;(f) hear appeals arising out of disputes concerning matters

handled by traditional authorities of his tribe; (g) where applicable, perform the functions conferred on

traditional leaders under section 18; and(h) perform any other functions as may be conferred on him

by or under this act or any other written law.18. a traditional authority, in his area of jurisdiction, shall—

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functions ofparamountchief

functions oftraditionalauthority

(a) promote the welfare of the people;(b) inform and mobilize the people towards

implementation of development projects;(c) carry out the traditional functions of his office under

customary law in so far as the discharge of the functions is notcontrary to the constitution or any written law and is notrepugnant to natural justice or morality;

(d) assist the malawi police service and other lawenforcement agencies in the preservation of public peace,prevention and investigation of crime and apprehension ofoffenders;

(e) in consultation with his subordinates, ascertain andassist in codification of the customary laws applicable;

(f) uphold, promote, protect, preserve culture, language,tradition and values and maintain any cultural site, works of artand literary works;

(g) perform traditional ceremonies and functions;(h) promote gender equality;(i) assist in the general administration of the district in

which his area of jurisdiction is situated and for that purpose, tocarry out any functions under lawful directions of the Districtcommissioner;

(j) assist and cooperate with the Government and thedistrict council in the execution of public policies;

(k) ensure sustainable use of natural resources andpreservation of the ecosystem for the benefit of all persons inmalawi;

(l) respect the culture, customs and language of any personwho resides within the community as long as the culture, customand language is not contrary to the constitution or any writtenlaw and is not repugnant to natural justice or morality;

(m) hear and determine customary disputes; and(n) perform other functions as may be conferred on him by

or under this act or any other written law.

19.—(1) in his area of jurisdiction, a sub-traditional authorityshall perform the functions of the traditional authority.

(2) a sub-traditional authority shall perform any functions and

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duties as shall be delegated to him by the traditional authority towhom he is subordinate:

provided that the functions and duties of the office of atraditional authority that are delegated shall not extend to anyfunction which under any law may not be exercised by a person otherthan a traditional authority.

(3) a sub-traditional authority shall, in the performance of thefunctions, act in accordance with the general or special directions ofthe traditional authority to whom he is subordinate.

(4) in addition to performance of delegated functions undersubsection (1), a sub-traditional authority shall—

(a) report any relevant matter in his area to the traditionalauthority;

(b) preside over appeals on customary cases from GroupVillage Heads; and

(c) oversee Group Village Heads and Village Heads in hisarea of jurisdiction.20. a Group Village Head and a Village Head shall, as the case

may be,—(a) assist a traditional authority or sub-traditional

authority by whom he is appointed in the performance of hisfunctions;

(b) bring to the notice of a traditional authority or sub-traditional authority any relevant matter in his group of villagesor village;

(c) manage his group of villages or village; and(d) hear and determine customary disputes between

members of his group of villages or village.part V__remoVaL from office

21. an appointing authority may remove a traditional leaderfrom office, if the traditional leader—

(a) ceases to be entitled to hold office under customary law;(b) is convicted of a crime without the option of a fine by a

competent court of law;(c) commits a serious breach of customary law;(d) is incapacitated; or

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Grounds forremoval

(e) commits an offence under this act whose penalty isremoval from office.22.—(1) a person who resides within the area of jurisdiction of

a traditional leader or an appointing authority may initiate the processof removal of a traditional leader.

(2) where a person specified under subsection (1) is satisfiedthat grounds for removal of the traditional leader from office havearisen under this act, he shall inform the district council in writing,specifying the name, title of the traditional leader and the grounds forremoval.

(3) the district council shall, upon receipt of the communicationunder subsection (2)—

(a) inform the appointing authority and the traditionalleader complained against; and

(b) investigate the matter.(4) where the appointing authority is satisfied that grounds for

removal of a traditional leader have been satisfied under this act, theappointing authority may further investigate the matter and shallmake a finding on the matter.

(5) when investigating the matter, the district council orappointing authority shall give the traditional leader underinvestigation an opportunity to be heard.

(6) where the district council is investigating the matter, it shallmake its findings and recommendations and inform the appointingauthority.

(7) where the appointing authority has made its decision on thematter, it shall inform the traditional leader.

(8) where the appointing authority decides to remove atraditional leader from office, the appointing authority shall informthe district council, of—

(a) the removal of a traditional leader;(b) the grounds for removal; and(c) the date on which the removal took effect.

(9) where the district council is satisfied that the removal is inaccordance with this act, the district council shall communicate theremoval, in writing, to the minister.

(10) the minister shall publish the removal of the traditionalleader in the Gazette specifying the following particulars—

110 31st August, 2015

procedure forremoval

(a) name;(b) official title;

(c) traditional title, where applicable; and(d) date of removal of the traditional leader.(11) the minister shall also inform the president of the removal,

in writing.(12) the president shall, upon receipt of a notice referred to in

subsection (9) recognize the removal from office of the traditionalleader, in writing, and, where applicable, by withdrawing thecertificate of recognition.

(13) where the president does not withdraw the certificate ofrecognition within three (3) months of receiving the notice insubsection (10), the certificate shall be deemed to have beenwithdrawn.

part Vi__emoLuments of traDitionaL LeaDers

23.— (1) a traditional leader shall receive emoluments fromGovernment in accordance with the act.

(2) the emoluments paid to a traditional leader shall be anhonorarium payable monthly in arrears.

(3) the secretary responsible for Local Government shall, onrecommendation of the council of traditional Leaders, determineemoluments of traditional leaders.

24.— (1) a traditional leader may voluntarily retire from hisoffice where he—

(a) regardless of age, is certified, on medical grounds, asunfit to perform the functions of his office; or

(b) attains the age of seventy (70) years.(2) a traditional leader shall, where he retires in accordance with

subsection (1), be entitled to receive ex-gratia payment.(3) the secretary responsible for Local Government shall

determine ex-gratia payments to traditional leaders which shall bepayable monthly until death of the traditional leader.

(4) a traditional leader shall, where he decides to voluntarilyretire from the traditional leadership position in accordance withsubsection (1), inform the appointing authority of his intention.

(5) the appointing authority shall, upon receipt of theinformation under subsection (4) appoint a regent in accordance with

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retirement andex-gratiapayment

section 11.part Vii__staff of traDitionaL LeaDers

25. a paramount chief, traditional authority or sub-traditionalauthority shall, in the execution of his duties, be entitled to theservices of a clerk and a messenger.

26.— (1) a district council shall appoint, suspend or remove aclerk or messenger and shall exercise disciplinary control over theperson so appointed under this part.

(2) the district council shall facilitate the training of a clerk ormessenger.

27. a clerk shall carry out clerical and administrative dutiesassigned to him by a traditional leader and specified by a Districtcommissioner.

