Diversion Training for Prosecutors and Magistrates

The Catholic Commission forJustice and Peace, an excellent Civil Society organization that we have partnered with since coming to Lilongwe have been running another training session on diversion this week over two days, this time with police officers and magistrates who will be, unarguably, the most important players in assuring the success of this innovative pilot project.  As I have previously mentioned Magistrates are the lower court judges in the legal system. There are a number of different level Magistrates and they are lay people, sometimes with little to no legal training before they take up their posts. They have a wide range of powers and unlike District Court Judges in Ireland do not have a limited sentencing power and the higher level magistares can sentence for all offences apart from Rape, Murder and Treason. Unfortunately only 5/6 magistrates attended the training session with the majority attending being police prosecutors or investigators although those present were quite vocal during the session.

Mr Pacharo Kayira, of the Directorate of Public Prosecutions and our informal mentor, set out the legal basis for the diversion project from the laws of Malawi to the group in the first session in a lecture on the Prosecution Guidelines for diversion. Mr Kayira completed his masters in International Human Rights law in Lund University Sweden in 2006 and wrote his masters thesis on the topic of “The Right to Fair Trial: Malawi’s Quest to Meet International Standards”.  He was a key author of a number of chapters of the August 2011 OSISA report “Pre-trial detention in Malawi: Understanding case flow management and conditions of incarceration”. He is also a key member of staff of the Directorate of Public Prosecutions and so has been an invaluable asset to our project in its early stages as a human rights advocate and a public prosecutor.

He stated that the legal basis for diversion was found in a number of Malawian provisions. Section 13 of the Constitution mentions amicable resolution of disputes, in addition section 161 of the Criminal Procedure and Evidence Code also promotes reconciliation.  Finally the Child Justice Act has comprehensive provisions on diversion but only in respect of child offenders under 17. However it must be noted that this new diversion project is separate from the Child Justice provisions and will not be utilized in conjunction with it. Finally he highlighted that the new Local Courts Act (2010) has sections on the settlement of issues outside of the formal justice system.  He then went on to discuss the primary purposes of diversion, which he set out as rehabilitation and reparation, and the secondary purposes of the project, that is that the offender does not gain a criminal record, which will effect his future, educational, so that the offender looks to the reasons that they committed the offence and finally (and most importantly for our project) it will lesson the caseload of the formal Criminal Justice System which is currently swamped with small offences.

The criteria for diversion was set out as follows:

1.     Diversion must be in the best interests of the public

2.     It must be in the best interest of the Criminal Justice System

3.     It must take into account the views of the victim

4.   The offence must not be serious (examples included theft of a chicken, a sugar cane or corn maize or a minor assault)

5.     Offender must accept full responsibility for their actions and agree to the terms of the diversion

He then went on to discuss the 6 stages of diversion which he noted could be adopted at the pre-trial stage (which I would argue is the only real diversion from the formal justice system) where an offender could be cautioned and released, at the pre-sentence stage where the trial has commenced but before sentence and finally at the post sentence stage where it becomes almost a part of the sentence itself. The 6 stages were set out as follows:

1.     Commission of the Offence

2.     Evaluation and consideration for diversion (prosecution driven but could informally be pushed by the paralegals who have also been trained in this project)

3.     First Court appearance and adjournment for diversion

4.     Diversion interview and agreement (where no agreement prosecution continues)

5.     Monitoring compliance

6.     Completion of diversion

·      Compliance report reviewed

·      Offender is released without charge or

·      Prosecution proceeds where offender non compliant

The next section discussed the aggravating and mitigating factors, which should be considered when looking at diversion. Most of these would be similar to those you would use in a plea in mitigation or that the prosecution would put to the court on sentencing although two noted differences in sentencing here are that the court is reluctant to take into account health issues unless they are exceptional and medically certified (very rare, especially if someone has spent a period of time in prison awaiting sentence) and family responsibility, unless there is proof of exceptional hardship as the court notes that every family will suffer from hardship if the main wage earner or carer is imprisoned and that the offender should have considered this before committing the crime.  Finally it was noted that the conditions of the diversion agreement should be proportional, achievable and appropriate and that the offender can be referred for other restorative justice programmes such as counseling or community service (although how a low level offender would afford to pay for these is unclear).

