Post-colonial theory

Malawi achieved independence from Britain in 1964. Macdara Ó Drisceoil looks at the effects of colonialism on the country’s justice system.

In Decolonising the Mind, Ngugi wa Thiong’o described European colonialism in Africa as leading to a system of cultural alienation in which the colonised reject their local languages and traditions, and in which the imperialist tradition is maintained by the native ruling classes through a culture of ‘parrotry’, which is enforced on the ‘restive population’ through institutions such as the police and the judiciary.

Ngugi wrote that imperialism is a “cultural bomb” that annihilates “a people’s belief in their names, in their languages, in their environment, in their heritage of struggle, in their unity, in their capacities and, ultimately, in themselves”.

On national culture

Following independence, Anglophone colonies (such as Ireland and Malawi) retained the entire corpus of laws introduced during the period of imperial domination: in Ireland, through article 73 of the 1922 Constitution and, in Malawi, through retaining the colonial era Penal Code (enacted in 1930).

This included vagrancy laws contained in sections 180 and 184 of the code, notwithstanding the fact that they were introduced to protect the interests of colonial landowners and ensure an abundant supply of cheap labour on European estates. While imprisonment was an unknown concept in pre-colonial Malawi, it was to become an integral part of both the colonial and independent systems of government.

Nyasaland (present-day Malawi) was described by the Scottish historian John McCracken as an “overwhelmingly racist” society. The attitude of the European settler population to the local population is exemplified by a writer in the settlers’ newspaper, the Central African Times, in 1906, who complained of local people cycling bicycles, and demanded that “some control [should be] exercised over native budding cyclists” as “the principal streets of Blantyre are not intended as the playground of native cyclists”.

Orton Chirwa – the founder of the Malawi Congress Party (MCP) and the first black Malawian barrister – was among a group of nationalists who campaigned against the federation of Nyasaland, Northern Rhodesia (present-day Zambia) and Southern Rhodesia (present-day Zimbabwe), which was introduced in 1953, despite strong opposition in Nyasaland because of fear of the “entrenchment of settler rule”.

In 1959, a commission of enquiry led by Lord Devlin was tasked with investigating political disturbances and the detention without trial of nationalists following the declaration of a state of emergency. Despite attempts to mollify its contents, the commission (in its final report) was highly critical of the colonial administration’s policing, describing Nyasaland as a “police state”.

Kamuzu Banda returned to Malawi in 1958, after 43 years of studying and working as a doctor in America, Britain and Ghana, to a choreographed welcome from thousands of Malawians, subsequently mythologised as spontaneous and sincere.

In 1964, Banda became the first president of independent Malawi, which he turned into a one-party state. Chichewa was to become the dominant language and culture, notwithstanding the huge diversity of languages in the country, with the northern region suffering the brunt of Banda’s autocratic cultural policies. Malawian writer Emily Mkamanga (herself a northerner) described in Suffering in Silence how the repressive colonial system was replaced, in 1964, by a “harsher repressive government” under which women suffered particularly.

In 1964, at the government’s first cabinet meeting, it was agreed to amend the constitution to introduce detention without trial. The following year, legislation was introduced prohibiting the arrest by the police of members of the MCP’s paramilitary wing, the Malawi Young Pioneers. Section 10 of the Young Pioneers Act stated that every Young Pioneer “is granted all the powers, duties, and protection of a police officer acting in the execution of his duties”.

In his prison memoir, And Crocodiles are Hungry at Night, Jack Mapanje writes that, when Banda put the Young Pioneers above the police, it unleashed chaos; the prisons were “choked with thousands of dissenters” as Banda built a new prison in every district; and that victims were “neither tried nor charged with specific offences”, but “languished in prisons indefinitely”.

National consciousness

In 1966, Malawi was declared a republic under a new constitution, and the comprehensive bill of rights contained in the 1964 constitution was repealed.

Section 8 of the 1966 constitution stated that the president shall act “in his own discretion and shall not be obliged to follow advice tendered by any other person”.

Section 9 stated that the president of Malawi “shall be Ngwazi Dr H Kamuzu Banda, who shall hold the office of president for his lifetime”.