28. a messenger shall carry out messengerial duties as may bespecified by a district council.

part Viii – DiscipLine

29.— (1) there are hereby established four (4) ad hocDisciplinary committees.

(2) a Disciplinary committee shall carry out its functions fairly,objectively and impartially.

(3) the secretary responsible for Local Government shallconstitute the disciplinary committees under this part.

(4) the secretary responsible for Local Government maydelegate the constitution of—

(a) the third Disciplinary committee to a Districtcommissioner; and

(b) the fourth Disciplinary committee to a traditionalauthority.(5) a Disciplinary committee shall have jurisdiction to hear the

matters and mete out the penalties specified in the fourth schedule30.— (1) the first Disciplinary committee shall consist of—

(a) the secretary responsible for Local Government whoshall be the chairperson;

(b) the solicitor General; and(c) one (1) paramount chief.

(2) a District commissioner from another district shall beappointed secretary to the first Disciplinary committee.

(3) members of the first Disciplinary committee under

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clerk andmessenger

appointmentof clerk andmessenger

Duties ofclerk

Duties ofmessenger

establishmentofDisciplinarycommittees

fourthschedule

compositionof firstDisciplinarycommittee

subsection (1) shall not delegate their responsibility to any otherofficer.

31. the first Disciplinary committee shall—(a) investigate any matter against a paramount chief;(b) conduct hearings regarding any matter involving a

paramount chief;(c) make determinations and, where applicable, prescribe

punishment specified under this act; and(d) hear appeals from the second Disciplinary committee.

32.—(1) the second Disciplinary committee shall consist of—(a) two (2) paramount chiefs; and(b) one (1) traditional authority from another district.

(2) a District commissioner from another district shall beappointed secretary to the second Disciplinary committee.

33. the second Disciplinary committee shall—(a) investigate any matter against a traditional authority or

sub-traditional authority;(b) conduct hearings regarding any matter involving a

traditional authority or sub-traditional authority;(c) make determinations and, where applicable, prescribe

punishment specified under this act; and(d) hear appeals from the third Disciplinary committee.

34.— (1) the third Disciplinary committee shall consist of—(a) two (2) traditional authorities; and(b) one (1) Group Village Head.

(2) a clerk of a traditional authority other than of a traditionalauthority under subsection (1) shall be secretary to the thirdDisciplinary committee.

35. the third Disciplinary committee shall—(a) investigate any matter against a Group Village Head;(b) conduct hearings regarding any matter involving a

Group Village Head;(c) make determinations and where applicable, prescribe a

punishment specified under this act; and

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Jurisdiction offirstDisciplinarycommittee

composition ofsecondDisciplinarycommittee

Jurisdiction ofsecondDisciplinarycommittee

composition ofthirdDisciplinarycommittee

Jurisdiction ofthirdDisciplinarycommittee

(d) hear appeals from the fourth Disciplinary committee.36.—(1) the fourth Disciplinary committee shall consist of—

(a) two (2) Group Village Heads; and(b) one (1) Village Head.

(2) a clerk of another traditional authority or sub-traditionalauthority shall be appointed secretary to the fourth Disciplinarycommittee.

37. the fourth Disciplinary committee shall—(a) investigate any matter against a Village Head;(b) conduct hearings regarding any matter involving a

Village Head; and(c) make determinations and, where applicable, prescribe

punishment specified under this act.38. in constituting a Disciplinary committee under this part, the

secretary responsible for Local Government or a duly delegatedauthority shall, where applicable, ensure that the composition of adisciplinary committee is gender balanced.

39. a traditional leader who is not satisfied with the decision ofthe Disciplinary committee that handled a matter may appeal to ahigher Disciplinary committee in accordance with this act.

40. — (1) a Disciplinary committee shall determine theprocedure for conducting business.

(2) in conducting its business, a Disciplinary committee shallobserve the rules of natural justice.

part iX – counciL of traDitionaL LeaDers

41. — (1) there is hereby established a council to be known asthe council of traditional Leaders (in this act, otherwise referred toas the “council”).

(2) the council shall be independent and shall have itssecretariat at the ministry responsible for Local Government.

42. — (1) the powers and functions of the council shall be to—(a) promote and safeguard the welfare of traditional

leaders;(b) present the views of traditional leaders on matters of

custom and tradition generally;

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Jurisdictionof fourthDisciplinarycommittee

Gender main-streaming

appeals

procedure

establishmentof council

powers andfunctions ofcouncil

(c) formulate policies for the proper functioning oftraditional leadership;

(d) consider and make recommendations on any proposedlegislation dealing with, or touching on, tradition or custom;

(e) make recommendations to the minister generally onmatters that relate to customary law and practice; and

(f) exercise and perform such other powers and functionsand deal with such matters relating to custom or tradition as theminister may from time to time direct.(2) the council shall be an advisory body to the Government on

traditional and customary law matters.43. the council shall consist of the following members—

(a) all paramount chiefs as permanent members; and(b) one (1) traditional leader from each district of the rank

of a traditional authority.44.—(1) traditional leaders in a district, from the position of

sub-traditional authority and above shall nominate one (1)representative for appointment as a member of the council:

provided that a traditional authority putting his candidacyforward for election shall require endorsement of three (3) othertraditional authorities from the rank of sub-traditional authorityand above.

(2) the designation of a representative in terms of subsection (1)shall be made to the minister, in writing, through the district council.

(3) the minister shall, subject to section 43, appoint the personsnominated at district level and paramount chiefs as members of thecouncil with effect from a date determined by the minister.

(4) the minister shall, by notice published in the Gazette,—(a) list the names of persons who have been appointed as

members of the council;(b) indicate the district of origin of appointees; and(c) specify the date of appointment.

45.—(1) a traditional leader, other than a paramount chief, shallqualify for appointment as a member of the council, if he—

(a) is a traditional authority;

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composition ofcouncil

procedure forappointment ofmembers

eligibility forappointment ofmembers

(b) commands respect and trust among fellow traditionalleaders in the district;

(c) is endorsed by at least three (3) traditional leaders in thedistrict, where applicable; and

(d) is able to read and write english.(2) a traditional leader shall not qualify for appointment as a

member of the council if he—(a) ceases to be a traditional leader;(b) ceases to be a malawian citizen;(c) is appointed or elected to a public office;(d) is partisan; or(e) owes allegiance to a foreign country.

46.—(1) the council shall elect a chairperson and vicechairperson at the first meeting of the council and ascendancy to thepositions shall be on competitive basis.

(2) the chairperson and vice chairperson shall hold office untilthe expiry of their term of office.

(3) the chairperson or vice chairperson may be removed fromoffice by the council on a majority vote of two-thirds of memberspresent on the following grounds—

(a) misconduct;(b) incompetence; or(c) any other good cause.

