Magistrates Training – Access to Justice

As part of our ‘Access to Justice’ programme we recognised that there was a clear need to engage with Magistrates.  Magistrates are regarded as the primary gatekeepers of justice with their courts alone presiding over 90% of formal criminal cases in Malawi.  While Magistrates’ Courts can often dispose of cases expeditiously, the ability of such proceedings to adhere to fair trial standards has been limited at times.  This is attributed in part to resource constraints where Magistrates are not supplied with copies of the up to date laws of Malawi, not to mention regional and international instruments relating to human rights standards.

The Programme Lawyers, recognising the resource deficit, took the initiative to draft a ‘Human Rights Handbook’  tailored specifically for Magistrates.  The Handbook covers key areas such as human rights standards, the right to a fair trial, bail, sentencing, restorative justice and the special needs of children who come into conflict with the law.

The Handbook was launched at our first workshop in June, which was officially opened by His Lordship Mzikamanda.  In his foreward, His Lordship Mzikamanda recognised that our Handbook was:

the first step in a collaborative process between the Judiciary and Irish Rule of Law International of ensuring the rights guaranteed by the Constitution are adequately protected by courts.

His Lordship stated in his view that the purpose of the handbook is:

to familiarise Magistrates with existing national, regional and international legal protections regarding the right to liberty and security  of the person and to illustrate how the various legal guarantees, if enforced by Magistrates’ Courts in practice, will protect and safeguard the rights of persons arrested or detained.

All Magistrates within the Lilongwe Area have been provided with a copy of the Handbook.  To ensure proper use of the Handbook, and to explore further areas of interest highlighted by the Magistrates in June, we held a follow up workshop in November.  This coincided with a field visit by Mr Michael Irvine, Director of IRLI.  The workshop provided us with an opportunity to raise our profile and the work we are engaged in.  We were delighted to have opening remarks from a distinguished panel of speakers.  We were joined by Mr Anthony Kamanga SC, Solicitor General and Secretary for Justice, Ms Esme Chombo, President of the High Court and Ms Elizabeth Higgins, Ambassador of Ireland.

Mr Kamanga, SC stated that

access to justice is at the cornerstone of every society, Malawi included.  The justice sector is in the process of implementing a new 5 year Democratic Governance Strategy Plan.  The vision of the Democratic Governance Sector is to ensure a “Malawi that is truly democratic, just, safe, secure and prosperous, in which everyone enjoys their human rights and lives a life of dignity”.  This vision is shared by our colleagues at Irish Rule of Law International as witnessed by the program which they will deliver to you today.

This illustrates that our work is supported and endorsed by our partner the Ministry of Justice and Constitutional Affairs and we continue to enjoy a fruitful relationship.

Justice Chombo similarly applauded our efforts and commended our Handbook.  She urged the Magistrates to take

time to discuss and reflect on the many facets that will enable better ‘Access to Justice’…to take this workshop very seriously indeed and that the knowledge to be gained in this workshop should enable you to perform better upon return to your duty stations. 

Her Excellency Liz Higgins also commended the efforts being undertaken by IRLI and was keen to impress that our work was in line with the vision shared by the Embassy within Malawi.  Our work is complimentary to similar initiatives being undertaken by the Embassy in the justice sector to help improve democratic governance.

The first half of the workshop consisted of a series of presentations which focused on the Rules of Evidence, Right to a Fair Trial, Sentencing and the Special Protection of Children in Conflict with the Law.  After a break to reflect on the lessons learnt from the morning in the afternoon we held two ‘moot’ courts and divided into four separate groups so that we could put into practice what had been learnt.  For the moot court we were joined by our friends at the Malawi Police Services and the Malawi Social Welfare Services.

We concluded the workshop with a round table discussion from the various stakeholders around the challenges facing meaningful ‘Access to Justice’.  Whilst there were many challenges lack of resources (financial and personnel), capacity and co-ordination; there was unanimous agreement that one of the keys to unlocking the solution was increased communication amongst the stakeholders so that vulnerable persons within the criminal justice system have their human rights protected.

Eithne Lynch

Legal Literacy in Kachare Boys Reformatory Centre

Kachere Boys Reformatory Centre was originally built in the 1960s as a remand centre.  While over the past two years significant strides have been made in improving conditions at Kachere, sleeping and sanitary conditions remain sub-standard. Kachere was originally built with a capacity for 70 persons.  While writing this post today I am saddened to say that there are 202 boys being held at Kachere, 33 are awaiting trial (16 of who are answering charges of homicide) with the remainder serving sentences for a variety of offences from simple theft to robbery and homicide.

