Prosecution challenges and success

Through its work with the Office of the Director of Public Prosecutions (DPP) and Lilongwe Police Stations Irish Rule of Law Malawi (IRLM) has had a number successful results in securing the release of prisoners.

In December 2009, a boy aged 16 was arrested for murder. He was moved from custody to Kachere Juvenile Prison in January 2010 and he remained there for years. The only thing linking the boy to the murder was that he was found selling the deceased’s items. In light of the lack of evidence, in August 2010, the DPP informed the court that it would file a certificate of discontinuance. Section 77 of the Criminal Procedure and Evidence Code provides that the Director of Public Prosecutions has the power to discontinue a case at any stage of proceedings before judgement. On filing this certificate the accused should immediately be released from custody and all charges should be dropped. Unfortunately, in this case the certificate was never filed. When IRLM became aware of the case in October 2010, it liaised with the prison officers, Venture Trust, courts and the DPP to resolve the matter. This combined effort resulted in the release of the boy from prison last week.

IRLM also recently assisted with the release of a non-national boy aged 16 from Kachere Juvenile Prison. He was brought before court in July 2011 for theft of a mobile phone. On hearing the case the court ruled that he should be unconditionally discharged. Unfortunately, the social welfare report incorrectly identified the boy as a refugee and the court ordered that he be returned to the nearby Dzelaka Refugee Camp. Instead, due to lack of transport, the boy was returned to Kachere Juvenile Prison and remained there for over five months. By working together IRLM and actors of the criminal justice sector confirmed that the boy was not a refugee and secured his release from prison.

Another young boy was being held in Kachere Juvenile Prison since 2009 under the Children and Vulnerable Young Persons Act 2008 Section 16. Essentially, the boy was ordered to remain in prison until there was a positive change in his behaviour. Despite reports documenting a positive change in early 2010, the boy spent two years in prison. Prison authorities and social welfare officers agreed that his behaviour had improved and that he should be released. However, it was unclear who had the authority to release the boy. Thanks to the support of juvenile magistrates and the DPP the boy has now been released.

The above cases represent some of the challenges that IRLM and its criminal justice partners are working to address. While such abuses of human rights are unacceptable by taking a combined approach with the parties in the criminal justice sector and working together to find a solution, it is hoped that such cases are less likely to occur in the future.

Carolann Minnock

Prosecution Programme Lawyer

Attacks on Women in Lilongwe

As the economic situation in Malawi continues to worsen and tension continues to rise there were some random attacks on women wearing trousers or short skirts around Lilongwe  one day last week. Under the nearly 30-year rule of Hastings Kamuzu Banda, women in Malawi were banned from wearing pants and mini-skirts. Men were forbidden from having long hair until 1994.

This has even managed to garner some coverage from The Irish Times quoting the president as saying

"I will not allow anyone to wake up and go on the streets and start undressing women and girls wearing trousers, because that is illegal"

 Nancy Tembo, spokeswomen for the opposition Malawi Congress Party was also quoted as saying the public stripping amounted to violence against women.

"Police women wear trousers, mechanic women wear trousers, why do we have to live in fear?" she told the Nyasa Times.

Lilongwe police havesaid any men arrested will likely be charged with breach of peace and theft. Riot police were patrolling the streets of Lilongwe to prevent further attacks although since the incident occurred there as been no further reports of anything similar.

IRLI Malawi and PASI

PASI are the Paralegal Advisory Service. PASI was created originally in response to life-threatening conditions in Malawi’s prisons as a project of the non-profit Penal Reform International. At the time, the prisons were overcrowded, with high death rates due to starvation, the spread of disease, and police brutality and torture. Prisoners lacked meaningful rehabilitative programs, often languished in jail for years awaiting trial, and had no access to legal advice. 

Malawi had only 300 lawyers to serve a population of 13 million people. To address these problems, PASI started its focus on training paralegals and ensuring the establishment of a permanent paralegal presence in Malawi’s prisons, especially due to the dearth of lawyers and the high cost of their services. Paralegals monitor the human rights situations in prisons and provide legal advice and assistance to prisoners.  With a focus on alleviating overcrowding and getting remand prisoners out, PASI has proved to be extremely valuable. These highly trained paralegals are able to talk to clients, talk to witnesses, conduct a lot of investigative work on cases, and provide this information to public defenders. Paralegals also conduct trainings in prison where they involve the prisoners in skits that show them how to navigate the justice system, and to help them better understand legal proceedings. Prisoners who know their legal rights are better able to advocate for themselves in court. They have been at the forefront of  implementing a cost-effective and innovative method of improving access to justice and legal services for all in Malawi.

Between Nov. 2002 and Jun. 2007 APSI’s prison clinics between empowered about 150,000 prisoners to represent themselves in court, apply for bail, present a mitigation plea, or draft an appeal to the High Court and PASI's work reduced the overall remand population from 40-45% of the overall prison population to only 17.3%.

We were delighted to be working with PASI in Malawi and to have recently get a write up in PASI's January newsletter which set out the role which PASI foresees IRLI playing within the Malawian CJS

"... volunteer Irish lawyers are working with PASI in Malawi in their daily visits to prisons to educate those held awaiting trial of their rights. The volunteer lawyers assisting in the processing of bail applications, improving and record systems and file management in court offices and training of PASI paralegals.

Below is a proposed list of achievements the Irish Aid Pamodzi Rule of Law Malawi Project expected at the end of the period.

•    improve access to justice
•    improve conditions in prisons
•    provide civic education to prisoners on their law and their rights through practical workshops held in prisons
•    simplify court and criminal procedures for prisoners
•    improve record keeping
•    assist in training of paralegal staff
•    improve court systems and case management
•    develop legal education for all in Malawi"

We have been very fortunate to work with Clifford Msiska and Chimwemwe Ndalahoma and their staff of highly trained paralegals over the past few months and hope to be soon starting a more tangible project in the prisons with them over the next term....so stay tuned...

Chim (A former JusticeMakers Fellow)

Due to its success, the PASI model has been replicated in Kenya, Benin, Uganda, Niger and  Bangladesh.

Malawi Courts Closed for the Second Day

Courts across the country remain closed for the second day in a strike by junior members of court staff. The staff members are striking on the grounds that their pay grades have not been reviewed since 2006 when it is supposed to happen every three years. They are looking for a 50% hike on their current pay grades.

While I understand the very real reasons that the court workers are implementing a strike, the manner in which they have done so takes absolutely no account of those who have been arrested and are spending time in prison/police cells. 

First they have chosen to do so directly after the civil service Christmas holidays. This means that there have been little to no court sittings since before Christmas and so the prisons will be swelling in numbers as the days goes by and secondly the workers have chosen to have an all out strike rather than keep a skeleton staff so that emergency sittings can be held for people who are legally entitled to bail and to release orders. At the moment some prisoners who were granted bail in mid December, without conditions are still being held in prison. Obviously this is an outrageous breach of their right to liberty but in economic terms it is also a terrible waste of government rescourses to have to house men and woman who should be free.

In the financial difficulty Malawi currently faces it would be impossible for the Government to give anywhere near such a raise in payments and the workers insist they will continue to strike until they get what they deserve so it is difficult to see where common ground can be found here. 

While this is going on the prisoners must simply wait...

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