Children in Custody

Our project recently came across five children aged between 11 and 15 years old who had been held in police custody for three months. The boys had been sentenced to two reformatory institutions called Mpemba and Chilwa based in southern Malawi.There are currently only two reformatory centres in Malawi where male juveniles may be sent. Chilwa Approved School founded in 1947 and Mpemba Boys founded in1963. Both of these centers can be hundreds of kilometers away from the district in which the boys have been sentenced however and as currently there is a severe lack transport [Due to fuel shortages] there was no vehicle available to move the boys and so they waited....and waited.

In addition due to insufficient funds police are unable to provide food for the prisoners held in their custody. Prisoners must rely on family and friends to bring food to the police station. The five boys were either orphaned or their families were unable to visit. They often complained of being hungry and relied on the kindness of other prisoners or police officers for food. The police were very concerned at the length of time that the boys spent in the cells and were very anxious that transport be secured to bring the boys to Mpemba and Chilwa. IRLM has developed a very good working relationship with the police and for this reason was given access to the police cells to witness the problem. IRLM worked together with the police and local NGO’s and fortunately the children were recently transported to the reformatory institutions.

The Children’s and Young Person’s Act 1969 is currently the governing legislation for juvenile justice (hopefully soon to be replaced by the Child (Care, Protection and Justice) Act). Section 24 of this act provides for the establishment of a Board of Visitors. The Board is tasked with monitoring the reformatory institutions to ensure that they are operating in the best interests of the child. The Board also has the power to release a juvenile that is held at an institution. It is in this context that IRLM recently had the opportunity to work with the Board of Visitors whom we were able to contact when IRLM also became aware of a juvenile ordered to be detained in custody until there was a positive change in the his behaviour. After assessment a social welfare confirmed that there was a positive change in his behaviour in early 2010, yet the juvenile remained in custody when we came across him a few weeks ago. IRLM successfully highlighted this case to police prosecutors, a child justice magistrate and the Board of Visitors and by working together the juvenile was released earlier this week. 

The Convention on the Rights of the Child (CRC) states at Article 37 (b) that custodial measures should be “measures of last resort.” In addition, Article 40 CRC and section 42(2) (g) (iv & v) of the Constitution both provide that a child in conflict with the law has a right to treatment, which promote the child’s sense of dignity and worth, which takes into account the age of the child, and which ultimately aims for reintegration into society. For the five boys held in police cells and the juvenile that spent over a year too long in detention it is clear that much work is needed to ensure that rights provided in both national and international law are enforced.

Carolann Minnock (Programme Lawyer)

Law Society Gazette Article of IRLM project

The newest issue of the Law Society Gazette features an article by Programme Lawyer Sonya Donnelly on the IRLM project entitles Ireland promoting the Rule of Law in Malawi. You can find it on page 12 of the magazine here

Lunchtime Seminar 19th December

Lunchtime Seminar – Held without trial for up to 7 years: the forgotten prisoners of Malawi

19 December 2011

Sonya Donnelly BL will give an account of her experience working within the criminal justice system in Malawi at 1.00pm on Monday 19^th of December in Courtroom 13  of the Criminal Courts of Justice, Parkgate Street, Dublin 7.

CPD will be available for this seminar.

Kachere Christmas Party

Last Thursday we were kindly invited by an Scottish organisation called Venture Trust to the Kachare Juvenile facilities' Christmas party. The Venture Trust project helps the young men in the facility to change their behaviours, through time, space and intensive support in carefully designed programmes, which gives them the confidence, motivation and life skills they need to make those changes.The programme used in Kachere is designed to reduce re-offending among young men and boys released from Kachere. In reality they do much more for the guys in the prison and organizing this party for the boys was just one of additional things that they do on a daily basis. We've been privileged to work with them over the past few months and hope that it long continues.

 Christmas Tree painted on the wall of the prison

The purpose of the party was to showcase some of the skills that the boys have learned to a variety of the organisations that work with them during the year. The party started with some choral songs from the prison choir. Then a nativity play was put on by the boys and I have to say that the sight of a teenage boy dressed as Mary give birth to a baby jesus inside a juvenile prison in Malawi was not the way that I had planned to kick off my Christmas festivities but, like a lot of things since I've arrived here, it was unexpectedly excellent. The boys really took to their roles and had written the dialogue themselves with the help of a local drama group who work with the prisoners. The drama group, who are from Area 23 in Lilongwe, then put on a play which was centered around the story of two young men leaving the facility at the end of their prison sentence and the difficulties they could encounter once released. On leaving Kachere, young men often find themselves displaced from their families and communities, and with very poor prospects for employment or education. Without support, many are at risk of falling into patterns of re-offending, disadvantage and poverty. The play while touching on some very serious issues was done in a very lighthearted manner and went down a treat with everyone present. We even got to see an amazing sight of a prison guard play the role of....a prison guard.