47. a member of the council, other than a paramount chief,—(a) shall hold office for a period of three (3) years from the

date of appointment; and(b) may, where applicable, serve in the council for a

maximum of two (2) consecutive terms.48. Before a traditional leader elected to be a member of the

council takes office, he shall take the following oath, which shall beadministered by a registrar of the High court—

“i, ……, do solemnly, sincerely and truly swear that i shall befaithful and bear true allegiance to the council, i shall perform anddischarge functions of the council to the best of my ability, i shall notbe subject to political manipulation or interference of any kind, and i

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tenure ofoffice

oath of office

shall uphold, promote and respect customary law prevailing inmalawi in accordance with the constitution and laws of malawi. sohelp me God.”

49. (1) a vacancy in the office of a member of the council shalloccur, if —

(a) the member dies;(b) the member resigns by giving one (1) month notice, in

writing, to the minister;(c) the member ceases to be a traditional leader;(d) the authority to act as a representative of the district is

withdrawn due to circumstances which would have caused himto be disqualified for appointment;

(e) the member is adjudged bankrupt;(f) the member is sentenced to any term of imprisonment

without an option of a fine;(g) member fails, without the permission of the chairperson

or the vice chairperson, to attend three (3) successive meetingsof the council of which he has had notice;

(h) member becomes incapacitated by reason of physical ormental disability; and

(i) member is guilty of conduct which renders his continuedmembership of the council inappropriate.(2) in the event of a vacancy in the office of the chairperson, the

vice chairperson shall ascend to the office of chairperson for theremainder of the term.

50.—(1) the council shall hold three (3) meetings every yearfor five (5) days at a place and time determined by the secretariat.

(2) the council may call for one (1) extra-ordinary meetingeach year for a maximum of three (3) days.

(3) the quorum of the meeting of the council shall be half itsmembership.

(4) the chairperson shall convene and preside over the meetingsof the council.

(5) in the absence of the chairperson, the vice chairperson shallpreside over meetings of the council.

(6) in the absence of both the chairperson and vice chairperson,the membership of the council shall elect one of their number presentto preside over the meeting.

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meetings ofcouncil

(7) at a meeting of the council—(a) a matter for the decision of the council shall be decided

by a majority vote of members present and voting; or (b) the chairperson, in the event of equality of votes, shall

have a deliberative vote in addition to a casting vote.(8) where a member of the council is unable to attend a meeting

of the council, the member shall not delegate the attendance to anyother person.

(9) the minister shall officially open the first meeting of thecouncil following a new term of office.

(10) the council shall formulate its own agenda in consultationwith the secretariat.

(11) Government shall meet all the costs relating to the holdingof meetings of the council.

51. members of the council shall be paid allowances or otherbenefits as may be determined by the minister.

52. the council may determine the procedure for its meetingsand proceedings.

53.—(1) the council may establish a number of committees asit deems necessary or expedient to perform its functions and exercisepowers determined by the council.

(2) a committee established under this section shall elect achairperson and a vice chairperson from among its members.

(3) a member of a committee shall hold office for a periodspecified in the letter of appointment and is eligible forreappointment once.

(4) a member of a committee may—(a) resign by giving notice to the chairperson of the

council; or(b) be removed by revocation of appointment by the

council upon giving good and justifiable reasons.(5) a committee shall hold its meetings at a place and time

determined by the chairperson of the committee.(6) the council shall determine the procedure of conducting

business for its committees.(7) a committee may invite any person to attend its meetings but

the person shall not be entitled to vote at the meeting.

118 31st August, 2015

allowanceand otherbenefits

procedure

committees

(8) a person invited to attend a meeting under this section maybe paid an allowance as the minister may determine.

54. the council shall keep minutes of proceedings of everymeeting of a committee of the council.

55. — (1) the secretariat of the council shall be based withinthe ministry responsible for Local Government.

(2) the minister shall designate the secretary to the council andsuch other officers as are required for the proper performance of thecouncil’s functions.

56. — (1) the secretariat shall coordinate all activities of thecouncil.

(2) the secretariat shall ensure that all decisions or resolutionsof the council are directed to the appropriate authorities forimplementation.

57. — a vacancy in the council shall be filled within sixty (60)days:

provided that if the remaining period is less than twelve (12)months, the vacancy may not be filled until the expiry of the period.

part X__offences

58. — subject to this act or any other written law, a traditionalleader is guilty of misconduct, who—

(a) creates a new village without following the procedurelaid out under this act;

(b) conducts installation and elevation of a Village Head toGroup Village Head without following the procedure laid outunder this act;

(c) illegally sells or acquires private or communalcustomary land;

(d) refuses to comply with a determination lawfully madeby competent authorities;

(e) engages in sexual immorality;(f) engages in, aids or abets another person in property

grabbing;(g) prevents or discourages his subjects from participating

in development activities;(h) performs his duties negligently;

31st August, 2015 119

minutes

secretariat andother staff

functions ofsecretariat

filling ofvacancy

acts ofmisconduct

(i) fails to perform duties lawfully assigned to him;(j) fails to obey instructions lawfully and properly given to

him by a person having authority to give such instructions ordisplays insubordination by word or conduct;

(k) habitually takes intoxicating liquor or habit-formingdrugs to the extent that it adversely affects performance of duties;

(l) makes use or fails to take reasonable care of publicproperty in his custody or under his charge or fails to take stepsthat are within his power to ensure that reasonable care is takenof any such property;

(m) does, causes or permits to be done, or connives in anyact which is prejudicial to the administration, discipline orintegrity of the institution of chieftaincy;

(n) attempts to secure intervention from political authorityin relation to his position or conditions of appointment tochieftaincy;

(o) is partisan; or(p) makes a false claim to Government.

59. — (1) the code of conduct contained in the Third Scheduleshall apply to every traditional leader.

(2) a violation of the code of conduct by a traditional leader shallbe misconduct punishable under this act.

60. — a person who—(a) holds himself out or purports to discharge any of the

functions of the office of paramount chief, senior chief,traditional authority or sub-traditional authority;

(b) conspires or interferes with the lawful discharge by aparamount chief, senior chief, traditional authority or sub-traditional authority of any of the functions of his office; or

(c) obstructs or interferes with the lawful discharge by aparamount chief, senior chief, traditional authority or sub-traditional authority of any of the functions of his office,shall be liable—

(i) for a contravention of paragraph (a ) or (b), to a fineof k 60,000 and to imprisonment for one (1) year; or

(ii) for a contravention of paragraph (c) to a fine ofk15,000 and to imprisonment for three (3) months.

120 31st August, 2015

code ofconductThirdSchedule

Generaloffences

part Xi__misceLLaneous

61. — (1) a person shall not be denied the opportunity tobecome a traditional leader on the basis of sex, gender or maritalstatus.

