Front Line Defenders speak out on Malawian trial

An Irish NGO, Front Line Defenders has spoken out about the trial of of five Malawian human rights defenders accused of conducting a demonstration without police permission under the Police Act after holding a peaceful demostration urging President Bingu wa Mutharika to call a referendum for an early election, demand the resignation of Police Inspector General Peter Mukhita and call for an investigation into his alleged involvement in the death of student activist Robert Chasowa.  All participated to the demonstration as members of the Forum for the Defence of Democracy (FDD), a civil society platform formed in August 2011 to advance pro reform demands. The men were held for 5 days before being granted bail. The Frontline press statement noted that:

'the prosecution of the aforementioned human rights defenders is directly related to their legitimate work in defence of human rights, particularly with regard to their attempts to draw public attention to the accountability of the authorities for human rights abuses'. 

 It also went on to say that:

"Front Line remains deeply concerned at the deteriorating situation for human rights defenders in Malawi. We have reported on a number of instances of attacks against human rights defenders, including in March, July, and September, detailing the ongoing crackdown and campaign against those who have been vocal in calling for changes within the current Government."

Frontline Defenders was founded in Dublin in 2001 with the specific aim of protecting human rights defenders at risk, people who work, non-violently, for any or all of the rights enshrined in the Universal Declaration of Human Rights (UDHR).

World Pre-trial/Remand Imprisonment List

Roy Walmsley has a wealth of experience in the area of penal reform and in compiling prison statistics. He is an honorary consultant to the United Nations and an Associate of the International Centre for Prison Studies (ICPS), King’s College, London. He first introduced introduced the World Prison Population List in 1999 (currently on its 8th edition) and the World Female Imprisonment List in 2006. His World Pre-trial/Remand Imprisonment List sets out the number of prisoners held in pre-trial detention and other forms of remand imprisonment in 194 independent countries and dependent territories. It also shows the percentage of pre-trial/remand prisoners within each national prison population and the pre-trial/remand population rate (the number of pre-trial/remand prisoners per 100,000 of the national population).

When this list was compiled (October 2007) Malawi had a total of 1,950 remandees, that is 17.3% of the prison population. Data collected by OSISA over five years up to 2010 also suggested that 8,000 people, mainly young men, are admitted on remand to the six selected prisons every year – amounting to 1 out of every 250 men in Malawi. Since there are 23 prisons in Malawi, the actual yearly exposure of the population to prison on remand may be as high as 1 in 100.

Some key statistics in the World Pre-trial/Remand Imprisonment List list include the following:

• Two and a quarter million people are known to be held in pre-trial detention and other forms of remand imprisonment throughout the world. It is estimated that a further quarter of a million are so held in the countries on which such information is not available.

• The total includes some 476,000 in the United States, 250,000 in India, 136,000 in Russia, 122,000 in Brazil, 95,000 in Mexico, 60,000 in the Philippines, 57,000 in Pakistan, 52,000 in Turkey, 48,000 in both Bangladesh and South Africa, 47,000 in Indonesia, 43,000 in Thailand, 33,000 in Ukraine and 32,000 in Argentina. It has been estimated that there are about 100,000 in China.

• In a majority of countries (59%) the proportion of the total prison population who are in pre-trial/ remand imprisonment is between 10% and 40%. But in almost half of African countries a majority of the prison population are pre-trial/remand prisoners. By contrast, almost half the countries in Oceania have less than 10% of their prison populations in pre-trial/remand imprisonment.

• The countries with the highest proportion of the total prison population in pre-trial/remand imprisonment are: Liberia, where the prison administration reports that 97% are so held, Mali (89%), Haiti (84%), Andorra (77%), Niger (c.76%), Bolivia (75%), Mozambique (73%), Timor-Leste (71%), Democratic Republic of Congo and India (both 70%), Bangladesh, Paraguay and Peru (all 68%)

• In a majority of countries (60%) the pre-trial/ remand population rate is below 40 per 100,000 of the national population. However, in the Americas 80% of countries exceed that level.

