Chiefs caught off-guard

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For all the good intentions chiefs have when they make by-laws in their respective jurisdictions, they have no legal mandate to formulate them, legal experts say.

And the Ministry of Justice says it is not aware that chiefs are making by-laws in their areas.

Two lawyers from the Ministry of Justice told a Malawi Law Commission Meeting in Salima recently that they are surprised that chiefs are making by-laws.

“Chiefs are legally not supposed to be making by-laws. That is the responsibility of councils. So, whatever by-law they make, is illegal,” said one of the lawyers.

The Salima meeting was aimed at identifying laws that do not speak to each other and frustrate efforts to end gender-based violence against women and girls.

Solicitor General and Secretary for Justice Allison Mbang’ombe expressed ignorance in a separate interview that chiefs make by-laws.

“This is news to me. I don’t know anything. But since they [chiefs] are under the Ministry of Local Government, find out from them,” he said.

Senior lecturer in Foundational Law Department at the University of Malawi (Unima) Ngcimezile Mbano-Mweso also said chiefs have no legal power to make laws.

She said Section 6 of the Local Government Act only gives councils the mandate to make by-laws and that although chiefs are part of the councils, they are non-voting (ex-officio) members.

Said Mbano-Mweso: “The legal implication of lack of mandate means that the purported by-laws are not legally valid or enforceable.”

A number of chiefs have been making by-laws, especially on girls aimed at assisting them to continue with their education.

In September last year, Traditional Authority Mizinga of Machinga District told an Amref Africa-sponsored meeting that he established by-laws to help girls to continue with education.

Senior Chief Kachindamoto of Dedza, who has made similar by-laws, said the by-laws are necessary in managing their areas.

The acclaimed champion of girls’ education said she saw nothing wrong with the laws that benefit girls and the whole community and are formulated by the community.

She said: “Each by-law has a remedy agreed upon by all. So, those breaking the by-laws know the consequences, that they would pay a chicken or a goat or money. The by-laws are not formulated secretly.”

Kachindamoto further said parents who allow their daughters to get married pay a fine which is used to buy books for girls withdrawn from marriage and sent back to school.

Senior Chief Chikumbu of Mulanje expressed surprise about the illegality of by-laws they formulate.

“They are there to ensure that there is discipline and order in our areas. And when making these by-laws, everyone is involved, including health and security officials,” she said.

Chikumbu disclosed that they have by-laws on early marriages and on sending children to vend instead of sending them to school.

Senior Chief Kameme of Chitipa, also, defended by-laws  

saying they have helped to bring peace and harmony.

“If we were not tough through by-laws, many girls would be dropping out of school to get married. But men are afraid of breaking the by-laws and paying fines, which has helped our girls to be in school,” he said.

Minister of Local Government Blessings Chinsinga admitted in an interview that he knows that chiefs are making by-laws.

He said: “It has become more or less a norm for chiefs to make by-laws on various issues to facilitate social order in their respective areas of jurisdiction. The observation that the by-laws that chiefs make are illegal could be quite right. But the vacuum below the district level makes it imperative for us to explore ways and means of legitimising the by-laws that chiefs make in a well-defined sphere of social organisation, especially below the district level.”

However, Chinsinga warned that discontinuing the current practice could be a recipe for disaster. He blamed bureaucracies which frustrate councils to make by-laws that could bring order in places like traditional authorities.

Malawi Human Rights Resource Centre director Emma Kaliya said she is aware of the illegality of the by-laws that chiefs make.

However, she said looking at their importance in the management of social order at local level, they should just be given another name.

“They should not be called by-laws, but maybe just some norms because they do not go through legal processes,” said Kaliya.