Maula Prison Camp Court - Bringing Access to Justice to the Accused

On 13 May 2013, Irish Rule of Law International (IRLI) facilitated the first ‘camp court’ of the year in Maula Adult Prison, Lilongwe. A ‘camp court’ is essentially a fully functioning court session which is located within the physical grounds of the prison with a view to bringing justice to the accused persons who are being held in pre-trial detention. Facilitating these court hearings is a key project objective for IRLI, as the regular court system suffers from a lack of resources and cannot process the cases of accused persons in a timely fashion. Camp Courts therefore serve to expedite the justice process by giving remandees access to justice, many of whom are being held in illegal detention as their remand periods have elapsed. Like an ordinary formal court setting, the key stakeholders were present on the day, including the magistrate, court clerk, social and community officer, the prosecutor, paralegals and the accused.

Prior to the court hearing, newly joined IRLI Programme lawyers Jane O’Connell and Paul Bradfield liaised with the Social and Community Officer to select and screen suitable remand candidates for the camp court, with this particular session targeting those charged with minor offences who wished to apply for bail. On the morning of the hearing, the remandees were sensitised in legal literacy led by a PASI (Paralegal Advisory Service Institute) paralegal. They were informed about the purpose of the hearing, how the process would run and what the legal and practical significance was of applying for and receiving bail.

During the hearing, a total of twelve remandees came before the magistrate, the majority of whom were charged with theft-related offences. Of these twelve, seven were released on bail, three who had already been convicted were each handed a suspended sentence of six months and two had charges dismissed as the accused persons had agreed to pay compensation to the victim in each particular case. All twelve were released on the same day. In addition, and as a result of IRLI’s intervention during the screening phase, a further ten remandees have experienced progress in their case. Some had already been taken to court, some had been released from prison and others had a date set for a trial court.  In total, twenty-two remandees experienced access to justice and due process through the holding of this one camp court by IRLI.

Of particular note during the hearings was the visibly engaged demeanor and impressive level of interaction witnessed on the part of the remandees. With the majority of them being first-time offenders, prior to participating in the legal literacy session facilitated by IRLI, they had no prior knowledge or direct experience with the formal legal system. To consequently witness them display the confidence to constructively engage in dialogue with the magistrate regarding their personal circumstances and ability to adhere to bail conditions was extremely positive. Their gratitude at being given an opportunity to be heard and to be a part of the process was also evident in their words and expressions after the hearing as they left the ‘courtroom’.

As well as facilitating access to justice through the camp court process, IRLI seeks to trigger other positive ramifications for the Malawian criminal justice system. As a result of the remandees being released from pre-trial detention, it contributes to the alleviation of the serious congestion and overcrowding problems in Maula. The released remandees will also no longer be exposed to the serious health risks existing within the prison resulting from inadequate dietary intake, unsanitary conditions and poor healthcare facilities.

IRLI will continue to facilitate camp courts in Maula Adult Prison and Kachere Juvenile Prison in the coming months including targeting cases which involve more serious offences including homicide. 

SUB-INSPECTOR FANNY CHIMBAYA AND CONSTABLE YOTAMU CHAONAINE OF THE MALAWI POLICE SERVICES SHARE THEIR EXPERIENCES OF WORKING WITH IRISH RULE OF LAW INTERNATIONAL

A key component of the Irish Rule of Law International (‘IRLI’) ‘Access to Justice’ project has been its partnership with the Malawi Police Services. Since September 2011 an IRLI programme lawyer has worked in conjunction with the main Police Station in Lilongwe to implement a diversion programme and provide legal advice and assistance to officers in the police station. IRLI has delivered a number of workshops to officers on the use of diversion and legislative updates in criminal procedure. Diversion is a type of restorative justice principle, which literally “diverts” offenders away from the formal criminal justice system. This is the first time an international NGO has been granted such access to a police station.

Our work would not have been possible without the commitment and dedication of police officers within the Lilongwe Police Station. Sub-Inspector Fanny Chimbaya and Constable Yotamu Chaonaine have attended and participated in IRLI workshops. Both officers have agreed to share how the interaction with IRLI has impacted their careers within the Malawi Police Services.