I don’t think it would be fair to promote this project, although innovative, without speaking about a number of areas in which it could potentially fail to be effective. I would make a brief comment on stage 4 of the process, which I believe may be the blocking point for the diversion project. The Diversion interview must be presided over by a diversion officer who must be trained in diversion, if the police station has no police officer trained then it is my understanding that the process will stall at that point unless the offender can be brought to another station where an officer is trained. However this will be more costly and will necessitate the police officer in the first station to have faith in a process they may have never heard of before.  In addition for stage 6 to be completed a compliance report must be written and reviewed, this again needs a diversion officer to be very proactive and it may be more work intensive that just prosecuting a case in the formal fashion and I think that work will need to be done on the attitudes of police officers towards offenders before this will be preferential to them than regular prosecution. Finally I would foresee that if there isn’t proper monitoring of compliance then an offender could be stuck in the system for a longer period of time than it would have taken to go through the formal system if they are ever properly diverted at all. 

Particularly progressive aspects of the program include permission for the offender to have a support person of their choice present for the stage 4 interview, a mention that financial difficulties should be taken into account as a mitigating factor (quite a controversial aspect), discussions are on a without prejudice basis, if the offender admits other offences they must be passed to another officer and they must be read their rights and cautioned. Whether these important safeguards are adhered to remains to be seen but will be critical to the success of the project.

IMF back in Malawi?

The International Monitory Fund has indicated that is is ready to work with the Malawian Government to bring back the Extended Credit Facility (ECF) (Malawi and the IMF). The ECF is intended to cushion chronic foreign exchange (FOREX) shortages.

In February 2010 the Executive Board of the IMF approved a three-year US$79.4 million arrangement for Malawi under the ECF to support the authorities’ economic program for the period 2010-2012 however in June of this year the IMF was officially declared off track as the country had failed to complete a second year review of the programme due in April 2011 and also following the expulsion of Britain’s envoy in April over a leaked diplomatic cable critical of the President. 

Malawi devalued its currency in August in the hope of reviving the IMF programme (Although obviously any outside influence was denied). The IMF had disagreed with Malawi on the value of the kwacha which had been set for many years at 150 to the dollar, saying it was over-valued and discouraged foreign investment to the poor nation which depends on agriculture and donor inflows for economic survival. 

Salima Murder/Manslaughter Trials

This week the Legal Aid office have three trials running in Salima which is a beautiful township in the south of central Malawi. As a side note the beach there at Senga Bay is the weekend retreat of many from Lilongwe and we enjoyed a visit to it a few weeks ago. It also hosted the annual Lake of Stars festival for the last three years but it has been moved this year to Mangochi.... but I digress... we are heading up for three trials, 1 of which is slated to be a manslaughter trial which will be my first and they are held in the Magistrates Court rather than the High Court and the other two are listed as murder trials currently.

From a statistical and case management point of view these cases are quite interesting as they are all from 2011 which is somewhat at odds with the fact that there are currently hundreds of men sitting in jails around the country awaiting trials to go ahead for longer than a year. We are hoping that gathering this information will be useful as the project goes on, especially with Carolann now being set up to start work in the prosecutors office.

More on how the trials run next week..

CONGOMA letter suspending dialogue

The text of the letter from Council for Non-Gov organisations (CONGOMA) suspending dialogue between themselves and the government has been made available available here

It basically sets out that dialogue could not continue with the atmosphere of violence and intimidation that is being directed towards civil society leaders. They call for the Head of State to insure their safety and to denounce violence before they return to the UNDP facilitated talks. Pigs are more likely to fly before that will happen I think...