Ruth facilitating training

The vast majority of the boys held at Kachere have never had access to a lawyer to assist them in their criminal case. Recently we have begun to work more closely with the paralegals from the Paralegal Advisory Institute Services (‘PASI’) who visit Kachere regularly to assist on aspects of the boys’ legal defence. In the past PASI have held legal literacy programmes in Kachere to educate the boys about court procedures, what they can expect when standing before a court and the steps that they should take to improve their access to justice.  Last week we facilitated a ‘legal literacy programme’ with PASI.  The programme was delivered by Mr Alex Nkunika, paralegal with PASI.  Mr Nkunika has many years of experience in delivering programmes of this nature with vulnerable youths.  His interaction with the boys was excellent.  The use of theatre to demonstrate the importance of accuracy in everything they say before a Magistrate or Judge was a clever way of imparting this important message.  Mr Nkunika was able to assure the boys that in the absence of a lawyer it is within their abilities to tell their ‘stories’,  clearly demonstrate the importance of telling the truth and show the importance of this in accessing justice in their case.

As a result of this intervention it is hoped that more boys will be empowered to advocate for their own rights and find the voice to demand access to justice!

By Ruth Dowling BL

Generation Hope – A Poetry Anthology By Young Malawian Writers

A couple of weeks ago I stumbled across the Lilongwe Cultural Festival which provided an opportunity for artists, playwrights and poets to showcase their work to the public. It was at the festival that I came across a publication call ‘Generation Hope’. This publication serves as a platform to allow young Malawians voice their views on the current challenges and opportunities facing them.

There is one poem in particular that I wanted to share with the readers of our blog as it reasonates quite strongly with our project, ‘Access to Criminal Justice’. The poem is called ‘Decades to Come’ and was written by Boniface Wizilamu. Like the poet we believe that there is hope for Malawi that solutions can be found, obtacles overcome. What is required is patience, time and perseverence.

 DECADES TO COME

by Boniface Wizilamu

Dry your tears, Mother Malawi

weep not again

for your glory is about to retain

face your eyes to the east

and expect not a beast

but a peep of the sun

struggling to rise above the mountain

whose shadow has masked your beauty

to deny you a chance to sparkle

like a pistol, the brightest star

in the sky that twinkles

now a dwelling den, for crooks and con artists

worry not then, watch until it fully shines

and uncover the beauty that is truly fine

Question not this prophecy

a true vision it is, not a fallacy

that warm heart shall give birth to peace

that treasure hidden within,

shall unlock the ingress of prosperity.

Together we shall turn a new leaf

of oneness and friendliness

and the willingness to work as a team

even in times when the chances

of survival seem slim

that’s your destiny, Mother Malawi

mark my words, it’s just in a few

decades to come.

By Eithne Lynch

Ngala Mountain – The Mountain of the Smile

While our friends and family took on the Blackstairs Mountains at home, the programme lawyers decided to take on a challenge of our own – to summit Ngala Mountain. As many of you know Ngala holds a special place for us here in Malawi because it is this mountain that we scaled with some vulnerable children that we work with. Ngala represents a turning point in their lives as they are taken here by us when they successfully complete the 12 week behaviour change programme as part of their diversion conditions from police custody. For many of these children this will be the first time that they are treated to a weekend of fun as a reward for their hard work. In many cases their lives are dedicated simply to surviving. Depending on who you talk to Ngala, means the mountain of the ‘mouth’ or the ‘smile’ due to the large gash in the rock face at the front of the mountain. I like to think of it as the mountain of the smile, given the many fond memories we have of it.

That's me in the blue at the front struggling with the steep inclines!

We left Lilongwe early Saturday morning as we wanted to start the climb before the heat of the day really began to hit. We are now in the height of the summer and temperatures often rise to 35 degrees celcius by 9 in the morning. After being greeted by Chief Mkanga at his home and exchanging gifts we set off at 9:30 am to start the climb. We were escorted by the Chief and the Village Head Man on our hike together with a gaggle of excited children from the village who were fascinated by this bunch of ‘Muzungus’ (white people) who wanted to climb their mountain. Needless to say we Muzungus were put to shame by the energy of the children who ran up the steep slopes with not even shoes on!

Chief Mkanga’s son brought a battery radio with him and we all enjoyed the music as made our slow assent up Ngala. We reached the summit approximately 1 hour 30 minutes after starting and we greeted with breathtaking views of the surrounding country side. We were regaled with stories by Chief Mkanga of how his tribe fled high up into the mountain to escape the neighbouring Ngonis’ who wanted to claim their land many years ago. Fortunately now, we were assured by Chief Mkanga that they no longer face these problems but he is often called to mediate on disputes. I told him about the community based work we were doing and we exchanged ideas on top of Ngala. I also told him that our friends in Ireland were doing a hike to support our work in Malawi. Chief Mkanga assured me that my Irish friends would be most welcome to come to his village and climb Ngala!