Sub-Inspector Chimbaya and Constable Yotamu Chaonaine

When I asked Mr Chaonaine what was the greatest change he had seen in the police station as a result of our presence, he said  “diversion is now a reality in our police station. Your presence has helped officers to implement what they learnt at the IRLI training. Stand-alone training would not have achieved this”.  Mr Chaonaine said due to the shortage of lawyers in Malawi the police officers never had a qualified lawyer to spend time with police officers to identify cases that are suitable for diversion and the legal basis which permitted police officers to use this tool in combatting crime. This commitment by IRLI to provide a lawyer has greatly increased the skills of police officers. Mrs Chimbaya echoed this sentiment and said ‘after the training we had the skills to talk to our superiors about cases that were suitable for diversion’. Mrs Chimbaya says the use of diversion means that because minor cases are now dealt with at the police station, limited resources such as fuel, paper and police time can be concentrated on more serious offences. 

Mrs Chimbaya and Mr Chaonaine were also instrumental in the success of the IRLI/Venture Trust ‘Mwai Wosinthika – Diversion Aftercare Program’.  Both officers volunteered personal time to teach young people life skills to assist in the risk of recidivism by them. Mrs Chimbaya says “It makes me happy when I see young people returning to school and their excitement about their futures. Engagement with young people has positive consequences for the community because it reduces animosity between families”. Mr Chaonaine said he also learnt from participating in the program by the importance placed on the motto ‘PLAN-DO-REVIEW’ in his approach to his work.  Resulting from their dedication and commitment IRLI supported the application by Mrs Chimbaya and Mr Chaonaine to participate in the Commonwealth Scholarship Fellowship Program with Venture Trust.  We are delighted that they have been successful and will be travelling to Scotland with Venture Trust later this year.  We wish you every success!

Mrs Chimbaya and Mr Chaonaine have continued to excel in their knowledge of diversion and restorative justice and delivered two of IRLI’s diversion workshops to their fellow officers. When asked about this Mrs Chimbaya said ‘I now have the ability to deliver a training workshop on diversion. I can explain to my fellow officers what diversion means, when it is suitable to be used and how diverted cases should be recorded. I no longer fear approaching my superiors about cases because I have the confidence to articulate to them what is involved and the legal basis for my actions’. Mr Chaonaine expressed his gratitude to IRLI, he said ‘IRLI has developed my skills to present on this topic. A year ago I would not have had the confidence to deliver a workshop, especially to officers of a senior rank’.

Constable Chaonaine speaking at an IRLI Police
Training Workshop at Kanengo Police Station

Sub Inspector Chimbaya speaking at an IRLI Police
Training Workshop at Kanengo Police Station

    

Group Photo from the IRLI Police Training Workshop
at Kanengo Police Station

For my part the officers have been a constant guide to me and assist greatly on a daily basis in achieving the goals which IRLI has set with regards the ‘Access to Justice’ program.  There is plenty more work to be done but with the continued support by the Malawi Police Services it is certainly achievable.    

By Eithne Lynch, Program Lawyer, Irish Rule of Law International

Homicide Remandees meet the High Court

In an unprecendented move the High Court of Malawi in the country’s capital Lilongwe has moved into Maula prison to conduct homicide trials. Her Ladyship Justice Chombo together with Court staff, the Legal Aid Department and the Director of Public Prosecutions attended Maula on 5^th and 12^th December 2012 to start work on the backlog of homicide cases.

Justice Chombo attended an IRLI training session for Magistrates in November 2012. Upon hearing our experiences in Maula, where we are working with men who have been awaiting trial for up to 7 years on remand and have never been to Court, she suggested we work together to address these problems.