(2) Government shall, through the ministry responsible forLocal Government, carry out public awareness programmes in orderto promote the realization of gender equality in traditional leadership.

62 .— (1) the area of jurisdiction of traditional leadersestablished under section 6 shall be the districts, sections of districtsand subsections of districts specified in the first column of the FirstSchedule opposite each respective office.

(2) the minister may, on recommendation of the district councilconcerned, by order published in the Gazette, declare or alterboundaries of sections and sub-sections in order to create a new areaof jurisdiction.

(3) a certificate in writing of a District commissioner of thesituation of a boundary of any section or sub-section in his districtshall, unless such certificate is inconsistent with an order made undersubsection (2), be conclusive evidence for all purposes of thesituation of such boundary.

63. — a traditional leader shall not exercise jurisdiction withinthe area of a city, municipality or township.

64. — a person shall not assume or resume a traditionalleadership position if he is convicted by a competent court of anoffence—

(a) punishable with a custodial sentence without an optionof a fine; or

(b) involving dishonesty or moral turpitude.65. — (1) a member of the community shall—

(a) voluntarily support his traditional leader; and(b) respect a traditional leader.

(2) the support under subsection (1) may be in form of materialor financial support.

66. — (1) the minister may make regulations for the bettercarrying into effect of this act.

31st August, 2015 121

Gender equalityin traditionalleadership

area ofjurisdiction oftraditionalleadersFirst Schedule

Jurisdiction incity,municipality ortownship

effect ofcriminalconviction

Duties ofmember ofcommunity

regulations

(2) without prejudice to the generality of subsection (1),regulations may provide for the following—

(a) duties of clerks and messengers;(b) remuneration of clerks and messengers;(c) determination of procedures to be followed when

declaring boundaries of sections or subsections of districts;(d) prescription of remuneration and benefits of traditional

leaders; and(e) regarding any other ancillary or incidental

administrative or procedural matter that may be necessary toprescribe to facilitate the proper implementation oradministration of this act.67. the minister may, in consultation with the secretary

responsible for Local Government, by notice published in theGazette, amend any schedule to this act.

68. — (1) the chiefs act is hereby repealed.(2) a person who, immediately before the commencement of

this act, was recognized as paramount chief, senior chief,traditional authority or sub-traditional authority under the chiefsact, 1967 (now repealed) shall be deemed to have been appointed toa corresponding office under this act.

(3) Boundaries assigned to sections or sub-sections prior to thecoming into operation of this act shall, until altered under this act,continue to be the boundaries of the corresponding section or sub-section established by this act.

(4) a paramount chief or a senior chief who holds his positionon a personal to holder basis shall continue to hold the position untilthe positions naturally phase out.

69. at the commencement of this act, all actions pending orundertaken under the chiefs act (now repealed) shall be dealt with asif they have been commenced under this act and any court dealingwith the matter shall continue as if it has jurisdiction under this act.

122 31st August, 2015

amendmentto schedules

repeal andsavings

transitional

s. 3 first scHeDuLe

traDitionaL LeaDers anD tHeir respectiVe JurisDiction

nortHern reGion:

ParamountAreas Chiefs Senior Chiefs Chiefs Sub Chiefs1. cHitipasection 1 mwenemisuku

sub-section 1a mwangulukulusection 2 kamemesection 3 mwenewenya

sub-section 3a mwenekayilizisection 4 nthalire

sub-section 4a nthengatenga

sub-section 4B wavikaza

section 5 mwaulambyasub-section 5a Bulambya songwe

2. karonGa kyungu

section 1 wasambo

section 2 kilupula

section 3 kalonga

section 4 mwirang’ombesection 5 mwakaboko

3. rumpHi chikulamayembesection 1 mwahenga

section 1a mwankhunikira chapindukasub-section 1B kachulusub-section 1c chisovya

section 2 katumbi

sub-section 2a zolokeresection 3 mwamlowe

sub-section 3a njikulasection 4 mwalweni

4. mzimBa m’mbelwasection 1 mtwalo

section 2 chindi

section 3 mzikubolasub-section 3a chiputulasection 4 mabilabosub-section 4a Levi Jere

31st August, 2015 123

section 5 mpherembe

sub-section 5a chikoma mkandawire

section 6 mzukuzuku

section 7 kampingosibande

section 8 Jaravikuwa

munthali

section 9 khosolo Jere

5. nkHataBay

section 1 m’bwana

sub-section 1a kondowesub-section 1B nyaluwanga

section 2 Boghoyo

section 3 mankhambira

section 4 kabunduli

section 5 timbiri

section 6 fukamapiri

section 7 malengamzoma

sub-section 7a kayimika

section 8 mkumbirasection 9 zilakoma

section 10 malanda

section 11 fukamalaza

6. Likoma

section 1 mkumpha

TOTAL 3 11 25 16

124 31st August, 2015

centraL reGion:

ParamountAreas Chiefs Senior Chiefs Chiefs Sub Chiefs7. kasunGusection 1 kalulumasub-section 1a m’nyanjasub-section 1B chisikwasection 2 mwasesection 3 chulusub-section 3a chinsingasub-section 3B mphomwasection 4 santhesub-section 4a chaimasection 5 wimbesub-section 5a chitanthamapirisub-section 5B chinyamasub-section 5c wimbe mtuwasection 6 kapelulasub-section 6 a kapichirasub-section 6B mdungasection 7 Lukwasub-section 7a mawawasub-section 7B mangwazusub-section 7c kaphaizisub-section 7D simlembasection 8 kaombasection 9 simlembasection 10 kawambasub-section 10a nthunduwalasection 11 chilowa matambesub-section 11a chambwesection 1 njombwasection 13 chidzumasection 14 chisempheresection 15 nyaza8. Dowasection 1 Dzoolesub-section 1a mwanchekasub-section 1B mbonekerasection 2 chakhazasub-section 2a mdayendasection 3 msakambewasection 4 mponelasection 4a mtsinjesection 4B kasalika

31st August, 2015 125

section 5 chiweresection 6 kayembesection 7 mkukulasub-section 7a chipenintcHisisection 1 kasakulasection 2 chikhosection 3 kalumosection 4 nthondosection 5 chilookosection 6 malengasection 7 Vuso Jere4. LiLonGwesection 1 khongonisub-section 2 chitukulasection 3 chimutusection 4 mazengerasub-section 4a chitekweresub-section 4B kalindasection 5 kalumbusection 6 chadzasection 7 chisekasection 8 kalumbasection 9 kalolosection 10 kabudulasection 11 malilisection 12 masulasection 13 mtemasection 14 tsabangosection 15 njewasection 16 masumbankhundasection 17 m’bang’ombemcHinJisection 1 mkandasub-section 1a pitalasub-section 1B Gumbasub-section 1c kapunulasection 2 zulusub-section 2B nyokasection 3 mlonyenisection 4 Dambesection 5 mduwasub-section 5a mpondasection 6 mavweresection 7 kapondo