Area 23 Drama Group performing at the party

Finally we got a visit from a Malawian style Santa Clause, even dressed in an altered chitenge (this is an African garment similar to sarong, often worn by women wrapped around the chest or waist, over the head as a headscarf, or as a baby sling). I believe the photo has to be seen to be believed.

Venture Trust had also organized for a few of the groups attending to bring some sweets, drinks and soap as a present for the detainees. For many of the young boys in the facility this will be the only gifts that they will get this Christmas. However I was surprised and uplifted by the spirit on show during the day. The boys cheered and laughed during the performances, there was a great spirit of comradery between them and most positively there was a massive sense of respect and trust for both the prison guards, staff and indeed for the Venture trust employees.  While everyday is obviously tough in a prison which is so significantly overcrowded and I could talk in detail about the difficulties these boys face and the harsh sentences they are getting from the courts, I want to leave that aside for just one day and focus on the positive work that is going on there and the changes that good people are trying to bring about to improve the lives of the boys living there. They have been significant in trying to guide young men towards positive destinations on release.  It's not often on this blog I get to do such a things so I'll ask you to bare with me just for this one blog post, even the Grinch can be positive now and again!

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…

Maravi post : 3 Irish lawyers join Legal Aid

Another Malawian paper had an article on our project today. The Maravi Post had an article entitled "Three Irish Lawyers join Lehal Aid to unclog Justice System"

UN Human Rights Commitee will examine Malawi today

The United Nations Human Rights Committee will meet for its 103rd session today. The Human Rights Committee is the body of independent experts that monitors implementation of the International Covenant on Civil and Political Rights by its State parties. All States parties are obliged to submit regular reports to the Committee on how the rights are being implemented. States must report initially one year after acceding to the Covenant and then whenever the Committee requests (usually every four years). The Committee examines each report and addresses its concerns and recommendations to the State party in the form of "concluding observations”. The Government of Malawi has not submitted a written report on its human rights record in respect of its obligation to implement the provisions of the ICCPR. Despite the lack of a report the Committee will review its record with a government delegation traveling from Malawi headed by the Attorney General.  The International Covenant on Civil and Political Rights (ICCPR) is an international treaty that outlines a set of fundamental rights guaranteed to all individuals regardless of race, color, sex, language, religion, opinion, nation, property, birth or other status. The ICCPR was adopted by the United Nations General Assembly in 1966 and entered into force in 1976. So far, 166 states, including the Government of Malawi, are parties to the Covenant. The Human Rights Committee is responsible for monitoring the implementation of the treaty by States Parties. Additionally, the 18-member committee also has the authority to interpret the treaty through issuing general comments.

In the absence of a state report, the Committee will consider information submitted by non-governmental organizations including the Centre of Development of People (CEDEP), the Centre of Human Rights and Rehabilitation (CHRR) and the International Gay and Lesbian Human Rights Commission (IGLHRC).

Read the full text of NGO Shadow Report on the Implementation of the International Covenant on Civil and Political Rights (ICCPR)

The shadow report highlights what is says are human rights violations which have been committed by the State of Malawi. Some areas it has highlighted include:

• On 20th and 21st July 2011, the Malawi security forces killed eighteen unarmed individuals who were attempting to exercise their right to peacefully assemble in opposition to the government.
• There have been complaints of torture in numerous police stations across Malawi. While NGOs and lawyers periodically access and monitor detention facilities, they are powerless to influence the treatment of the individuals incarcerated.
• The President’s Administration attempts to distract attention from its failure to respect the rule of law by blaming vulnerable groups, including LGBT people.
• There is a sustained attack on press freedom in Malawi. During the 19th and 20th of July 2011 demonstrations, a total of twenty-two journalists were beaten and assaulted by the Malawi Police Service.

