A Glimpse into a Marriage of a Traditional Court and Formal Law

Like most patriarchal African cultures, succession norms often dictate that boys inherit more, or everything, while girls are given a smaller portion or shepherded into marriage, where their portion is said to be waiting. That is what you will find if you search the internet about patriarchal African cultures, succession, and gender.

A Chief’s Unlikely Embrace of Formal Law

But in Malawi, we visited a patriarchal community and interviewed the chief, who is both a formal professional employee and a cultural leader, to understand their perspective on the journey of access to justice for marginalized people in informal justice institutions. The chief told us about how he is improving his community by incorporating formal law into cultural dispute resolution. During this interview, he told us how he had relied on the Deceased Estates (Wills, Inheritance and Protection) Act to protect the rights of a female petitioner before his court. The result of the ruling was that the woman, who would otherwise not have been entitled to an equal share, received it.

Why Did the Community Accept the Ruling?

This brought a question to our minds: why would people said to be deeply patriarchal accept this seemingly anomalous ruling? Some argue that people have lived with their cultures so long that they are unwilling to accept anything contrary to govern them. This assumes that formal laws and customs are enemies on opposing sides. Part of the answer is that traditional leaders carry more weight than is formally recorded.

From our conversation with the chief and some of his cultural leaders, they implied that, from our stakeholder mapping activities, the data we gathered pointed to one fact: people in these communities are still willing and open to follow traditional authorities’ rules. They said this is because people in these communities understand that traditional leaders want what is best for their people, even if they sometimes do not know how best to deliver it. Because of this, when the chief rules, people listen.

The Gap in the Justice Chain

The chief was, however, quick to point out that the practice is not applied at every level of the referral justice structure used in dispute resolution. As the chief put it, the principal reason “is lack of legal awareness and experience in interpreting the law.”

While he and his fellow cultural leaders are experts in customs, not many are like him, being able to freely use and understand English—the language in which formal laws are drafted and interpreted—while he relies on it for his formal occupation.

Not Unwilling — Unequipped

They therefore have little chance to learn how state law works, what it says, or how it can sit alongside custom to produce fairer outcomes. They are not unwilling; they are unequipped. That is why the anomaly worked at the top and stalled at the bottom.

The Missing Ingredient

The missing ingredient is not cultural surrender. It is legal literacy at every level, delivered in local language, so traditional leaders can understand that customs are not being replaced by a colonial idea but complemented by the will of the Malawian people as expressed in Malawi’s laws. Formal law does not have to be an enemy of tradition. It can be an ally. When traditional leaders can read, interpret, and explain formal law alongside custom, rights become easier to perceive as fair and just, and easier to embed in customary rulings.

Empowering chiefs and traditional leaders with accessible legal information in their own languages will help align customary justice with formal law by positioning them as justice champions in their communities who can balance justice outcomes for marginalized groups and communities.