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..