126 31st August, 2015

section 8 simphasisection 9 kazyozyo6. saLimasection 1 khombedzasection 2 Bibi kuluundasub-section 2a Bibi salimasection 3 magangasection 4 kalongasub-section 4a chisambasection 5 pembasection 6 ndindisection 7 mwanzasection 8 msosasection 9 kambwirisection 10 kambalame7. nkHotakotasection 1 kanyendasub-section 1a katimbirasection 2 malengachanzisection 3 mwadzamasection 4 kafuzilasection 5 mphondesection 6 mwansambo8. DeDzasection 1 kacheresection 2 kaphukasection 3 tambalasection 4 kasumbusection 5 kachindamotosub-section 5a kamenyagwazasection 6 chilikumwendosection 7 chauma9. ntcHeu Gomanisection 1 kwatainesection 2 chakhumbirasection 3 njolomolesection 4 phambalasub-section 4a tsikulamowasection 5 mpandosection 6 masasasection 7 makwangwalasection 8 champitisection 9 GanyatotaL 1 22 67 32

31st August, 2015 127

soutHern reGion:Paramount

Areas Chiefs Senior Chiefs Chiefs Sub Chiefs1. BaLakasection 1 nsamalasection 2 kalembosub-section 2a nandumbosub-section 2B kachengasection 3 nkayasection 4 sawalisection 5 amidusection 6 chanthunyasub-section 6a phalula2.manGocHisection 1 Jalasisub-section 1a ntondasection 2 mpondasection 3 nankumbasection 4 katulisection 5 makanjirasub-section 5a kululangasection 6 chimwalasection 7 chowesection 8 mbwana nyambisection 9 namavisection 10 chilipa3. macHinGasection 1 Liwondesub-section 1a nsanamasection 2 kawingasub-section 2a nchinguzasection 3 nyambisection 4 sitolasection 5 mlombasection 6 chikweosection 7 chiwalosection 8 ngokwesection 9 mposasection 10 chambasection 11 kapolomasection 12 nkulasection 13 nkoola

128 31st August, 2015

4. zomBasection 1 kuntumanjisub-section 1a nkagulasection 2 mwambosection 3 chikowisub-section 3a ngwelerosub-section 3B ntholorasection 4 mlumbesub-section 4a nkapitasection 5 malemiasection 6 mkumbirasection 7 mbizacHiraDzuLusection 1 mpamasub-section 1a ongasection 2 nkalosub-section 2a maonisection 3 kadeweresub-section 3a mpungasection 4 ntchemasub-section 4a sandarekisection 5 chiterasection 6 LikoswepHaLomBesection 1 Jenalasection 2 nazombesection 3 chiwalosection 4 kaduyasection 5 nkhulambemuLanJesection 1 mabukasub-section 1a sunganinzerusub-section 1B tombondiyasection 2 chikumbusection 3 mthiramanjasection 4 mkandasection 5 Laston njemasection 6 Juma8. tHyoLosection i nsabwesub-section 1a thukutasub-section 1B mbawelasection 2 changatasub-section 2a kwethemulesection 3 kapichi

31st August, 2015 129

section 4 nchilamwerasection 5 chimalirosub-section 5B ngolongoliwasub-section 5c Boyidisection 6 Bvumbwesub-section 6a maggiesection 7 thomassection 8 mphukasection 9 nanseta9.BLantyresection 1 Lundusection 2 chigarusection 3 kunthembwesection 4 makatasection 5 kapenisection 6 kuntajasection 7 machinjirisection 8 somba10. mwanzasection 1 kandukusection 2 nthachesub-section 2a Govati11. nenosection 1 Dambesection 2 symon

Likongwesection 3 mlaulisection 4 cheku chekusub-section 4a Dondasub-section 4B kalupsya12. cHikwawa Lundusection 1 ngabusection 2 chapanangasub-section 2a ndakwerasection 3 makhuwirasection 4 kasisisection 5 katungasection 6 maseyasection 7 ngowesub-section 7 a masachesection 8 mlilima13. nsanJesection 1 mlorosection 2 tenganisection 3 chimombo

130 31st August, 2015

section 4 ndamerasection 5 nyachikadzasection 6 malemiasection 7 ngabusection 8 mbenjesection 9 makokoTOTAL 1 28 66 27

31st August, 2015 131

s. 11 seconD scHeDuLeoatH of office

“i……., do hereby solemnly swear/affirm to be faithful and loyal to the republicof malawi; to respect and uphold the constitution and all laws of the republic, touphold, promote and respect customary law prevailing in malawi in accordancewith the constitution and laws of malawi; to hold my office as paramountchief/traditional authority/sub-traditional authority as duly appointed and toperform and discharge the duties and functions of my office conscientiously to thebest of my ability. so help me God.”

132 31st August, 2015

s. 59 tHirD scHeDuLecoDe of conDuct

a traditional leader shall—(a) perform his functions in good faith, diligently, honestly and in a

transparent manner;(b) fulfil his role in an efficient manner;(c) not conduct himself in a disgraceful, improper or unbecoming

manner;(d) comply with any applicable legislation, policy and procedures;(e) act in the best interest of the people in the area of his jurisdiction;(f) promote unity among traditional communities;(g) not embark on actions that would create division within or among

traditional communities;(h) promote nation building;(i) not refuse to provide any service to a person on political or

ideological grounds;(j) foster good relations with organs of state;(k) promote the principles of an open and democratic society;(l) receive gifts in a transparent manner; and(m) not permit his political opinions or allegiance to influence—

(i) the functions of his office as a traditional leader; or(ii) the people in his area of jurisdiction in respect of which he was

appointed and recognized, as the case may be.

31st August, 2015 133

s. 29 fourtH scHeDuLepenaLties

134 31st August, 2015

No.1.

2.

3.

4

5.

OFFENCECreating a villagewithout theknowledge of adistrict council

Conductinginstallation orelevation of VillageHead to GroupVillage Headwithout theknowledge of adistrict councilSelling or illegallysnatching private orcommunalcustomary land

Refusing to complywith adeterminationlawfully made bysuperiors

Engaging in sexualimmorality

FirstInstanceWrittenwarning

Writtenwarning

Removalfrom officeand orderofrestitution

Verbalwarning


SecondInstanceSuspensionwithoutpay for aperiod notexceedingsix (6)monthsSuspensionwithoutpay for aperiod notexceedingsix (6)months

Writtenwarning

Removalfrom office

ThirdInstanceRemovalfrom office

Removalfrom office


FourthInstance

Removalfromoffice

PENALTIES

31st August, 2015 135

6.