Left to Right – Chief Mkanga, Jo Seth Smith, Suzanne Byrne, Lena Ryde Nord, Patrick Gerathy, Eithne Lynch, Mehallah Beckett and Village Group Head Leader.

After taking the obligatory photos to prove we actually made it we began our walk down the mountain, all a little more tired than when we set out but with huge grins and a sense of pride at our accomplishments! 

By Eithne Lynch, Programme Lawyer with the Malawi project

Ngala Mountain – Climb ‘in’ Malawi!

This coming Saturday while family, friends and supporters tackle the Blackstairs Mountains in Ireland to raise funds to support our work in Malawi, the IRLI lawyers will take on Ngala Mountain located on the outskirts of Lilongwe.

Ngala holds a special place for us here in Malawi because it is this mountain that we scaled with some of the vulnerable children that we work with.  This mountain represents a turning point in their lives as they are taken here by us when they successfully complete the 12 week behaviour change programme as part of their diversion conditions from police custody.  For many of these children this will be the first time that there are treated to a weekend of fun as a reward for their hard work.

Ngala is a tough climb with steep sheer slopes and will take us approximately 2 hours to summit.  We are being welcomed by Chief Mkanga and are excited to return to the mountain that holds many fond memories for us.

Best of luck with the climb in Ireland and we will be sure to let you know how we get on here in Malawi!!

Ruth and Eithne

Diversion Training – Kanengo Police Station

During our first year in Malawi we developed a training programme around the principles of diversion and restorative justice. Diversion can be defined as the channelling of prima facie cases away from the formal criminal justice system with or without conditions.  It places the victim firmly at the centre of the decision making process and by so doing seeks to restore harmony to the community within which the offence was committed.

It became apparent to us early on in the project that there were many offences of a minor nature which could be dealt with by police officers at the station level.  In our first year we concentrated on up-skilling officers from the Lilongwe Model Police Station, Area 3.  This led to a greater co-ordination amongst officers with regards the treatment of minor offences, which in turn freed up Magistrates’ time to deal with crimes of a more serious nature.

With the consent of the Commissioner of Police Central Region, Mr Nelson Bophani and Mr Happy Mkandawire, Officer in Charge Prosecutions and Legal Services, we have now expanded our training programme to other stations in the Lilongwe area.  We have collaborated with the Paralegal Advisory Services for this initiative.  In particular special mention and thanks must be given to Mr Alex Nkunika who was a key co-ordinator in putting the workshop together.

It is our intention to target stations whose statistics demonstrate a high incidence of crime.  The first police station we visited in October was the Kanengo Police Station.  The aim of the workshop was to develop a common understanding among all police officers of all the processes involved in diversion.

Workshop participants should now be able to:

• Understand the concept of restorative justice and specifically diversion

•  Implement a basic version of diversion in their police station, including a tracking and monitoring system

• Understand the relevant information that should be taken into account in assessing suitability of diversion

• Have increased their knowledge of new legislation

As part of the workshop we invited officers from the Lilongwe Model Police Station, Area 3 with whom we have been working with over the past year.  Mrs Fanny Chimbaya and Mr Yotamu Chaonaine (prosecuting officers from Area 3) shared their experiences with the participants about how they use diversion in their daily duties, the obstacles they faced initially and the successes they have witnessed.  Their ability to articulate so eloquently the use of diversion to their colleagues was a real pleasure to witness and a testament to their hard work over the past year to make diversion a reality.

We were delighted that Mr Mkandawire attended the entire workshop.  The presence of such a senior member from within the Malawi Police Services lends a high degree of credibility to the initiatives being undertaken by Irish Rule of Law International.  The support of Mr Mkandawire and the officers we work with from Area 3 Police Station will enable us to expand our programme and to increase access to justice within the criminal justice system.  We will keep you posted on our developments on the diversion programme.

Eithne Lynch, Programme Lawyer with the Malawi project

Access to Criminal Justice Malawi - A Time to Reflect on the Highs and Lows of Year One

The ‘Access to Criminal Justice – Malawi Project’ commenced in July 2011 with the placement of three lawyers by IRLI within the Department of Legal Aid and the Department of Public Prosecutions.  IRLI is most grateful for the continued assistance of Irish Aid which has enabled this project to continue this year and to all who have supported us in our first year and continue to do so.

