Malawi Country Profile

Judicial System

Individual Corruption

Since 1994, the Magistrate court and the High court have taken over the functions of the old Traditional Court, but formal jurisdiction continues to refer to traditional law as the main regulating principle. Therefore the courts often rely on traditional authorities for defining the content of the law. Moreover local leaders are often involved in solving local conflicts before they reach the courts, and individuals may experience that pressure is put on the parties to accept the pronounced solutions.

There is a general lack of capacity in the judiciary in Malawi, and cases are often delayed, postponed, and dockets and documents misplaced or lost. This leaves the system open to manipulation by lawyers. However, the Legal Profession's Disciplinary Committee is believed to be fairly independent and has a strong voice in fighting for public and private accountability.

Business Corruption

The World Bank & IFC Doing Business 2010 reports that the cost of contract dispute settlement relative to the value of the contract is one of the highest in the world. According to US Department of State 2009, the processing of commercial cases has improved significantly, although the enforcement of judgments continues to pose a problem. Both foreign and domestic investors have access to the legal system. Foreign court judgments are accepted and enforced if they are registered in accordance with established legal procedure.

Many companies have experienced demands for bribes to secure a favourable court ruling. In general, companies tend to avoid courts if at all possible and use alternative dispute resolution to resolve disputes. In contrast to the above, business executives surveyed in the World Economic Forum Global Competitiveness Report 2009-2010 indicate that the level of independence of Malawi's judiciary constitutes a competitive business advantage.

Political Corruption

According to the US Department of State 2009 Malawi has an independent judiciary with little government interference. On the other hand, the Bertelsmann Foundation 2010 states that courts are under constant pressure from legislators and the executive, but can still rule in opposition to the interests of the government or the executive. The judiciary shows a lack of knowledge of the Corrupt Practices Act, particularly at the magistrate level.

Frequency

The World Bank & IFC: Doing Business 2010:
- To enforce a contract in a commercial dispute, a company has to go through 42 procedures, taking an average of 432 days at a cost of 142.4% of the claim, compared to a regional average of 39 procedures and 644 days at a cost of 49.3% of the claim.

World Economic Forum: The Global Competitiveness Report 2009-2010:
- Business executives give the judiciary's level of independence from influences of government, citizens, or companies a score of 4.9 on a 7-point scale (1 being 'heavily influenced' and 7 'entirely independent'), constituting a competitive business advantage.

- Business executives give the efficiency of the legal framework for private companies to settle disputes and to challenge the legality of government actions and/or regulations a score of 3.7 and 4 respectively on a 7-point scale (1 being 'extremely inefficient' and 7 'highly efficient').

The World Bank & IFC: Enterprise Surveys 2009:
- 74% of companies believe the court system is fair, impartial and uncorrupted.

Afrobarometer: Summary of Results Malawi 2008:
- 55% of the citizens surveyed believe that most or all judges and magistrates are involved in corruption.

- 40% of the surveyed citizens believe that people are often or always treated unequally under the law.

The World Bank: Governance and Corruption Baseline Survey 2006:
- Almost 50% of both households and companies surveyed believe corruption is an obstacle to using the court system.

- 27% of companies surveyed said they were expected to pay bribes to court personnel in order to obtain a favourable ruling.

- The average length of civil cases indicated by companies surveyed was 4.95 months.

- 56% of companies surveyed reported using alternative dispute resolution mechanisms.