In addition the shadow report offers eighteen recommendations for actions that should be taken to bring the State of Malawi in compliance with its treaty obligations. Those recommendations include the right to peaceful assembly, the right to fair trial, the right to free speech, the need to decriminalize homosexuality, the need for equal rights between men and women, and the need to conduct immediate and impartial investigations into the July 2011 attacks on civilians and journalist.  

For more information about the work of the Human Rights Committee, read the Civil and Political Rights: The Human Rights Committee fact sheet. 

Kachere prison visit

I recently visited Kachere Juvenile Prison for young male offenders. Kachere is a small prison located in Lilongwe City Centre and serves the central region of Malawi. The prison was built in the 1930s. Today Kachere holds approximately 130 prisoners. The prison is incredibly small and visibly overcrowded. A recent report by the Open Society Initiative for Southern Africa stated that Kachere is at 200% capacity.

Fortunately, there is a willingness to change and I met with two organisations at the prison who are working with the prison officers and government to help improve prison conditions.

·       I met with a representative from Venture Trust a Scottish charity that is working in Kachere Juvenile Prison in Malawi to help young men reduce their reoffending rates, and broaden the range of education and employment opportunities available.

·       I also met volunteers from Music Crossroads who were teaching prisoners to play the guitar and keyboard. Music Cross roads are an an international nongovernmental organisation (INGO) that employ local facilitators and teachers using African music, theatre and traditional dance to build young people’s self-confidence.

Earlier this year the Open Society Initiative for Southern Africa conducted an audit on pre-trial detention and case flow management in Malawi. The audit identified that on average, 6,333 juvenile remandees enter Kachere prison each year.

Of the 130 juvenile prisoners at Kachere prison many are pre-trial detainees. This means that they have not yet been tried for the crime for which they have been accused. The United Nations Rules for the Protection of Juveniles Deprived of their Liberty (UNJDLs) set out detailed provision for the detention of children. In addition to the general provisions, the UNJDLs state the following in respect of pre-trial detainees:

“17. Juveniles who are detained under arrest or awaiting trial (“untried”) are presumed innocent and shall be treated as such. Detention before trial shall be avoided to the extent possible and limited to exceptional circumstances. Therefore, all efforts shall be made to apply alternative measures. When preventive detention is nevertheless used, juvenile courts and investigative bodies shall give the highest priority to the most expeditious processing of such cases to ensure the shortest possible duration of detention. Untried detainees should be separated from convicted juveniles.”

The Child Care Protection and Justice Act 2010 was enacted in July 2010. However, it will not be operative until such time as the public reformatory centres referred to under section 157 of the Act have been established. In an already over stretched criminal justice system the establishment of these centres is likely to take some time. That said, the Act does indicate a willingness take a new approach to dealing with young offenders. The Fifth Schedule of the Act sets out diversion options available to magistrates whereby a young offender may be diverted away from prison. Therefore, while it may still be some time away this legislation represents a move away from a culture of imprisonment

An interesting article featured in the Huffington Post a few years ago for the I Live Here project on Kachere

Camp Courts

This week the project lawyers attended a Camp Court in prison.   These prison courts only handle matters involving minor offenders.  The courts are supposed to act as a useful way to reduce overcrowding, speed up justice delivery, and restore the ‘hope’ factor in the life of prisoners.  

As a background to the camp courts, the prisons in Malawi lack the transport (or the petrol) to bring the prisoners to the court; or the courts lack the space to hold the prisoners at court in cells. Accordingly, paralegals invite the magistrates to establish ‘camp courts’ inside the prison. The Paralegals draw up lists of those on remand that have overstayed, are held unlawfully or have been granted bail but cannot afford the terms set by the court. They discuss the lists in advance with the prosecuting authorities. Magistrates attend court with the court clerk, police prosecutor and work through the list: they grant bail to some, reduce the amount set by an earlier court by way of bond or surety for bail and dismiss cases where the accused has overstayed, or set a date when the accused must appear for trial. The camp court is not a trial court, since the public cannot attend and witnesses are not produced. The chief benefit of this mechanism is that prisoners see the law in action. Magistrates see inside the prisons and are able to do something practical to alleviate the situation. As a consequence, tensions in prison are reduced and the lower judiciary becomes more thoughtful about the utility of alternatives to prison in appropriate cases.  Prison staff also comes to recognise that facilitating access to justice is part of their roles.