7.

8.

9.

10.

Engaging in, aidingor abetting anotherperson in propertygrabbing

Preventing ordiscouragingsubjects fromparticipating indevelopmentactivities

Performing dutiesnegligently

Failing to performduties properlyassigned

Failing to obeyinstructionslawfully andproperly given by aperson havingauthority to givesuch instruction ordisplayinginsubordination byword or conduct

Writtenwarning

Writtenwarning

Verbalwarning

Verbalwarning

Verbalwarning

Removalfrom officeand order ofrestitutionwhere theproperty isin the handsof thetraditionalleaderWithholdingof honorariafor a periodnotexceedingsix (6)months

Writtenwarning

Writtenwarning

Writtenwarning

Removalfrom office




Removalfromoffice

Removalfromoffice

Removalfromoffice

136 31st August, 2015

11.

12.

13.

14.

Habitually takingintoxicating liquoror habit-formingdrugs to the extentthat it adverselyaffectsperformance ofduties

Making use orfailing to takereasonable care ofpublic property inhis custody orunder his charge orfailing to take suchsteps as are withinhis power to ensurethat reasonablecare is taken of anysuch property

Doing or causing orpermitting to bedone or connivingin any act which isprejudicial to theadministration,discipline orintegrity of thechieftaincyAttempting tosecure politicalintervention inrelation to positionor conditions ofappointment to thechieftaincy

Writtenwarning

Verbalwarning

Writtenwarning

Writtenwarning


Writtenwarning



Removalfrom office


Removalfrom office

Removalfrom office

Removalfromoffice

31st August, 2015 137

15.

16.

Being partisan

Making a falseclaim toGovernment



Removalfrom office

Removalfrom office

APPENDIX II

CENTRAL REGION CONSULTATIVE WORKHOPPACIFIC HOTEL – 9th AUGUST 2012

WORKSHOP PARTICIPANTS

Name Designation Address

Commissioners and Programme Officercommissioner Ligomeka Deputy chairperson Judiciarymrs. Gertrude Lynn Hiwa, sc Law commissioner Law commissioncommissioner makonokaya commissioner ministry of Local

GovernmentLate ms. a. ntodwa commissioner Dr. Janet L. Banda chief Law reform officer Law commissionmr. tony Lemucha programme officer Law commission

JudiciaryLate Justice manyungwa High court Judge p. o. 30244, Blantyre

Member of ParliamentHon. kayembe mp national assembly

p.o. Box 61, madisiHon. J. sendeza mp national assembly

p.o. Box 31100, Lilongwe

District Commissioners and Traditional Leadersmr H. Lende Dc’s office kasungu District council

private Bag 1, kasungusn.chief theresa kachindamoto traditional authority Dedza District assembly

p.o. Box 48, mtakataka, Dedza

GVH chinyamula Dedza District council p/a mbuka, DedzaHenrieta menyani Jere Dc’s office mchinji District council

p.o. Box 24, mchinjiisabel chakhame Dc’s office mchinji District council

private Bag 1, mchinjianthony zimba nkhotakota District council private Bag 48,

nkhotakotakossam kaphaizi traditional Leader min. of Local Govrnment

p.o. Box 52, kasungusen. chief mkanda traditional Leader min. of Local Govt

p.o. Box 226, mchinji

138 31st August, 2015

t/a khombedza traditional Leader min. of Local Govtp.o. Box 1, salima

annie Blandina phangwa traditional Leader min. Local Governmentp.o. Box 138, nkhotakota

GVH pulika area Leader kawale, Lilongwet/a Dzoole traditional Leader min. of Local Govt

p.o. Box 13, mponelachief malunjika traditional authoritystallichi mwambiwa Lilongwe city council p.o. Box 30396,

Lilongwe 3fannie msimuko Dedza District councilyuda chizuma traditional authority min. of Local Govt

kasungu District councilkasungu

redgson mkolombwe traditional authority salima District councilprivate Bag 15, salima

mcloud kadammanja traditional authority ntcheu District councilprivate Bag 1, ntcheu

samuel chikhala traditional Leader ntchisi District councilp.o. Box 1, ntchisi

pickford manyungwa traditional Leader ntchisi District councilp.o. Box 1, ntchisi

Non Governmental Organizationscharles mhango mHrc private Bag 378,

Lilongwe 3John soo phiri mHrcc p.o. Box 891,

Lilongweedward makuwira muslim association of p.o. Box 497,

malawi Blantyre noel mbowela ccJp/ tilitonse private Bag a208,

Lilongwemwai sandram ccJp private Bag a208,

LilongweViwemi chavula Giz-mGpDD private Bag 387,

Lilongwe 3Government Departmentsandrew mangawa misomali min. of Local Govt p.o. Box 30312,

Lilongwe 3Hastings Bota min. of Local Govt p.o. Box 30312,

Lilongwe 3Douglas mkweta min. of Local Govt p.o. Box 30312

Lilongwe 3isaac chiundira min. of Justice private Bag 333,

Lilongwe 3

31st August, 2015 139

Mediaowen Lupeska Journalist zodiak Broadcasting

station private Bag 312, Lilongwe

Namibia Study Visit: 23 August, 2012

attendance List Kolonicadhi T. A Meeting

Name Position

tate andreas amunyela s. traditional counciltate amunkete isah s. traditional counciltate titus kanime s. traditional councilmeme Johonna ashimbanga s. traditional councilmeme Hilma mulumendu s. traditional counciltate malakirt shoombe secretarytate Linus amukwa s. traditional counciltate ishmael nekwaya s. traditional counciltate nestor ipinge s. traditional counciltate erastus eilo Headmanmeme salini ashimbanga Headmantate alweendo shililifa Headmantate David nandinolya Headmantate Leonard mukengele messenger of courttate ishmael shikabe Headman tate andreas andinge Headmantate mateus kalumbu HeadmanJeremia shikundu Headmanmicheal shoombe Headmanrakkel sheya Headmanmaria nekwaya HeadmanJeremia shipingana HeadmanHilma mwaala Headman

Onganidjera T. A Meeting

Name Position

king Johannes Jafet His majesty the kingmrs. H. n. t. Haipinge secretary to the majesty the kingmr. sekeus shikongo chairperson of traditional authority

140 31st August, 2015

mr. nahum Joël Deputy chairperson of traditional authority

mr. Jason shefunyenya assessormr. petrus kathingo senior Headmanmrs. martha iileka senior Headmanmrs. Hileni iiyambo senior Headmanmr. suveleni kamati Deputy senior Headmanmrs. rauha kamati assessor mr. paulus kashingo assessormr. alfeus kangongo Deputy senior Headmanmr. Jeremia asino Drivermr. adreas ndakiukiamo Justicesmrs. othilie amunyela secretary of Headmanms. Victorina nambinga assessorms. irja mbago clerk of the courtmr. amon wutena messengers of the courtmrs. ester nantinda secretary of traditional authority