• Panama has the highest rate in the world, some 213 per 100,000, followed by Bahamas (198), Suriname (196), the United States (158), St. Kitts & Nevis (153), United Arab Emirates (135), Guam (129), Anguilla (124), Uruguay (115), Barbados (114), Trinidad & Tobago (108), Guyana (106), Libya (105), Lebanon (104), Honduras (102), South Africa (101) and Belize (100).

Juvenile (In)Justice

 Mpemba Reformatory

Currently in Malawi the law states, under the 1969 Children and Young Persons Act, that those under the age of 18 should not be sent to adult prisons. However, for a long time courts and police have been sending children to prison as an easy option. Some children have been detained over long periods, in often-overcrowded prisons where they are at risk of abuse, are deprived of education, and have little chance of growing into well-rounded adults (particularly if they are pre-trial detainees who generally don’t get educated until they are sentenced).  Children are allowed to be detained in the country's reformatory centres, but for a maximum of six months, and only as a last resort or if the child is especially likely to re-offend.  Of the two reformatory centres, Mpemba boys' home can accommodate 370 children, and Chilwa 120.

In the past, however, the reformatory centers have been underused. In 1999, when Malawi’s two reformatories were capable of holding 210 children, only 60 out of 1770 children held within the country’s penal system were in reformatories. Children were routinely being tried in adult courts (often without proper consideration of social workers' reports), given custodial sentences and then held in adult prisons. However in 2002 DFID, together with Malawi's government and UNICEF started working to improve justice for young people through the National Juvenile Justice Forum (NJJF). The NJJF was established to work with children who have been in trouble with the law, as well as children who belong to poor and vulnerable groups within society.

In addition pilot projects have spurted up around the country. In Blantyre the Child Justice Court was established in 2005 to handle cases involving child offenders. The court is still largely guided by the Children and Young Persons Act. The Act, however, is outdated and contradicts the Bill of Rights provided in the Constitution. In addition, it does not conform to the UN Convention on the Rights of the Child. For example, the Act focuses more on punishing child offenders than on reforming and rehabilitating them. Malawi ratified the Convention on theRights of the Child (CRC) in 1991and the Convention on the Elimination ofDiscrimination against Women (CEDAW) in 1987. There is also no reference to the root causes of offending behaviour such as poverty and orphanhood, and social interventions to deal with it (17.4% of Malawian children are not living with a biological parent and there are approximately 7.3m children under 18 living in the country).  The Court is presided over by a dynamic magistrate called Mrs. Esmie Tembenu, a passionate defender of child rights and a resolute believer in the rehabilitation of child offenders who has said:

“When child offenders are brought before me, my first instinct is to look out for their best interests,” she says. “Sometimes they will have spent several nights in police custody without food and appear before me weak, hungry, and traumatised. I have to use my own money to buy them food before commencing proceedings.”

In 2010 the Malawian Parliament passed a new piece of legislation which deals with this area called the Child (Care, Protection and Justice) Act, which was tabled by the then Gender, Women and Child welfare Minister. The Malawi Law Commission developed the Child (Care, Protection and Justice) Bill in 2006, with support from UNICEF. The Bill is an innovative legislation that puts together all issues of child protection and justice into one law. In general the Act outlines responsibilities and roles of parents on how to raise their children in their respective homes, addresses issues of child abduction, trafficking, harmful cultural practices, and it recognizes principles that are in the best interest of children.

The Act recognises and places importance on the principle of the best interests of the child in respect of juvenile justice. It also provides clear guidelines on the arrest of a child, trying to ensure that it is not a traumatic experience and takes into consideration a child's best interests. It introduces procedures following the arrest of a child. These include:

·      Preliminary inquiry, which determines whether the offence a child has committed should be dealt with by the criminal justice system or not. (Given the length of time a person can spend in pre-trial detention, this provision is very important)

·      Criminal responsibility: establishes the age of a child to determine whether they can be held criminally responsible for their actions (the age of criminal responsibility in Malawi is 10 years).