Banda also introduced legislation prohibiting women from wearing trousers (Decency in Dress Act 1973), banned over 840 books (Censorship and Entertainment Act 1968), declared men with long hair “idle and disorderly” (section180(g) Penal Code, amended 1973), and created a climate in which the population was terrified of criticising the government, with traditional pounding songs being one of the last forms of political dissent.

Africanisation of state institutions came slowly to Malawi: the judiciary continued to be dominated by Europeans, including James John Skinner from Clonmel, who served as Chief Justice of Malawi from 1970 to 1985. He had previously lived in Zambia, where he assisted Kenneth Kaunda (first president of Zambia, 1964-1991) in the fight for independence.

A white-Irish African nationalist serving as chief justice in autocratic independent Malawi demonstrates the complexity of the continuing colonial influence on African states following independence.

It is estimated that, during Kamuzu Banda’s time in power, there were approximately 250,000 political prisoners out of a population of 8.5 million. The Public Order Act provided for the detention without warrant of any person where it was considered necessary for the preservation of public order.

Detention without trial was frequently justified on the basis that it was for the safety of the detainee – an argument that continues to be used today in court by prosecuting police officers when opposing bail applications.

The basic confrontation

In 1961, the MCP manifesto had criticised the colonial government for subjecting its members to arbitrary arrest and detention without trial, and proclaimed its commitment to an independent and impartial judiciary and the maintenance of the rule of law.

Emily Mkamanga wrote that Kamuzu Banda betrayed the 1961 MCP manifesto by introducing indefinite detention without trial, which she described as causing mental torture.

This continues today, with many suspects held on remand in overcrowded prisons for years without any indication of a trial in the near future, and with no idea how long their detention is likely to last. Recently, a murder suspect – released after 14 years awaiting trial in prison – expressed his amazement at being released, as he had expected to die in prison.

Orton Chirwa was among six cabinet members who opposed Banda’s increasingly autocratic system of government, for which he was forced into exile in 1964. He and his wife were captured by Malawian security forces in 1981 in neighbouring Zambia.

He was found guilty of high treason by chiefs, following a trial before a traditional court at which defence lawyers were prohibited. He was sentenced to death, which was commuted to life imprisonment, and he died in inhumane conditions in Zomba prison in 1992.

The year before this, poet and academic Jack Mapanje had been released after spending four years in Mikuyu prison without being charged with any offence or provided with any reason for his arrest. He was eventually released with the assistance of the Irish priest Fr Pádraig Ó Máille.

Above all, dignity

Colonial-era vagrancy laws came under scrutiny in 2017, when the Malawian High Court found that the vagrancy law (‘rogue and vagabond’), pursuant to section184(1)(c) of the Penal Code, was an unconstitutional violation of human dignity.

This provision contained the offence of being in a public place in circumstances that led to the conclusion that the person is there for an “illegal or disorderly purpose”. The applicant had been selling plastic bags in an effort to eke out a living: he had failed to provide a satisfactory account to the arresting police and spent three days in police custody.

Homeless children and poor adults are regularly subjected to police-sweeping exercises, in which they are arrested for the nebulous offence of being idle and disorderly, contrary to section 180 of the Penal Code. In such cases, suspects are held in police stations without food, without being taken to court, or without being formally charged.

Vagrancy laws were used during the colonial period as a means of control over the local population, to consolidate autocracy during the period of one-party rule, and are in active use today as a means of preventive detention against the poor.

Arbitrary arrest and detention without trial have characterised Malawi’s criminal-justice system since the colonial period. Constitutional and legislative changes have had very limited effect in changing norms, while the continued use of vagrancy laws against poor Malawians demonstrates Ngugi wa Thiong’o’s description of the ‘parrotry’ of State institutions of the colonial system.

In 1993, a referendum was held in which 63.5% voted to introduce multi-party democracy, despite violence and intimidation by the Malawi Young Pioneers. The results reflected a strong regional divide in Malawi, with northern and southern regions voting overwhelmingly to end the one-party state (84.4% and 83.5% respectively). In contrast, in the central region – Kamuzu Banda’s place of birth – 65.5% voted to maintain the status quo.

While autocracy brought with it regressive constitutional change, so too did democracy: following the first multi-party election in 1994, Malawi’s parliament choose to repeal section 64 of the 1994 constitution (which provided for a system of recall by constituents of poorly performing MPs), and with it ushered in an era of impunity.

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