On the day there were about 14 cases listed for hearing, however unlike cases normally listed for hearing these matters were for bail applications, variations or to actually list matters before a magistrate.  In many of the cases remandees were being held on expired warrants and had already been granted bail but were unable to meet the sureties set out by the magistrate they had been brought before in arrest. While a small amount is usually set for the personal bond, somewhere around 1,000-2,000MK the status quo appears to be, even for very minor offences, that at least one if not two independent sureties will be expected. This poses a number of difficult issues for the remandee. 1. Many have no way of contacting their family, while  organisations such as PASI, CELA and the CCJP make efforts to find family members this is not always easy and is definitely not done in a uniform manner. 2. Many of the families do not have the amount of money that is required by the court for the surety. In many cases it is 10,000- 20,000MK which could be 6 months/1 year of a families earnings. 

Therefore you have a situation where remandees are effectively denied bail due to the levels that they are being set at. PASI currently have a programme running where they are monitoring this matter to see how many remandees are effectively denied bail due to this type of bond being set. I’m somewhat of the opinion after visiting the camp court that if the defendants had legal representation a mplea could be made in respect of finances and cases could be put before the court which set out the High Courts position on denying bail in such a way. However at present the remandees have no legal representation at the courts….watch this space..

Cork Independent Article on IRLM project

The Cork Independent ran a profile on one of our Programme Lawyers a few weeks agoand it contains a good summation of our project

You can find it and a dashing photo of Sonya in her wig here

Legal Aid Act 2010

The Legal Aid Act 2010, which was the 7^th Act to be passed by President Bingu Mutharika in 2011, is still yet to come into operation as the minister has yet to publish a notice of such in the Gazette as is required by section 1 of the Act. However I think given its potential significance it is important to discuss the various aspects of the Act, which may relate to our work here in Lilongwe.

Current Position

Currently the Legal Aid Department (it will be called the Legal Aid Bureau under the new Act) has enabling legislation, the Legal Aid Act Cap 4:01 of the Laws of Malawi which is an Act

“to make provisions for the granting of legal aid to poor persons and matters connected therewith and incidental thereto”

The current Legal Aid Act was enacted in 1964 to provide for Legal aid to poor persons for free and at a contribution to those whose levels of income allow such contribution. Prior to 1964, Legal representation of poor persons was done under the poor Prisoners Defence Ordinance of 1945. The Ordinance was confined to criminal matters in the High Court specifically to cases of murder, manslaughter and defilement and given the budgetary shortages even today these are still cases which take priority in the office now. The LAD is a department in the Ministry of Justice and Constitutional Affairs whose objective to provide free legal services in all types of cases to the poor people of Malawi, hence, accord the people quality access to justice. The Departments core functions are performed by legal Aid Advocates, paralegals and law clerks.

The department currently has offices in Lilongwe, Blantyre and also Mzuzu. There is no LAD representation at district and sub–district level due to budgetary constraints and the absence of a pool of dedicated lawyers and there is an obvious need to decentralise the service in order to make it more accessible to all potential users. The authority to grant of Legal Aid is vested in the Chief Legal Aid Advocate, the Deputy Chief Legal Aid Advocate or the Assistant Chief Legal Aid Advocate. The Department is headed by the Chief Legal Aid Advocate (commonly known as the Chief), with responsibility over granting and refusal of legal aid services in all matters, general management, administration and financial management of department resources. The Chief reports directly to the Solicitor General and the Secretary for Justice in the Ministry of Justice and Constitutional Affairs. Any complaint or statement recorded is accompanied by a Legal Aid Application form duly completed and signed by the applicant. All the details on the forms are completed by the applicant if he is able to write. If he is unable to write the officer from the Department assists the client to complete the form. The Act is modelled on the English Legal Aid and Advice Act of 1949, and provides for a three tier approach to the granting of Legal Aid. Sections 4 to 6 of the Act address legal aid in criminal matters and considerations for assessment of eligibility.

A specific section I have found very interesting is the Third Schedule to the Legal Aid Regulations which establishes the fees payable to private Legal practitioners. The maximum fee that a private practitioner may be paid for a criminal case under this schedule remains at MK42, which is about 20 cent. You can imagine that private practitioners are lining up outside our doors trying to represent indigent accused on a daily basis. On the other hand and again unsurprisingly when it comes to Legal Aid in any jurisdiction, there is no limit to the amount of fees that a private practitioner may be paid for civil matters.

