1 Courting Custom: Regulating Customary Dispute Settlement in Rural South Africa and Malawi 1 Janine Ubink 2 and Sindiso Mnisi Weeks 34 Keywords Informal justice and community-based conflict management; Legal pluralism; Gender and women’s rights; Africa: South Africa; Malawi Abstract The continued relevance of customary law for the regulation of the daily lives of Africa’s citizens poses serious governance challenges to sovereign states, such as how best to regulate customary dispute settlement. While identifying largely similar problems and naming access to justice as key goal for legislative change, South Africa proposed to enhance and regulate the position of its traditional courts, whereas Malawi opted for the creation of hybrid local courts that combine characteristics of regular state courts and customary fora to be the main avenue of customary law cases. This paper analyzes the strengths and weaknesses of both approaches and displays how the two countries’ historical and political contexts enable and constrain their regulatory choices in the field of customary dispute settlement, as well as influence the risk and benefits of the various options. In this respect, the political power of the traditional leaders is a significant determinant. 1. Introduction Recent decades have demonstrated the continued relevance of customary law for the regulation of the lives of Africa’s citizens. Most of these citizens navigate family relations, access to natural resources, and settlement of disputes through customary law as administered by family heads, elders and traditional leaders. The state legal system is often a much less direct instrument of governance in their lives. Statutory laws are less well known, state courts harder to access, and attempts to enhance knowledge, access and preeminence of state law institutions have often had limited impact. As a result, recent decades have witnessed a re- evaluation of customary justice systems and a resurgence of traditional leadership (Englebert 2002:51-64; Oomen 2005:1-9; Ubink 2007; Ubink and Van Rooij 2011; Mnisi Weeks 2015). 1 This paper has been published in Law & Society Review 51, 4 (2017), 825-858. 2 Janine Ubink is an adjunct professor at UCI Law School and the President of the international Commission on Legal Pluralism. Her research focuses on legal pluralism, customary law and its relation with state law, traditional authorities, transitional justice, rule of law reforms, gender, and land management, with a regional focus on Africa. 3 Sindiso Mnisi Weeks is an assistant professor in the School for Global Inclusion and Social Development at the University of Massachusetts Boston. Her areas of research include the relationship between customary law and state law and policy in South Africa, women’s rights, the right to culture, traditional authorities and courts, property, and succession. 4 The research in Malawi was made possible by a generous grant from the Netherlands Organization for Scientific Research (NWO) VENI grant program for the project “Customary Legal Empowerment: A new approach to improving women’s property rights” (Project No. 016.125.253). The research in South Africa was conducted under the auspices of the Rural Women’s Action-Research Programme at the University of Cape Town. Our gratitude goes out to Victoria Huwa for research assistance, to Christa Rautenbach for feedback on earlier drafts.