El comercio interior antes de la Revolución Industrial

In Malawi today, as in many other African countries, there remains as a legacy from the colonial period, a duality within the legal system. On one hand there is state law and on the other customary law. Malawi’s Constitution seems to define families in terms of nuclear families through statements, such as, “all men and women have the right to marry and found a family” and “no person shall be forced to enter into marriage” (Malawi Government, 2004, section 22). Furthermore, within customary marriage law, there are two customary family law systems: matrilineal and patrilineal. Under the patrilineal system lobola

(bridewealth) requirements have to be fulfilled for the marriage to be deemed valid and children to be affiliated with the husband’s clan. Conversely, under the matrilineal system, chinkhoswe (traditional marriage) validity is based on the consent of each party’s nkhoswe (marriage advocate) and children are affiliated with the wife’s clan (Mwambene, 2012, pp. 127-129).38

Although the Malawi Constitution, established in 1994 at the onset of multiparty democracy, recognises customary law, it also overrides both the patrilineal and the matrilineal customary family law systems in relation to child custody. The Constitution determines that both spouses have equal rights to the custody of children regardless of how they were married and that children have the right to be raised by their parents (Malawi Government, 2004, sections 22- 23). However, the Constitution also protects the right to culture (Malawi Government, 2004, section 26), an interpretation of which is that “the state has a duty to allow people to participate in the culture of their choice, including a duty to uphold the institutions on which that culture is based” (Bennett, 2006,

38 _{Chinkhoswe is the term for the traditional marriage ceremony in both matrilineal and}

patrilineal communities but is sometimes referred to as an engagement ceremony nowadays as it is often followed by a church ceremony (chikwati) and in Christian terms the couple are not considered married until they have had a church wedding (Dzama, 2005, pp. 2-3).

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as cited in Mwambene, 2012, p. 133). This is supported by section 200 which confirms that customary law in practice prior to the Constitution coming into force “shall continue to have force of law” (Malawi Government, 2004, section 200).

While legal pluralism could cause confusion, section 200 seems to assert that the Constitution supersedes any inconsistent laws:

Except in so far as they are inconsistent with this Constitution, all Acts of Parliament, common law and customary law in force on the appointed day shall continue to have force of law, as if they had been made in accordance with and in pursuance of this Constitution (Malawi Government, 2004, section 200).

Furthermore, section 11 states “current norms of public international law and comparable foreign case law” (Malawi Government, 2004, section 11/2c) must also be regarded when interpreting the Constitution. Additionally, Chapter XI incorporates the function of the Malawi Human Rights Commission. When these aspects of the Constitution are considered together with the fact that Malawi is a signatory to the Convention for the Rights of the Child, it is logical to assume, as Lea Mwambene did, that “customary laws that are inconsistent with the Constitution are invalid and unenforceable” (Mwambene, 2012, p. 134). However, after reviewing legal case studies and court decisions in relation to child custody in Malawi since 1994, Mwambene (2012, p. 138) discovered:

Where the requirements of lobola or chinkhoswe were met, custody of children is mostly awarded to fathers or to mothers, respectively. This leads to the conclusion that courts work on the assumption that fathers will retain their children on divorce in the patrilineal systems and that mothers will retain custody of their children in matrilineal systems.

Thus, it would seem that children’s best interest were being disregarded and indeed Mwambene (2012) maintains that, in relation to children’s rights, the courts had paid only ‘lip service’. However, she also acknowledges that judges

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are probably influenced by cultural beliefs and thus consider, for example, that it is in the best interest of the children that custody is awarded to the mother if the family are from a matrilineal group and to the father in patrilineal groups.

Mwambene (2012) does not mention interlineage marriages so there was no discussion about where the best interests in terms of child welfare of such marriages would lie. Those with a matrilineal mother and patrilineal father could have both parties claiming traditional rights to the children although the father’s claim would depend on bridewealth being paid and, as will be discussed in Chapter Seven, most matrilineal families would not accept bridewealth for their daughters. Conversely for children with a patrilineal mother and a matrilineal father, neither side could claim traditional rights unless bridewealth was paid, but this raises issues about deciding custody based on a patrilineal custom paid by a matrilineal family and whether it is in the best interest of the children. Furthermore, the cases in Mwambene’s (2012) article all relate to divorce with no mention about custody of children in cases concerning the death of one parent. Perhaps it is assumed that the remaining parent will automatically take care of the children, particularly if it is the widowed mother, but as will be shown with my case studies in Chapters Seven and Eight, this is not necessarily what happens.

Thus, it would seem that customary law, even when inconsistent with the Constitution, is still very influential in court decisions. Furthermore, as most Malawians are likely to be more conversant with customary practices than constitutional law, they may not be aware of their constitutional rights which could leave them vulnerable to abuse. Problems often occur, for example, following the death of a husband, when his relatives assert their property inheritance rights based on customary law above the widow’s constitutional rights. As discussed in the next section, widows are often left in very precarious situations.

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