By Deogratias Mmana:
A chieftaincy court case involving Group Village Head Chibwana Nsamala of Balaka District has dragged for 27 years, with no light of justice at the end of the tunnel.
In the case, Annie Makaniko, backed by Traditional Authority (TA) Kalembo—who are first and second defendant, respectively— argue that Twaha Msamala, Joligi Kadango and Rashid Nembo— first, second and third claimant, respectively— snatched the chieftaincy of group Village Head Chibwana Msamala from Makaniko.
The case is at a level where witnesses have to submit evidence to the court. It has gone through several adjournments and three injunctions since 1996.
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The case appears in the High Court of Malawi as Civil Cause Number 201 of 2020 before Judge Michael Tembo.
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Chronology of events shows that a commission of inquiry on the chieftaincy of Group Village Head Chibwana Msamala was set on July 29 1996 and that, on October 1 1996, a letter was issued, instructing TA Kalembo to facilitate the installation of Kinolosi Grant Mtupa as Group Village Head Chibwana Nsamala.
Skeletal arguments, as filed by Lincoln Edwards & Company on March 20 2023, indicate that Makaniko is the rightful heir to the throne because she is a niece to the deceased chief, as opposed to Twaha Msamala, who is the son to chief Msamala.
The skeletal arguments also indicate that, according to the customary law of the Yao tribe, a niece or nephew of the demised chief is the lawful and rightful heir to the throne and not son or daughter.
According to the skeletal arguments, due to lack of adequate nieces and nephews who could ascend to the chieftaincy as well as hostile environment, Apiti Kulayaga Liwewe, who is sister to TA Nsamala, who settled at Chilanga headquarters, asked him to offer him a male child to act as candidate for the chieftaincy until the time they would have sufficiently reproduced to have a chain of nephews and nieces to choose among themselves a rightful successor of group Village Head Chibwana Nsamala.
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Later, the family had reproduced and had adequate nieces and nephews, such that it chose Kinolosi Grant Mtupa as successor to the throne.
Kinolosi Grant Mtuwa was also supported by the commission of inquiry in 1996.
When he died, the family chose Annie Makaniko to replace her.
But the other family members in Bazale Village argue that the son of TA Chibwana Nsamala should take over the chieftaincy of Group Village Head Chibwana Nsamala.
“This position is wrong in law. It is clear that such a person could never have the support of the majority of the people of Chilanga headquarters, the area of jurisdiction of the office in dispute. Such a person will be a total stranger to the inhabitants of Chilanga,” the skeletal arguments filed by Lincoln Edwards & Company read.
But lawyer for the claimants, Cassius Chidothe of Chidothe, Chidothe & Company, argued that, on December 10 2009, the court invalidated the installation of Kinolosi Grant Mtupa as Group Village Head Chibwana Msamala and determined that Amida Msamala was the rightful heir to the chieftaincy.
When Amida died, the family appointed Twaha Msamala, who is a brother to late Amida and son to former TA Msamala, to become Group Village Headman Chibwana Msamala.
According to Chidothe, Makaniko is challenging the appointment of Twaha, claiming that she is the niece to Mtupa and the rightful successor.
On April 4 2023, Chidothe asked the court to grant “an order of permanent injunction” restraining Makaniko and TA Kalembo from interfering with Twaha.
Seeing that the case is taking long, the defendants wrote the Attorney General (AG), High Court Registrar and the Ministry of Justice and Constitutional Affairs for help.
“We write in accordance with the public notice which stated that a Judiciary Complaints Management Committee was constituted in your office.
We, therefore, take this opportunity to bring to your attention our case, which has taken quite a long period for the verdict to be passed. We, as ordinary citizens in the village, have exhausted our resources in order to get legal redress, to no avail,” the letter, which Annie Makaniko signed, reads.
Makaniko wrote another letter to the AG, who responded through a letter dated August 26 2020, reference number MJCA/AG 014.
“I acknowledge receipt of your letter of 24th August 2020. Please engage a lawyer to assist you,” the letter, which former AG Chikosa Silungwe signed, reads.
On November 21 2020, the Chibwana Msamala clan, through James Basikolo, also wrote the Secretary for the Ministry of Local Government for intervention.
“We write to advise your good office to intervene in a chieftainship wrangle pertaining to Group Village Headman Msamala in Traditional Authority Kalembo. The wrangle dates back to 1996, when the matter was fully resolved by the regional administrator, South, Mr. Nelson Tchuthi, on an open ground at Chilanga headquarters where all parties concerned were present.
“The other party, which is being led by Twaha Msamala, Joliji Kadango and Rahid Nembo, has ever since been delaying the installation of Group Village Msamala by obtaining court injunctions,” the letter reads.
The then regional administrator for the South Nelson Tchuti, who chaired a meeting at Chilanga open ground on July 29 1996, observed that the tradition of appointing a son from Bazale to be Group Village Head Chibwana Msamala neither received support nor was it popular.
“Hence the history of Chibwana Msamala from Bazale has come to an end with immediate effect… This means that Group Village Head Chibwana Msamala would, from this point on, be coming from the Liwewe descendants,” minutes of the meeting read.
Lawyer for the defendants, Hardy Mwawa, said he needed to get facts first before he could comment on the issue.
“I need to get facts from the file,” Mwawa said.
Lawyer for the plaintiff, Cassius Chidothe, was not available to respond to our questionnaire.
Supreme and High Court Registrar Kondwani Banda said the court can act if it is moved.
“There is nothing that the court can do. The court must be moved for it to act,” Banda
Meanwhile, Human Rights Defenders Coalition Chairperson Gift Trapence has asked the Chief Justice to address factors that contribute to the delay of cases because justice delayed is justice denied.
“This is not the only case taking long to be concluded. Our justice system should respond administratively to speeding up the cases.
“We are calling upon different institutions that play key roles in the judicial system to resolve such issues. It is our expectation that the Chief Justice and the Ministry of Justice will address bottlenecks in the justice system,” Trapence said.