As we embark on the new phase of the project, Ruth Dowling BL (Department of Legal Aid) and Eithne Lynch, Solicitor (Department of Public Prosecutions) reflect on their experiences from the pilot year. We would like to share the highs and lows, of living and working in Malawi, the barriers to change and the impact that IRLI’s work has on enabling the most vulnerable members of society to access criminal justice.

Apart from the usual acclimatisation involved in moving to a country so far removed from our own in terms of climate and culture, the past year has proven one of the most fascinating and dramatic periods in recent history for Malawi.  It has been a year of political and economic unrest with Malawians demanding better leadership, governance and solutions to the many problems facing them. Two days of mass protests in July 2011 rocked the country where 18 people were killed and scores injured after police fired live ammunition at the demonstrators.  With rising concerns over the autocratic nature of the late President Bingu Wa Mutharika’s rule and violations in human rights, key donor states including the UK and the US withdrew key financial support from the country.  Outspoken critics of the regime were arbitrarily arrested and imprisoned.  The arrest of the now Minister for Justice and Attorney General Mr Ralph Kassambara in April this year resulted in international condemnation by media and rights based groups.

The untimely passing of Mr Mutharika in April this year and the swearing into office of now President Joyce Banda has restored calm and a sense of hope in the future of Malawi is now evident.  While vast challenges remain, the long shadow which hung over the country has passed and there is without doubt a renewed appetite for the protection of human rights.  It is against this backdrop that we journeyed through our first year in Malawi.  While there were and are many challenges working on access to criminal justice in Malawi, overall the highs outweigh the lows.

Our project aims were to tackle overcrowding in the two target prisons through capacity building, training of police officers and magistrates, running of bail clinics, involvement in the prosecution led diversion projects and progression of minor cases.

Our initial few months were spent developing good working relationships with key stakeholders within the criminal justice system.  In addition to our colleagues in the Department of Legal Aid and the Director of Public Prosecutions, we have developed an excellent network through the Malawi Police Services, the Malawi Prison Services, the Department of Social Welfare, local civil societies the Paralegal Advisory Services Institute and the Catholic Commission for Justice and Peace and international players such as Venture Trust, UNICEF and the European Democratic Governance Working Group. We recognised early on that no one body can tackle the overwhelming problems alone and greater synergy amongst key players was needed.  Throughout the year we worked hard on ensuring that our strategies aligned themselves with the good work being undertaken by our partners on the ground.

In the early stages of our project we faced many challenges due to an ongoing nationwide court strike over non payment of wages owing.  Unfortunately, this had a serious impact on our work in the prisons, as the courts were not functioning during this time and no bails could be granted.  However, every cloud has a silver lining and this strike enabled us to promote the use of alternatives to custody with the police.  We held training sessions with the police on the use of diversion[1] so that minor offences could be dealt with outside the formal court system.  The manner in which the police have embraced this approach to justice and their willingness to implement it in the Lilongwe Police Station has been an overwhelming joy to witness.  There is now a dedicated unit within the police station which filters cases that are suitable for diversion and a register has been established with the support of the Officer in Charge.  This ensures that the lessons learnt from this approach do not leave when IRLI leaves but rather becomes an ingrained approach by the police.

We have also set up a diversion aftercare program in conjunction with Venture Trust.  Together with Venture Trust we have trained police officers and social welfare officers, aswell as young boys who were previously inmates in Kachere Juvenile Prison, to deliver sessions over a 12 week period to young people who have come into conflict with the law.  The young people on the course are given the tools necessary to make better life decisions and coping mechanisms to face the challenges that they meet.

On the defence side of things our work focused on the provision of legal services to inmates in two of Lilongwe's overcrowded prisons – Maula Adult Prison and Kachere Reformatory Centre. Maula Prison was built to hold 800 inmates but today it holds approx 2000 inmates. Conditions are so bad for the male inmates that they have to sleep like sardines in a tin with each person lined up along-side the other. With such congestion disease spreads quickly, with poor hygiene standards and inmates only receiving one maize meal a day.

There are 500 men and women awaiting trial at any one time, with approximately 150 of whom are awaiting trial for homicide. Non – homicide matters are dealt with more quickly due to the minor nature of the offences. However these homicide matters are often left unprosecuted for years. When IRLI started work in Maula Prison there were men in custody since 2004 that had never been to court. Due to the shortage of lawyers in the country, and the under–funded Legal Aid Department, these men had never discussed their case with a lawyer and had never been offered bail by a court.