A situation had arisen in Malawi’s courts where most of the homicide cases that are brought to Court are from 2011 and 2012. Cases from 2006 were being overlooked. The men who had been charged in 2005, 2006, 2007, 2008 and onward did not believe they would get to Court and had accepted their fate to remain in prison on remand. While the Legal Aid Department has a mandate to act for these people, the department is hugely over stretched and it only deals with cases sent forward by the DPP.  These ‘long term remandees’ were the forgotten people stuck in an overcrowded criminal justice system.

IRLI lawyers since August 2011, together with Legal Aid, has brought many bail applications to the High Court for those “forgotten prisoners”. All applications were successful and work was done to  locate sureties in order to secure the conditional release of these people. In some cases where a person had been waiting over 7 years and not once gone to court, the High Court granted bail and went as far as to say the State should prosecute the case within 6 months or the Court will consider them discharged.

It got to a point however where IRLI was bringing more bail applications for these old cases than there were trials being held to prosecute the cases. Due to the high volume of people on remand awaiting trial, Justice Chombo thought the best course of action would be to take the court to the prisoners and start work on this backlog.

The courts that are held in prison are known as camp courts. Camp courts are ad hoc courts held within the prisons to bring justice directly to pre-trial detainees. They run regularly as a initiative of PASI (Paralegal Advisory Service) for those who are charged with minor offences. A Magistrate and a prosecutor will attend the prison and conduct a court with PASI paralegals assisting those pre-trial detainees. It is unusual for a camp court to be held for homicide trials, but the exercise has been a success.

The EU Democratic Governance Programme, who funds alot of work within the Justice sector in Malawi, has agreed to fund the running of these courts so the back log of cases can be cleared.

As a result of these camp courts 20 cases were brought to Court and these 20 people have been released from pre-trial detention.  Some were convicted, some acquitted and others dicharged for want of prosecution. In one case where the State failed to obtain a medical report, the Court decided that he should be discharged after being held in pre-trial detention since October 2006. In another case the prisoner was sentenced to 4 years,which was backdated. As he had been in custody for 5 years, he had served his time and was released immediately.

This is a big step forward in Malawi where the High Court is actively working to ensure access to justice for all those in pre-trial detention.

By Ruth Dowling, Programme Lawyer with the Malawi Project

Magistrates Training – Access to Justice

As part of our ‘Access to Justice’ programme we recognised that there was a clear need to engage with Magistrates.  Magistrates are regarded as the primary gatekeepers of justice with their courts alone presiding over 90% of formal criminal cases in Malawi.  While Magistrates’ Courts can often dispose of cases expeditiously, the ability of such proceedings to adhere to fair trial standards has been limited at times.  This is attributed in part to resource constraints where Magistrates are not supplied with copies of the up to date laws of Malawi, not to mention regional and international instruments relating to human rights standards.

The Programme Lawyers, recognising the resource deficit, took the initiative to draft a ‘Human Rights Handbook’  tailored specifically for Magistrates.  The Handbook covers key areas such as human rights standards, the right to a fair trial, bail, sentencing, restorative justice and the special needs of children who come into conflict with the law.

The Handbook was launched at our first workshop in June, which was officially opened by His Lordship Mzikamanda.  In his foreward, His Lordship Mzikamanda recognised that our Handbook was:

the first step in a collaborative process between the Judiciary and Irish Rule of Law International of ensuring the rights guaranteed by the Constitution are adequately protected by courts.

His Lordship stated in his view that the purpose of the handbook is:

to familiarise Magistrates with existing national, regional and international legal protections regarding the right to liberty and security  of the person and to illustrate how the various legal guarantees, if enforced by Magistrates’ Courts in practice, will protect and safeguard the rights of persons arrested or detained.

All Magistrates within the Lilongwe Area have been provided with a copy of the Handbook.  To ensure proper use of the Handbook, and to explore further areas of interest highlighted by the Magistrates in June, we held a follow up workshop in November.  This coincided with a field visit by Mr Michael Irvine, Director of IRLI.  The workshop provided us with an opportunity to raise our profile and the work we are engaged in.  We were delighted to have opening remarks from a distinguished panel of speakers.  We were joined by Mr Anthony Kamanga SC, Solicitor General and Secretary for Justice, Ms Esme Chombo, President of the High Court and Ms Elizabeth Higgins, Ambassador of Ireland.