University of Namibia

Name Designationprofessor John Baloro the Deanprofessor Boyce wanda senior Lecturer

SOUTHERN REGION CONSULTATIVE WORKSHOPHOTEL VICTORIA, BLANTYRE: 27 SEPTEMBER, 2012

Name Designation Address

Commissioners and Programme Officercommissioner Justice chipeta High court Judge Judiciary

chairperson commissioner makonokaya commissioner min of Local Governmentcommissioner rodrick mateauma commissioner min of Local Governmentsnr. chief chikumbu commissioner

traditional Leader, mulanjeLate ms. a. ntodwa commissioner Dr. Janet L. Banda chief Law reform officer Law commissionmr. tony Lemucha programme officer Law commission

JudiciaryLate Justice manyungwa High court Judge p. o. 30244, Blantyre

31st August, 2015 141

Member of ParliamentHon. B. mlaka maliro Legal affairs committee private Bag 1, chikwawa

District Commissioners and Traditional Leadersmr. c. makanga District commissioner p/Bag 97, Blantyret.a. kapeni traditional authority chisenjere Headquarters

p. o. Box 49, Lunzu, Blantyre

mr. charles chibisa chief mulauli neno District, p.o. Box 11, neno

mr. a. chibwana District commissioner phalombe District councilp/Bag 32, phalombe

mr. smart Lans Gwedemula District commissioner mwanza District councilp/Bag 3, mwanza

trasizio yollamu t/a nthache mwanza District councilp/Bag 3, mwanza

mr. rodney simwaka District commissioner nsanje District councilp/Bag 1, nsanje

elestina yaaye m’mame Director of administration thyolo District councilp/Bag 5, thyolo

chief mandala traditional authority nsanje District councilp/Bag 1, nsanje

mr. felix ngoleka mkandawire District commissioner chikwawa District council, p/Bag 1, chikwawa

Laiyeck chiwalo phiri traditional authority phalombe District councilp/Bag 39, phalombe

mr. innocent robin Jamu t/a maoni chimwawa Headquarterschiradzulu

chief elina thomas traditional authority thyolo District councilmr. ellio Golden tambala t/a chamba machinga District

councilmrs. Violet kethy mpoya Hrmo zomba District council

p. o. Box 23, zombaamidu Jemus katuli traditional authority p. o. Box 17, ulongwekawali Bwanali traditional authority zomba District council

p. o. Box 23, zombaparamount chief Lundu traditional authority mbewe Headquarters,

p. o. Box 221, nchalo, chikwawa

mr. James Jones kanyangalazi District commissioner machinga District councilp/Bag 1, machinga

mr. Bennet francis nkasala District commissioner chiradzulu District council, private Bag 1, chiradzulu

mr. allick milanzi Director of administration neno District councilprivate Bag 11, neno

142 31st August, 2015

mr. Jack kafoteka nguluwe District commissioner mulanje District councilprivate Bag 9, mulanje

Non Governmental Organizationsms. Joyness Dziwani paralegal officer centre for Human rights

education advice & assistance, p. o. Box 30250, Blantyre 3

rev. Vincent chirwa rep. Justice and ethics evangelical association commission of malawi, c/o Bt. Baptist

church, p. o. Box 1283, Blantyre

mr. rafiq Hajat executive Director institute for policy interaction (ipi), p.o. Box e14, post Dot net, Blantyre

mr. Hassan nkata Development facilitator Development communication trust (Dct), p. o. Box 31110,chichiri, Blantyre 3

Brother Vincent makolija ccJp, Blantyre archdiocese p. o. Box 385, Blantyremr. micheal mmeya Desk editor p. o. Box 30408,

Blantyre 3ms. martha khungwa programme officer maknet – polytechnic

p/Bag 303, Blantyre 3cydric Damala programme officer Blantyre synod, church

and society programme, p. o. Box 413, Blantyre

mr. Henry nandolo District coordinator umunthu project, phalombe ipi, p. o. Box e14 post Dot netBlantyre

Government Departmentskillian remmie palika Land registrar ministry of Lands,

p. o. Box 2452, Blantyretikondane Vega information officer ministry of information

and civic education, p. o. Box 494, Blantyre

mr. mphatso matandika Legal officer Blantyre city councilprivate Bag 67, Blantyre

Mediapilirani tambala Journalist zodiak Broadcasting

station, p. o. Box 2322, Blantyre

31st August, 2015 143

chisomo ngulube senior editor mBc – tVp. o. Box 30133, Blantyre 3

ms. wezzie nungu reporter Daily times, Ginnery corner, scott road, p/Bag 39, Blantyre

NORTHERN REGION CONSULTATIVE WORKSHOPMZUZU HOTEL, MZUZU: 25 OCTOBER, 2012

Commissioners Name Designation Organization and

Addresscommissioner stuart Ligomeka Deputy chairperson min of Local Governmentcommissioner Gertrude Lynn Hiwa, sc Law commissioner Law commissioncommissioner chibwana commissioner chibwana and associatescommissioner s.makwangwala commissioner traditional Leader,

ntcheuLate commissioner mwabulambya commissioner traditional Leader,

chitipacommissioner r. santhe commissioner ministry of Justicemrs. eddah chavula programme officer Law commission

District Commissioners and Traditional Leadersmr. Dominic mwandira Director of administration p. o. Box 224, rumphit. a. mkumbira traditional Leader private Bag 1, nkhatabaymr. fred e. c. movete District commissioner p/Bag 1, nkhatabaysenior chief kachindamoto traditional Leader mtakataka Headquarters,

p.o. Box 48, mtakataka, Dedza

mr. michael chimbalanga District commissioner p. o. Box 1, chitipainkosi pickford mpherembe Jere senior chief emcisweni Headquarters,

p. o. Box 1, mpherembe, mzimba

inkosi mthwalo Jere chief p. o. Box 1, mthwalo, ekwendeni

mr. foster mhango traditional Leader p. o. Box 224, rumphimr. evans winner mwamlowe traditional Leader mlowe Headquarters,

p. o. Box 46, mlowesr. chief alfred kameme traditional Leaderchief mwilang’ombe traditional Leader nyungwe traditional

court, p. o. Box 35, nyungwe, karonga

mr. Lennox charles mwawembe District commissioner Likoma District councilp. o. Box 77, Likoma

mr. emmanuel Bambe District commissioner karonga District councilp. o. Box 35, karonga

sta kalonga traditional Leader karonga District councilp. o. Box 35, karonga

mr. moses owen chimphepo District commissioner mbelwa District councilp.o. Box 132, mzimba