The letter is signed by Voice Mhone, the dialogue team leader and chair of CONGOMA

CONGOMA pulls out of UN led dialogue

Malawian Civil Society Organisations (CSO's)- an umbrella body of NGOs as coordinated by the Council for Non Governmental Organisations (CONGOMA) have pulled out of the UN facilitated dialogue that had previously halted the proposed August 17th vigil while talks were ongoing between the CSO's and government officials. CSO's were asking for specific matters to be dealt with during the talks that had been presented on July 20th. They had previous called for the nationwide August 17th vigil to protest Mutharika's rule. 

CSO leaders have been recently targeted by violet attacks including attacks on property. Some commentators have said that the CSO's were justified in pulling out of talks after they had previously sent a letter on September 2nd to UN representative, Richard Dictus, threatening withdrawal from the process after setting out the CSO members were being personally targeted due to what they termed President Mutharika's "war" threats.  Sample comments include:

I can arrest you if I wanted, but I believe in democracy. But I will deal with you and I am threatening you that I will arrest you this time around

The CSO's spokesperson, Billy Mayana of the Human Rights Consultative Committee said today that the planned September 21 protests would now go ahead, although I think there may currently be an injunction in place preventing any demonstrations on the grounds of a breach of democratic/civil rights being held...I'm not sure if that is still in place as there is so many injunctions and counter injunctions in place it is hard to keep track. The CCJP (Catholic Commission for Justice and Peace) an organisation we have been working with the last few weeks and who are a part of the organisation of the vigil have stated that they will wait for a statement on further action by CONGOMA before taking any action.

“Boomerang aid” study by EURODAD

A decade since donor governments agreed to stop tying development aid to lucrative contracts for their domestic companies, a major new study reveals that most aid contracts worth billions of dollars continue to be awarded to firms in rich developed nations.

A two-year study by the EuropeanNetwork on Debt and Development (quite disconcertingly shortened to Eurodad, which sounds like a really terrible superhero) on selected countries including Namibia, Ghana, Bolivia, Bangladesh, Nicaragua and Uganda on donor aid effectiveness found that donor aid is not benefitting recipient countries as the donations are largely tied to billion dollar contracts that are awarded to companies from the donor countries. The report was released on 6^th September in the presence of EU Development Commissioner Andris Piebalgs, ahead of the High-Level Forum in Korea that will gather world’s governments to agree on actions to make aid more effective. The study found that two thirds of all aid contracts were awarded in such a manner. Eurodad comprises 58 NGOs and 19 European countries. The report stated that the Paris Declaration and Accraeffectiveness agreements by the international community were the first major attempts to make aid work better fir poverty eradication and sustainable development in poor countries however it noted that little attention has been paid to how aid can enable poor people and poor countries to help themselves and become independent from aid. In successive international agreements, donor governments have committed to untie aid and allow poor country firms to compete for aid contracts. But although aid tying is estimated to raise costs by up to 40 percent, the rich countries continue to favour their own companies. “Currently, even when aid is not formally tied, donors continue to procure in a way that favours big firms from rich countries. This is a crucial reason why aid does not work as well as it could.” said Eurodad Director Nuria Molina

The findings of this report are highly relevant to Malawi. The Malawian government depends heavily on outside aid to meet development needs, although this need (and the aid offered) has decreased since 2000. However donor funding still accounts for more than 40 percent of the government's receipts. Britain being Malawi's single largest bilateral donor. This leaves the country at the mercy of donor countries. This has been most relevant over the past few months where a number of donor countries including the Uk and the US have pulled large donations from the country.  The United States had approved a $350 million grant for Malawi's dilapidated electricity network that had been delayed because of concerns about human rights abuses.

Central to the findings of the study were that procurement procedures which decide which private firms will undertake aid funded contracts generally result in firms from aid donor countries reaping the benefits of such contracts as in many contracts aid is tied to the condition that all purchases are made from firms from such donor countries. This is turn sends the funding right back to the donor countries and doesn’t add in the development of local capacity. the report states that

Around USD 69 billion a year, half the total official development aid, is distributed through public procurement tenders to private companies for aid projects such as building roads, supplying drugs or delivering schoolbooks to poor countries

Eurodad will join over 1000 campaigning organisations globally under the BetterAid coalition, campaigning for donors to finally make good on a decade of commitments and make aid work when they meet at the international conference on aid effectiveness starting late November in Busan, South Korea.