We initiated bail clinic consultations with those awaiting trial the longest and worked through the list in order. In our first year we assisted 34 bail applications and variations.  23 have been released on bail, most having been held for between 4 and 8 years in illegal detention. The 17 longest serving pre-trial detainees have been granted bail, covering those who have been in prison since 2004, 2005, 2006, 2007 and 2008.  Due to our intervention, there is currently no one on remand in Maula prison since before 2008.

In December 2011 a 28 year old man who had remained in custody for seven years - since 2004 - without having been to court, and without having met a lawyer, was granted unconditional bail.  The court stated that if the State failed to bring any proceedings within six months the High Court will consider the accused discharged of all charges. Her Worship, Justice Chombo of the High Court in her judgment stated, “This Court decries the lack of seriousness with which the DPP handles these matters”.

In July 2012 we secured the release of a man whose homicide case dated back to 1992. Whilst the court would not strike out this case despite the 20 year delay in prosecuting this man, a 6 month time limit was placed on the prosecution. He had spent 7 years in pre-trial detention from 1992 – 1999 and was returned to Maula in 2009. He had spent a total of 10 years in pre-trial detention until his release was secured.

The congestion in the prisons is so great that it was increasingly difficult to transport the volume of prisoners to court when required. A system developed where ad hoc ‘camp courts’ are held within the prisons to bring justice directly to those pre-trial detainees who are charged with minor offences. These detainees would otherwise stay for prolonged periods in detention without appearing in court or having access to bail, due to the shortage of fuel or the struggling court system. All relevant personnel, including a Magistrate, travel to the prison to conduct these courts. A selection of suitable pre-trial detainees for the court is made in partnership with a paralegal working in the prison and the relevant social worker. A legal aid clinic is held in advance of the court to provide the detainees with legal assistance.
Camp courts are very effective means of moving cases in bulk through the justice system.  It was originally believed that we would not have funding to run such an activity.  However in December 2011, we secured an individual donation specifically for this intervention, which enabled four such camp courts to be held during the pilot year. These camp courts brought 38 pre-trial detainees before a Magistrate so their case could be progressed and a bail application made.  18 were granted bail and 3 cases were discontinued. Through our intervention 38 people had access to a court which might not have happened for some time without this prison court. For those people where bail was refused or where the case was adjourned their cases can be said to have been successfully progressed as their file is now open before the Magistrate and also they are now aware of their rights and can ask their families to support their case.

More specifically the benefit of the camp court mechanism is that prisoners see the law in action and learn that they can have access to legal assistance. Magistrates also 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 become more thoughtful about the utility of alternatives to prison in appropriate cases. Finally, prison officers come to recognise that facilitating access to justice is part of their role.

There are also difficulties facing the court system, which is seriously under staffed and resourced. We have met many prisoners who are waiting up to 2 years for judgment after their case was heard. We have initiated a programme with the court where these judgments will be followed up and either judgment delivered or case discharged. Otherwise these men would sit in prison, waiting.

A prisoner was arrested for murder in November 2006. His trial commenced in August 2010 however it was adjourned due to non-availability of witnesses. It was not completed until October 2011. This man is still waiting for his judgment. Even though his trial has been concluded he has not been found guilty or innocent but has spent almost 6 years / 70 months in custody. 

We witnessed first-hand the difficulties facing Magistrates in trying cases. Often times they do not have access to the laws of Malawi, case law or international best standards, for example with regards sentencing, fair trial and treatment of young persons who come into conflict with the law. Recognising this need we authored a Human Rights Manual which was disseminated to all Magistrates within the greater Lilongwe area (20 in total) in June of this year.  The most heartening thing has been seeing the use of our manual in court and the appreciation which we have received for the research and effort which was put in to compiling it.  Above all else however is the hope that it will lead to a higher standard in the use of fair trial procedures and improve access to justice for the most vulnerable members of Malawian society.

As you can see the first year has been one full of interesting times. We are sure that this year will continue to produce some eye opening anecdotes and we look forward to sharing these with you all.

By Ruth Dowling BL and Eithne Lynch, Programme Lawyers with the Malawi project

Judiciary to Encourage Non Custodial Setences

According to Nyasa Times at a court users meeting in Ntchisi last week members of the judiciary made comments encouraging the use of non-custodial sentences. Given the overcrowded nature of Malawi's prisons a change in attitude of this type would be greatly welcomed. 

The scarcity of legal personnel coupled with infrastructural deficiencies on one hand and the increasing levels of poverty and unemployment on the other, has culminated in seriously over crowded prisons in Malawi. Maula prison alone is operating with over double the numbers of persons it should hold.