Basically to sum up the Legal Aid Department (LAD) is currently understaffed, has a high turnover of Advocates, and is in need of additional funding. Although funding has been significantly increased in recent years, the LAD receives only about 1.5 US cents per capita whereas the UK per capita expenditures reach $60 (Assessment of Legal Aid in the Criminal Justice System in Mlawi, Professor McQuiod (University of Kwa Zulu Natal 2006)P35.)

Legal Aid Act 2010

The new Act establishes a Legal Aid Bureau which will provide Legal aid consisting of legal advice and assistance, legal representation and public legal education. The Act makes provisions for the Legal Aid Bureau to liaise and cooperate with civil society organizations and any other persons or bodies engaged or interested in the provision of legal aid. It also proposes to create a “legal aid fund” in which the government and its partners will pool resources out of which the Department of Legal Aid will fund its activities and outsourcing to other service providers and it also includes a mention of various other sources of funding which shall include contingency fees, costs awarded by the courts to legally aided persons, deductions from the awards by the court and contributions made by legally aided persons. The Act provides that the Legal Aid Bureau should be adequately funded by the state to ensure independence. The bureau is required to establish regional and district legal aid centres for all four regions and 28 Districts.

The Act addresses the structure of legal aid service and establishes an independent State Institution, headed by a “Director”. The Act also narrowed the authorities to grant legal aid to ensure that legal aid is not granted without regard to available resources (given this provision I wonder how the planned legal aid centres for all four regions and 28 Districts will manage to fund themselves). The role of courts is confined to making recommendations to the Director in appropriate cases. Consequently, courts do not have power to order contributions. recommended for repeal. Whilst, the courts may make recommendations as regards the grant of legal aid, the Director has the exclusive power to address and deal with this issue. The Bill requires the Director to give reasons to the court that made the recommendations, as well as the Registrar of the High Court when the Director is unable to provide legal aid. Any aggrieved person is afforded the right of appeal against the decision of the Director not to grant legal aid. This approach is intended to ensure that the Director who has knowledge of the availability of legal aid resources and of all commitments of the Bureau, shall have the final decision whether or not to grant legal.

Another departure from the Current Act relates to the assessment of means of the applicant who is applying for legal aid. Whilst under the current regime the only means examined are those of the applicant for legal aid, the new Act proposes that the Bureau should take into account evidence of income and assets of the applicant and their spouse, and guardian in cases where the applicant is below the age of twenty one years. The Act establishes the criteria of “interests of justice”, “means” of the individual requiring legal aid and a base of “merit”.  I think this provision is quite openly hypocritical given that "child offenders" in Malawi are now defined as  only those under 16 years old age and not 18 as recommended by the UNCRC but yet this Act recognises that those under the age of 21 may be still be under the support of family members.  

The providers of legal aid also include Legal Aid Assistants whose minimum requirements shall be prescribed by the Council of Legal Education, however minimum requirement for Legal Aid Advocates is not set out and so one would assume that a LAA need just be qualified from University in order to practice in the LAB.

Following modern trends in other jurisdictions, the Act recommends that legal aid should extend to education and awareness raising, in conjunction with legal advice and assistance which may also include alternative dispute resolution. Most of the recommendations of the Lilongwe Declaration on accessing legal aid in the Criminal Justice Systems of Africa and its Plan of Action have been included in Act, however, some of the recommendations have not been included. For example the Lilongwe Declaration's suggestion that incentives such as tax exemptions should be offered to lawyers in rural areas has not been included which is unfortunately given the difficulties that the LAD has currently in getting lawyers to staff even the Mzuzu office.

Currently lawyers are few in numbers (less than 250 lawyers are currently in private practice serving a population of approximately 15 Million) generally unavailable in rural areas, and law students are used with limitation. However our partners at the University of Westminster Centre for Capital Punishment Studies have recently set up a programme in the Blantyre LAD office which has been very successful over the last 4/5 months in training students to take bail statements in the prison and they are hoping to integrate this programme into the students clinical legal education within their college.  In addition while Malawi has a very progressive Constitution and Bill of Rights access to Legal Aid is not available at all stages of the criminal justice process. It is particularly rare at police stations and only sometimes available in prisons or the lower courts. Access to Legal aid “at all stages“, is generally unavailable. Our project is currently undertaking research into the viability of using paralegals or legal assistants to represent defendants in the 3^rd Grade Magistrates Courts as while they can currently draft papers and do much of the pre-trial work they do not have a right of audience before the courts and given than only about 10% of defendants are currently represented this would appear to be counter productive.

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.