·      Diversion: where the offense is not serious and a child voluntarily admits responsibility, a child can be diverted away from the criminal justice system (something which we are specifically working on).

·      Legal representation: a child in conflict with the law has the right to be protected within the criminal justice system through legal representation (financially I’m not sure how this provision will be met).

·      Child justice courts: children's cases are to be presided in private by specially trained legal and judicial officers.

·       Children in custody: children cannot be detained in police stations or with adult offenders but in specially created 'safety homes'. After trial, children should be taken to reformatory schools for rehabilitation and eventual reintegration back into their communities. (Although very ambitious this is probably the most costly and least likely aspects of the Act to be implemented at any point soon)

However some politicians at the time of debate felt that the bill was too western because some provisions are in conflict with the country’s “economic and cultural realities” and in truth what we have seen on the ground is a completely stalling of the implementation of the Act due to numerous costly aspects to its provisions (as similarly seen in Ireland with the Children Act 2001 but with less drastic consequences) and so children are left in just as vulnerable position as before.

Musings from the Prosecution side of Malawi

It’s now over three months since we first arrived in Malawi and time is flying. The project has really started to take off thanks especially to the support of our partner organisations the Legal Aid Department and the Ministry of Justice and Constitutional Affairs. Sonya and Ruth are the programme lawyers hosted by the Legal Aid Department. I am the programme lawyer hosted by the Director of Public Prosecutions (DPP). Being based with different organisations has certainly added another dimension to our project and allows us to work within the criminal justice system from different angles.

Work with the DPP’s office will focus on a number of areas such as file progression, training and support to paralegals and police prosecutors. The DPP’s office has a considerable workload and is in need of additional resources. Lawyers in the DPP’s office are responsible for prosecuting serious crimes before the High Court. DPP paralegals prosecute more minor crimes such as road traffic offences. Police prosecutors are responsible for prosecuting the majority of cases before the Magistrates Court.

In light of the fact that 90% of the prosecutorial workload is handled by the police prosecutors, I have begun to focus my work at Lilongwe Police Station. I have spent some time attending Magistrates Court with the prosecutors and assisting at the custody desk at the police station. By working with the police officers in this manner, we can together identify training needs and new approaches to prosecuting cases. One area that has been well received by police officers and magistrates the implantation of a diversion programme. Our work here will compliment the diversion training provided by the Catholic Commission for Justice and peace. Sonya  recently blogged about this. 

A diversion programme is a form of restorative justice whereby offenders are diverted from being charged (a decision made by the police) or tried (a decision made by the prosecutor or magistrate). The legal basis for diversion is set out in Malawi Constitution, Criminal Procedure and Evidence Code and Child Care, Protection and Justice Act. The main purpose of diversion is to rehabilitate the offender and to give reparation to the victims of crime. The benefits of diversion are many and recent studies show that participation in restorative justice practices can have a significant impact on the reoffending rates of some offenders and can provide benefits to victims. In addition, diversion helps reduce the pressures on the formal criminal justice system by reducing numbers in prison and the workload of the police prosecutors.

With clear benefits to all actors in the criminal justice system it is encouraging to note that I have already observed some examples of diversion. An offender who stole an umbrella was diverted from court by agreeing to pay a fine and return the stolen item. Another offender who had stolen money from his business partners was diverted from court on agreeing to repay the sum in instalments. While these offences may seem quite minor it is important to highlight that we have observed a juvenile receiving a five year sentence for bicycle theft.

Our diversion programme is still in the early stages of implementation. Thanks to the support received by our colleagues at the DPP’s office and the enthusiasm of the police officers, we are hopeful that the programme will offer an alternative approach for prosecutors and magistrates and a second chance to first time offenders.

I’ll keep you posted on how it develops!

Carolann

IRLI Malawi online

My blog-post of yesterday afternoon on "Women in Prison" has been linked on two different websites this morning. 

See Face of Malawi article here and Gobal Voice article here.

Global voice is a very interesting site which aims is to give wings to citizen media stories. To amplify their voices. They do this by linking back to the original source and also through translation. They translate some of their posts to about 20 languages. So people who do not speak English for example can follow conversation going on in the English blogosphere, same with Swahili, Arabic etc. IRLM thinks this is neato so check it out!