Mchinji Homicide Trials

Last week I paid a visit to Mchinji in order to assist with a number of murder trials that were set to run for the week. Mchinji is a district in Malawi, about an hour and a half from Lilongwe, for those of you who are into such things it is the district in which Madonna adopted her two children.  

As we had only gotten to view the last trial from the point where the Defence opened their case I was interested to see the whole process from start to finish. The trials were held in the Mchinji Magistrates court sitting as the High Court in the court room photographed below.  I have taken the photo from outside the court as the two side walls are almost fully open to the public and as soon as the cases started we had quite a large crowd leaning in order the windows to try and get a look, in addition to the courtroom being packed out. The vast majority of the spectators being young men.  In was told the court was so packed as the crimes were alleged to have been committed in this area and so many of the persons present would have known the deceased and the accused personally. Again it was positive to see that it was the lawyers and the judge who had to travel from Lilongwe rather than the people from the area in which the crime was alleged to have been committed, given the cost of traveling that distance for someone with a farmers income.

On the morning in question there were 5 cases listed for hearing, generally all would be expected to have been run and heard by the end of the week. The High Court judge called all lawyers in on the morning to their chambers and asked what the delay was. It was about 9.30am at this stage and I wondered if there were any Irish High Court justices looking to have cases heard so early. The prosecuting lawyer explained that a number of the accused had to be committed to the high court (in a process similar to arraignment) and this what was holding up the process. The Court noted that an accused should be committed 21 days before their hearing as this rule was for the accuseds benefit and was there to protect them. This was a surprising intervention on behalf of the court as many of the accused at the previous murder trials had been committed on the day itself so it was heartening to see the judge query why it was being done so late and to push for the defendants rights. However there would be no real benefit to the defendants in adjourning the trial as many of them would still be held in custody and some had brought witnesses who had to walk/travel a long distance in order to be present at the case. 

Three defendants were called at the start of the list and in turn the defendants were read their rights and asked if their language was Chicewa and then they entered a plea of not guilty. The Prosecutor then made an application in which he noted that he had gone through the evidence available against the accused in the cases and found it be only circumstantial in nature and that the evidence was so weak that it could not sustain a conviction on such circumstantial evidence. Based on this the State applied for the case to be discontinued under s.77 1 (a) of the CPEC and discontinued the case against the accused noting that the state had up to 6 months to retry them from that date if further evidence arose. I was surprised to find no reaction from any of the accused to this news. This process was repeated for the second set of defendants  in which the state stated that a:

...perusal of the file shows there is no evidence to link any of the accused to the death of the accused. The only evidence that could link them is that on the same day the suspects drank beer in the same place as the deceased...

The same application was made and the case discontinued. This was a case-file I had gone through in the office the week before in preparation and the police office prosecuting the case had written on the case summary that the accused were not linked in anyway to the case and were charged as the relatives of the deceased had insisted that they were troublesome. These men has been held in custody in prison for 7 months without bring granted bail.

This process  was done for one final case with one defendant who was not in court at the time as he had arrived a number of hours earlier with a letter from the prosecution stating his case had been discontinued 5 months ago. The court held as his case had already been discontinued and as such would make no order. This defendant had been granted police bail.

One further case ended with a plea of Manslaughter after a plea bargin between the prosecution and defendant before court and after a plea in mitigation was made the Defendant received a ten year sentence.

This left just one case to try for Murder out of a potential 5, 3 of which could have been dispensed with almost immediately if the case file had been examined in advance of the trials. This will be an area in which Carolann, our lawyer who will be based in the prosecutors office, will be working on and could be an effective way of cutting costs for the state and reducing the numbers of people sitting in prison awaiting a trial which could never result in a conviction due to a lack of evidence.

I will discuss the full murder trial process for the case that ran in a following post.