144 31st August, 2015

JudiciaryHis worship cuthbert m. B. L. phiri magistrate mzuzu court House,

p. o. Box 12, mzuzuGovernment Departmentsmr. Harrison H. simfukwe senior antiquities officer ministry of tourism,

wildlife and culture, p/Bag 16, karonga

mr. Geoffrey G. p. mvula principal Lands officer Department of Landsp. o. Box 492. mzuzu

mr. mphatso kadaluka principal physical Department of physical planning officer planning, p. o. Box 106,

mzuzu mr. Godfrey shaba assistant community ministry of Gender,

Development officer children and welfare, community Development office, p. o. Box 86, mzimba

Non Governmental Organizationsmr. manson chagara paralegal officer church and society

p. o. Box 112, mzuzumr. Hamis Lack abdullah regional secretary muslim association of

malawi, private Bag 201, Luwinga, mzuzu

mr. william msango munkhondya field officer ccJp – mzuzu Diocesep. o. Box 840, mzuzu

mr. paul mvula project manager church and societyLivingstonia synodp. o. Box 112, mzuzu

Mediamr. steve zimba reporter zodiak Broadcasting

corporation, p/Bag 312, Lilongwe

mr. Hastings khomo cameraman mBc–tV, p. o. Box 61, mzuzu

ms. karen msiska Journalist Blantyre newspapers Limited, p. o. Box 637, mzuzu

mr. edwin nyirongo reporter nation newspaper, p/Bag 93, mzuzu

mr. andrew mkonda Banda assistant information malawi news agency officer – reporter (mana), p.o. Box 22,

mzuzumr. chimbizga chizona msimuko Deputy Bureau chief mBc – tV, p. o. Box 61,

mzuzu

31st August, 2015 145

NATIONAL WORKSHOP SUNBIRD CAPITAL HOTEL, LILONGWE: 14-15 MARCH, 2013

Name Designation Organization and Address

Commissioners and Programme Officerscommissioner Justice chipeta chairperson commissioner stuart Ligomeka Deputy chairperson mrs. Gertrude Lynn Hiwa, sc Law commissioner commissioner chibwana commissioner commissioner makonokaya commissioner commissioner makwangwala commissioner commissioner mateauma commissioner Late commissioner mwaulambya commissioner Late commissioner ntodwa commissionercommissioner r. santhe commissioner commissioner chikumbu commissioner mr. allison mbang’ombe programme officermrs. eddah chavula programme officermr. tony Lemucha programme officer

JudiciaryJustice ivy kamanga Judge High court, p/Bag 15,

Lilongwe

Chief Executives, District Commissioners and Traditional Authority ta tambala traditional Leader c/o machinga Dcta chiwalo phiri traditional Leader phalombeparamount chief Lundu traditional Leader mbewe Headquarters

p. o. Box 221, nchalo, chikwawa

kyungu XXiV mwakabanga iii traditional Leader p. o. Box 2, kasoba, karonga

ta nkumbira traditional Leader p. o. Box 1, nkhatabayta kaphaizi traditional Leader private Bag 1, kasungurev. moses owen chimphepo District commissioner mbelwa District council

p.o. Box 132, mzimbamrs. sphiwe mauwa District commissioner p. o. Box 149, Dedzamrs. theresa kachindamoto traditional Leader p.o. Box 410, Dedzasenior chief msowoya traditional Leader chinyolo Headquarters,

p. o. Box 5, mzokotochief kapeni traditional Leader chisenjere Headquarters

p. o. Box 49, Lunzu, Blantyre

146 31st August, 2015

mr. paul carlos kalilombe District commissioner Lilongwe District councilp. o. Box 93, Lilongwe

mr. emmanuel ted nandolo chief executive Blantyre city councilp/Bag 67, Blantyre

chief kalumba traditional Leader p. o. Box 1507, Lilongwe

Non Governmental Organizationssheikh Dr. imuran mahomed chairman public affairs committee

c/o p.o. Box 280, zombamr. charles mhango Director – civil and Human rights

political rights commission, p/Bag 378, Lilongwe 3

mr. John soo phiri capacity Development malawi Human rights officer resource centre, p. o.

Box 891, area 9/190, Lilongwe

mr. Gregory mtemanyama programme coordinator Blantyre synod, church and society, p. o. Box 413, Blantyre

mr. edward makuwira administrator muslim association of malawi, p. o. Box 497, Blantyre

mr. charles Govati trustee maseko Gomani trustmr. chibondo researcher maseko Gomani trustDr. ubink Janine researcher Leiden university,

morskade 18, 2332 6X, Leiden, the netherlands

ms. Victoria Huwa ccJp, p/Bag a204, Lilongwe

Government Departmentsmr. mphatso matandika Legal services manager Blantyre city council

p/Bag 67, Blantyremr. chikhawo L. k. mbewe chief administration officer Lilongwe city council

p. o. Box 30396, Lilongwe 3

mr. zeru alfred mwandira principal community ministry of Gender,Development officer p/Bag 330, Lilongwe 3

tressa senzani senior Deputy secretary ministry of Lands and Housing, p/Bag 311, Lilongwe 3

mr. pilirani Bangula Lands officer ministry of Lands and Housing, p/Bag 311, Lilongwe 3

mr. sebastiano sentala Director office of the president and cabinet, p/Bag 301, Lilongwe 3

31st August, 2015 147

mr. peter chitedze Director national registration Bureau, private Bag B318, Lilongwe 3

mr. s. sumaisi Director of Human min of Local Governmentresource management p. o. Box 30312,

Lilongwe 3

Mediamr. Bright mhango staff reporter nation publications

Limited, p/Bag B419, area 4, Lilongwe

mr. william kumwembe reporter zodiak Broadcasting station, p. o. Box 1054, Lilongwe

mr. Goodwin Daniel Banda cameraperson mBc tV, p. o. Box 162,Lilongwe

marie peace kambeja reporter/editor mBc tV, p. o. Box 162, Lilongwe

mr. macdonald thom reporter Blantyre newspapers Limited, p. o. Box 273, Lilongwe

mr. charles Vintula reporter mBc – tVp. o. Box 162, Lilongwe

mr. steven Balaleya reportermBc – tV p. o. Box 162, Lilongwe

148 31st August, 2015

Law Commission Report No. 28

MALAWI LAW COMMISSION

REPORT OF THE LAW COMMISSIONON THE

REVIEW OF THE CHIEFS ACT

August, 2015

ISBN: 978-99908-85-11-8

Printed by THE GOVERNMENT PRINTER, Lilongwe, Malawi

Report - Chiefs Act WIP - lawcom.gov.mw

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Transcript of Report - Chiefs Act WIP - lawcom.gov.mw