Currently many suspects of petty crimes are denied access to primary legal interventions like being taken to court and granted bail and are then handed down stiff sentences. As such many suspects end up spending unnecessarily long periods in prison and police cells, a situation, which has vast social-economic implications on both the individuals and government. This current state of affairs is detrimental to the country’s progress in a number of ways. Firstly productive citizens who should have been contributing to the country’s national development as well as providing for their families are prevented from doing so. Secondly longer periods of stay in prison culminate into the learning of bad behavior from more experienced criminals, it also makes many suspects vulnerable to communicable diseases. Thirdly this scenario creates room for corruption for remandees who desperately want to get out of prison. 

The need for alternative interventions in this area is clearly highlighted by data collected for a case management report released in August 2011 by OSISA, which suggests that 8,000 people, mostly young men, are admitted to pre-trial detention, from a sample of six Malawi prisons every year.  This amounts to 1 in every 250 Malawian men, which has a significant socio-economic impact at a societal level.  

IRLI believe that a focus away from custodial sentences for minor offences towards rehabilitative measures could work as a very effective an intervention strategy in the criminal justice sector in Malawi.

 

Maula Musings...The Problem with Bail

Today in Maula prison there are 489 people awaiting trial, of those there are approx 200 people being held in unlawful detention as their warrants have expired and the pre-trial detention limits have not been adhered to. 63 of those have been in prison since before 2010 having never been to Court (some since 2005).

In a prison built for 800 people Maula has approximately 2000 inmates at any given time. The conditions fail to live up to international standards with inmates receiving only one maize meal a day, lock – up is for 16hours from 4pm until 8am the following morning and illnesses are not being treated due to the lack of medical supplies getting to the Prison Medical Officer and a severe shortage of funding for such supplies.

The cells are so crowded that people sleep like sardines in a can and if you are lucky enough to have some money you can pay the higher up inmates to “rent” a sleeping place beside the wall so you don’t have to face another inmate.

From Mountjoy in Dublin to Maula in Lilongwe one must bear in mind that prisons the world over struggle to cope with the amount of people sent to them by the police and the courts. Ireland is currently also being criticised for the conditions of it’s prisons. Amnesty International has reported that conditions in Irish prisons continue to fall below standard. The annual report on the State of the World’s Human Rights, notes that both the UN Committee against Torture and the European Committee for the Prevention of Torture have raised concerns about the prison conditions in Ireland, specifically in relation to overcrowding, lack of in-cell sanitation, health care, and violence between prisoners in some prisons. However the fundamental difference between Maula and Mountjoy is that the criminal justice system in Ireland recognises that it has an obligation to protect the rights of prisoner like it does any other citizen and where it fails to do that there are repercussions.

The Constitution of Malawi has certain provisions which outline the protections which should be afforded to prisoners and those accused of crimes in the criminal justice system – the Right to Bail, the Right to a Fair Trial etc. The Criminal Procedure & Evidence Code 2010 goes further to specifically outline certain procedures for the granting of bail and on pre-trial detention limits. Malawi even has a Bail Guidelines Act 2003 which sets out specifically how the Police, Magistrates and Judges should deal with bail matters. However it is unclear what the repercussions are when a State Authority does not adhere to these strict criteria.

Malawi Prison Services are asking for help to deal with the severe congestion they face in their prisons on a daily basis. While on paper the Malawian Criminal Justice system recognises the protections which should be afforded to those within the criminal justice system, it does not always happen in practice. One very big obstacle to securing bail for those in unlawful detention is in the fact that there are severely over complicated bail procedures, requiring excessive and unneccessary administrative procedures to ensure a person is not just ‘granted bail’ but is actually released from custody.

Malawi unfortunately has very few lawyers working in the area of criminal justice. Most of those who are left unaided in prison are those who are too poor to hire a private lawyer. These remandees must then rely on the services of the struggling legal aid department to get them access to justice and access to the courts. When a person is left for years in unlawful detention they cannot afford to pay a private lawyer get them justice, they simply wait for a legal aid lawyer to bring a bail application.

For those lucky enough to come into contact with a Legal Aid lawyer they often still have to wait some time before being released if at all. A successful High Court bail application does not guarantee that person will be released. The system for bail seems to make it unnecessarily time consuming to complete the process with the end result a Legal Aid lawyer will bring the application, the bail will be granted but due to time constraints / fuel constraints / printing constraints / excessive suereties imposed/ power cuts a person will still be in prison 2 years after being granted bail. IRLI have recently delt with a case where a 16 year old boy was arrested for murder in December 2009, bail was granted in April 2010 however the boy remained in prison until January 2012. Irish Rule of Law, as legal aid advocates worked with the prosecution and the prison services to secure the boys release.