Women in Prison

In the last week I have made my first visit to the Maula prison women's section. The vast majority of detainees within the Malawian prison system are men between the ages of 20-29 and so there is not a particularly high demand for our services from the women's section. For example on our last count there were only 11 women in pre-trial detention in Maula in comparison with 486 men. Given that women and children are more likely to be the target population of many international NGOs and men feature disproportionately in prison populations, the conditions in Maula for women and Kachere for juveniles is usually better than in the men’s section. That is not to say that being a woman in prison in Malawi, or anywhere, is exactly a delightful experience. Prison is often a very expensive way of making vulnerable women’s life situations much worse. Once a woman is incarcerated miles from her home, sometimes for months or years without the case progressing, she may lose her home, her relationships and her children in the process. In Malawi once released from prison such a woman may have no place to return to, in particular if her husband has remarried, and as she had previously been a caretaker of her family she may not be able to source any employment either. This leaves her in a very precarious situation with a high potential of her ending up right back in the prison she has just left, often as a person with no conviction as she was held in pre-trial detention during her whole stay.

Prison causes damage and disruption, in particular, to the lives of vulnerable women, many of who pose no risk to the public. Visiting the Dochas center in Mountjoy prison, Dublin in 2007 I was struck by the high number of female detainees who were in prison for trivial thefts (sandwich/pregnancy test), small drug offences (possession rather than sale or supply) and most harrowing of all engaging in prostitution (the vast majority of whom were foreign nationals). I will accept that both of women who had stolen the sandwich and been found in possession of heroin had been caught doing the same type of offences on dozens of occasions prior to their incarceration but warehousing someone for two or three months and them putting them back onto the streets to commit the same offence again just seems like a terrible waste of resources to me. In particular given that the children of these women were often left without a parent during their incarceration. In the United Kingdom over 60% of women prisoners have young children and at least 4,000 children are affected by their mothers' imprisonment. Adding to that half of all babies under one year who are in care because their mothers are in prison are moved between 2 and 4 different homes. [Diane Caddle and Debbie Crisp: Imprisoned Women and Mothers, Research Study 162, Home Office Research and Statistics Directorate, 1997 ] In addition woman are in general held within a criminal justice system designed by men for men. This is quite visible in Maula where its almost as if the women's prison with a population of 27 women and 2 children has been tacked on to a larger prison of which currently houses 2008 prisoners.

I had ended up in the women’s section to have a consultation with a woman who had been mentioned to me on a number of occasions over the past month by both people working on the prosecution and defence side of criminal law. It’s generally been my impression that many of those working on both sides show a great deal of compassion towards those incarcerated in difficult circumstances. The woman, I had originally been told, was eight months pregnant and needed a lawyer to make a bail application. Unfortunately the lawyer who was hired by an NGO seems to have disappeared into the wind and when the case was mentioned to me again last week through the grapevine it was to say that she had just given birth by caesarean section and was now living in the prison with her child. And no bail application had been processed. I travelled the next day to meet the client and was astounded at the bravery and pride that she exhibited in such tough circumstances, although it was very evident that she wished to get out of the prison, and quickly. Our project has now drafted a bail application, which has been approved by legal aid, and we hope to file the papers tomorrow and progress the matter as quickly as possible (which still could be a few weeks given the backlog in the courts.)

This woman has spent four months in prison without being brought to court, being asked if she wanted to apply for bail or having the full details of the charge laid against her, in clear contravention of the Malawian Criminal Procedure and Evidence Code. She has been forced to spend the last four months of her pregnancy in custody and has now given birth to a child while in prison which I would argue is simply another form of violence against women. This is as bad as the practice of shackling women during childbirth in the US (a practice that has been significantly reduced in the last few years).  It was the work of individuals within the system, which has resulted in her case coming to our attention however I am now left wondering if her bail surety will be set so high that she will be unable to take it up and we will be left in the same situation again come the application being heard…