Mr Kamanga, SC stated that

access to justice is at the cornerstone of every society, Malawi included.  The justice sector is in the process of implementing a new 5 year Democratic Governance Strategy Plan.  The vision of the Democratic Governance Sector is to ensure a “Malawi that is truly democratic, just, safe, secure and prosperous, in which everyone enjoys their human rights and lives a life of dignity”.  This vision is shared by our colleagues at Irish Rule of Law International as witnessed by the program which they will deliver to you today.

This illustrates that our work is supported and endorsed by our partner the Ministry of Justice and Constitutional Affairs and we continue to enjoy a fruitful relationship.

Justice Chombo similarly applauded our efforts and commended our Handbook.  She urged the Magistrates to take

time to discuss and reflect on the many facets that will enable better ‘Access to Justice’…to take this workshop very seriously indeed and that the knowledge to be gained in this workshop should enable you to perform better upon return to your duty stations. 

Her Excellency Liz Higgins also commended the efforts being undertaken by IRLI and was keen to impress that our work was in line with the vision shared by the Embassy within Malawi.  Our work is complimentary to similar initiatives being undertaken by the Embassy in the justice sector to help improve democratic governance.

The first half of the workshop consisted of a series of presentations which focused on the Rules of Evidence, Right to a Fair Trial, Sentencing and the Special Protection of Children in Conflict with the Law.  After a break to reflect on the lessons learnt from the morning in the afternoon we held two ‘moot’ courts and divided into four separate groups so that we could put into practice what had been learnt.  For the moot court we were joined by our friends at the Malawi Police Services and the Malawi Social Welfare Services.

We concluded the workshop with a round table discussion from the various stakeholders around the challenges facing meaningful ‘Access to Justice’.  Whilst there were many challenges lack of resources (financial and personnel), capacity and co-ordination; there was unanimous agreement that one of the keys to unlocking the solution was increased communication amongst the stakeholders so that vulnerable persons within the criminal justice system have their human rights protected.

Eithne Lynch

Legal Literacy in Kachare Boys Reformatory Centre

Kachere Boys Reformatory Centre was originally built in the 1960s as a remand centre.  While over the past two years significant strides have been made in improving conditions at Kachere, sleeping and sanitary conditions remain sub-standard. Kachere was originally built with a capacity for 70 persons.  While writing this post today I am saddened to say that there are 202 boys being held at Kachere, 33 are awaiting trial (16 of who are answering charges of homicide) with the remainder serving sentences for a variety of offences from simple theft to robbery and homicide.

Ruth facilitating training

The vast majority of the boys held at Kachere have never had access to a lawyer to assist them in their criminal case. Recently we have begun to work more closely with the paralegals from the Paralegal Advisory Institute Services (‘PASI’) who visit Kachere regularly to assist on aspects of the boys’ legal defence. In the past PASI have held legal literacy programmes in Kachere to educate the boys about court procedures, what they can expect when standing before a court and the steps that they should take to improve their access to justice.  Last week we facilitated a ‘legal literacy programme’ with PASI.  The programme was delivered by Mr Alex Nkunika, paralegal with PASI.  Mr Nkunika has many years of experience in delivering programmes of this nature with vulnerable youths.  His interaction with the boys was excellent.  The use of theatre to demonstrate the importance of accuracy in everything they say before a Magistrate or Judge was a clever way of imparting this important message.  Mr Nkunika was able to assure the boys that in the absence of a lawyer it is within their abilities to tell their ‘stories’,  clearly demonstrate the importance of telling the truth and show the importance of this in accessing justice in their case.

As a result of this intervention it is hoped that more boys will be empowered to advocate for their own rights and find the voice to demand access to justice!