Case and file management is negligable and results in lost files in the court system, in addition to this if a bail applicant has untraceable sureties he will remain in prison, often for a further number of years. As most person’s granted bail will not be so without at least one surety this has resulted in an effective denial of bail to many long term homicide detainees.

In our work a number of weeks ago bail was granted by the High Court for 9 homicide remandees. When the Legal Aid lawyer brought the applications the Judge gave one order for bail for all applications and did not go through each one separately. Some of these applications were for people who have been in custody since 2005 and so do not have access to relatives, do not remember phone numbers and have not worked for 7 years and so do not have access to cash to make a lodgement to the Court. The Judge ordered for 2 sureties to be offered and each defendant to pay 10,000 MK cash / $40 as a bond (In a country where GDP is $351 per capita). Even in cases where the remandee will say bail was granted a few years ago but he has heard nothing since the whole process must be followed anew because when lawyers go to the criminal registry at the Court to locate a file to check about previous court orders, the clerks say it cannot be found, just file new papers.

Just to illustrate the difficulties that are in place even after bail is granted here are the steps that must be taken bail has been granted by the High Court:

1)    Visit Maula prison to gather names and numbers of sureties

2)    Not all remandees have access to phone numbers as they have not seen a family member for 4/5/6/7 years

3)    Buy phone credit and find a paralegal to call the sureties as they will usually only speak Chicewa

4)    Ask sureties to make the trip to Lilongwe to meet the Legal Aid lawyer to arrange date to go to Court when they could be from anywhere in the Central region

5)    Most phone numbers no longer work as people change their phones quite often so another trip to Maula to get another phone number if possible.

(On must also bear in the mind the difficulty in finding an available paralegal to attend and waiting for a time when the Legal Aid car is available and has access to fuel)

6)    When the sureties speak to the Legal Aid lawyer a date is arranged where they will go to Court with the Legal Aid lawyer and a DPP lawyer to meet the HC Registrar to examine the sureties (again fuel dependant for the lawyers to travel from their offices to the court house)

7)    The lawyer then drafts the bail bonds which must be printed multiple times

8)    All papers must be served physically at the DPP offices, the police prosecution headquarters and the Courts

9)    Another trip to Maula will be needed to get the remandee to sign or finger print stamp if they cannot write, the bond

10) When eventually all Court matters are dealt with, the complete bond must be physically served on all parties. Then Legal Aid lawyer has to  go an get and then bring a police officer from the station, to Maula prison to facilitate the release of the remandee

For cases where no surety can be located the lawyer must go back to court to vary the bail order...

11) Then the summons is drafted to ask the High Court to vary the order for some bails where the remandee was unable to meet conditions due to a lengthy stay in custody, which could be said to be tantamount to a denial of bail.  

12) Once bail varied to “own surety” the releasing process begins again….

Sometimes when the lawyer gets to Court to vary the bail order, the original file will sometimes suddenly appear and when lawyers look through a note made by High Court Judge many years before  it may say something along the lines of “Bail withheld but applicant must be brought to trial within one month and if not then bail is unconditionally granted”…… However the file had not been available nor examined so this was not highlighted to the Judge to allow for immediate release until 4 years later…

This highlights just some of the systematic difficulties that lawyers have when dealing with what you would consider the simple issue of bail.  The final difficultly lies in the fact that the longest serving remandees have no relatives to help and so have no way of getting home to the place where the Court has ordered them to remain and where they must sign on at the local police station…. Thus the accused could already be breaching their bail by  not being able to afford to get back to their home village and also driven into a life of petty criminal activity in order to simply survive... 

Ruth Dowling B.L

Breaking News: Bruno Kalemba New Malawian DPP

Mr Bruno Kalemba, The Chief Legal Aid Advocate or "The Chief" as he is affectionately known in the Legal Aid Department has just been made the new Director of Public Prosecutions by President Jyce Banda, replacing Rosemary Kanyuka in the position.

We at IRLI wish Mr Kalemba the best in his new post and hope to continue our access to justice work with him from the office of the D.P.P.

Ruth Dowling B.L

UN Guidelines on Access to Legal Aid

Due to an ever increasing workload in the aftermath of Judicial Strike we've been a bit quiet on the blog lately but Ruth Dowling is back today with an excellent article on the new UN Principles and Guidelines on Access to Legal Aid in the Criminal Justice System.

On 27th April 2012 the 21st session of the Commission for Crime Prevention and Criminal Justice (CCPCJ) adopted the resolution for the UN Principles and Guidelines on Access to Legal Aid in the Criminal Justice System  

This is ground breaking guideline as it is the first international instrument on legal aid. The document contains 14 principles recognising the “Right to Legal Aid” and how to ensure this right is available to Member State’s citizens.  There are 18 guidelines outlining how a functioning Legal Aid system should be implemented.