By Ruth Dowling BL

Generation Hope – A Poetry Anthology By Young Malawian Writers

A couple of weeks ago I stumbled across the Lilongwe Cultural Festival which provided an opportunity for artists, playwrights and poets to showcase their work to the public. It was at the festival that I came across a publication call ‘Generation Hope’. This publication serves as a platform to allow young Malawians voice their views on the current challenges and opportunities facing them.

There is one poem in particular that I wanted to share with the readers of our blog as it reasonates quite strongly with our project, ‘Access to Criminal Justice’. The poem is called ‘Decades to Come’ and was written by Boniface Wizilamu. Like the poet we believe that there is hope for Malawi that solutions can be found, obtacles overcome. What is required is patience, time and perseverence.

 DECADES TO COME

by Boniface Wizilamu

Dry your tears, Mother Malawi

weep not again

for your glory is about to retain

face your eyes to the east

and expect not a beast

but a peep of the sun

struggling to rise above the mountain

whose shadow has masked your beauty

to deny you a chance to sparkle

like a pistol, the brightest star

in the sky that twinkles

now a dwelling den, for crooks and con artists

worry not then, watch until it fully shines

and uncover the beauty that is truly fine

Question not this prophecy

a true vision it is, not a fallacy

that warm heart shall give birth to peace

that treasure hidden within,

shall unlock the ingress of prosperity.

Together we shall turn a new leaf

of oneness and friendliness

and the willingness to work as a team

even in times when the chances

of survival seem slim

that’s your destiny, Mother Malawi

mark my words, it’s just in a few

decades to come.

By Eithne Lynch

Ngala Mountain – The Mountain of the Smile

While our friends and family took on the Blackstairs Mountains at home, the programme lawyers decided to take on a challenge of our own – to summit Ngala Mountain. As many of you know Ngala holds a special place for us here in Malawi because it is this mountain that we scaled with some vulnerable children that we work with. Ngala represents a turning point in their lives as they are taken here by us when they successfully complete the 12 week behaviour change programme as part of their diversion conditions from police custody. For many of these children this will be the first time that they are treated to a weekend of fun as a reward for their hard work. In many cases their lives are dedicated simply to surviving. Depending on who you talk to Ngala, means the mountain of the ‘mouth’ or the ‘smile’ due to the large gash in the rock face at the front of the mountain. I like to think of it as the mountain of the smile, given the many fond memories we have of it.

That's me in the blue at the front struggling with the steep inclines!

We left Lilongwe early Saturday morning as we wanted to start the climb before the heat of the day really began to hit. We are now in the height of the summer and temperatures often rise to 35 degrees celcius by 9 in the morning. After being greeted by Chief Mkanga at his home and exchanging gifts we set off at 9:30 am to start the climb. We were escorted by the Chief and the Village Head Man on our hike together with a gaggle of excited children from the village who were fascinated by this bunch of ‘Muzungus’ (white people) who wanted to climb their mountain. Needless to say we Muzungus were put to shame by the energy of the children who ran up the steep slopes with not even shoes on!

Chief Mkanga’s son brought a battery radio with him and we all enjoyed the music as made our slow assent up Ngala. We reached the summit approximately 1 hour 30 minutes after starting and we greeted with breathtaking views of the surrounding country side. We were regaled with stories by Chief Mkanga of how his tribe fled high up into the mountain to escape the neighbouring Ngonis’ who wanted to claim their land many years ago. Fortunately now, we were assured by Chief Mkanga that they no longer face these problems but he is often called to mediate on disputes. I told him about the community based work we were doing and we exchanged ideas on top of Ngala. I also told him that our friends in Ireland were doing a hike to support our work in Malawi. Chief Mkanga assured me that my Irish friends would be most welcome to come to his village and climb Ngala!

Left to Right – Chief Mkanga, Jo Seth Smith, Suzanne Byrne, Lena Ryde Nord, Patrick Gerathy, Eithne Lynch, Mehallah Beckett and Village Group Head Leader.

After taking the obligatory photos to prove we actually made it we began our walk down the mountain, all a little more tired than when we set out but with huge grins and a sense of pride at our accomplishments! 

By Eithne Lynch, Programme Lawyer with the Malawi project