The notion of fair trial and access to justice is enshrined in international law through many different pieces of key legislation. Most notably in 1948 the Universal Declaration of Human Rights, outlined the key principles of equality before the law and the presumption of innocence, as well as the right to a fair and public hearing by an independent and impartial tribunal, established by law, along with all the guarantees necessary for the defence of anyone charged with a penal offence, other minimum guarantees and the entitlement to be tried without undue delay. In 1966 the International Covenant on Civil and Political Rights went further stating in Article 14 that everyone charged with a criminal offence shall be entitled to be tried in his or her presence and to defend him or herself in person or through legal assistance of his or her own choosing or assigned to him or her where the interests of justice so require, in a fair and public hearing by a competent, independent and impartial tribunal established by law.

The Lilongwe Declaration on accessing legal aid in Africa was a significant step regionally, recognising the difficulties many African nations have in meeting obligations in respect of legal aid provision. However the new guidelines provide very positive guidance for countries like Malawi. Malawi has drawn up a new Legal Aid Act which was published on the 8^th April 2011 but it has yet to be enforced. The new act looks at legal aid as a service provided to persons by way of legal representation, legal advice or legal assistance and allows for the appointment of Legal Aid Assistants which will increase the number of professionals offering legal services. It will establish a new fund to be known as the “Legal Aid Fund” which will receive money from Government and from donors and CSOs. The Legal Aid department in Malawi is in need of much financial help. Malawi spends approx €125,000 on legal aid for both civil and criminal matters annually. This is about €0.01 per capita on legal aid. This is compared to approx €315,500 on the DPP’s office alone. While the police prosecutor’s also have a separate budget for the prosecution of minor files. The DPP offices have prosecution lawyers to prosecute “heavy-weight” offences i.e murder, rape but it is the police prosecutors that prosecute 90% of cases.

The total number of employees in the Legal Aid Department as of November 2011 was 176 posts of which only 24 are for lawyers. Currently there are only 5 Legal Aid Advocates working in the Lilongwe Legal Aid office and not all of them are available for criminal matters. The Legal Aid Department offices are only situated in the three main cities - in Lilongwe, Blantyre and Mzuzu. The Legal Aid Department does not have representation in the remaining districts. The Mzuzu office usually operates with only one lawyer. Most people are living in rural areas and so transport to the cities to see a lawyer proves too costly.

As a result of this 90% of criminal cases will generally proceed without the accused person having and legal assistance or representation. At present there are 489 people awaiting trial in Maula prison in Lilongwe, 63 of those have been in prison since before 2010 having never been to Court (some since 2005). There are at least 6 people waiting longer than 12 months for judgment after their trial concluded. Unfortunately Legal Aid, despite it's best efforts, does not have the capacity to follow up these cases with the courts on a regular basis.

This new resolution invites Member States, consistent with their national legislation, to adopt and strengthen measures to ensure that effective legal aid is provided, in accordance with the spirit of the Principles and Guidelines. Legal aid is an essential element of a fair, humane and efficient criminal justice system that is based on the rule of law.

In line with the Lilongwe Declaration and the Lilongwe Plan of Action for the implementation of the Declaration, the new Principles and Guidelines follow a broad concept of legal aid.  The term “legal aid” includes legal advice, assistance and representation for persons detained, arrested or imprisoned, suspected or accused of, or charged with a criminal offence and  for victims and witnesses in the criminal justice process that is provided at no cost for those without sufficient means or when  the interests of justice so require. Furthermore, “legal aid” is intended to include the concepts of legal education, access to legal information and other services provided for persons through alternative dispute resolution mechanisms and restorative justice processes, all matters in which Irish Rule of Law has been exploring within Malawi since our arrival almost a year ago. 

A functioning legal aid system, as part of a functioning criminal justice system, will reduce the length of time suspects are held in police stations and detention centres, in addition to reducing the prison population, wrongful convictions, prison overcrowding and congestion in the courts, and reducing reoffending. It will also protect and safeguard the rights of victims and witnesses in the criminal justice process. Legal aid can be utilised to contribute to the prevention of crime by increasing awareness of the law.

Regrettably, many countries still lack the necessary resources and capacity to provide legal aid for suspects, those charged with a criminal offence, prisoners, victims and witnesses. The United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, which are drawn from international standards and recognised good practices, aim to provide guidance to States on the fundamental principles on which a legal aid system in criminal justice should be based.

With this new resolution it is hoped Legal Aid systems in pooer countries like Malawi will develop and help to ensure that no person is left sitting in prison for years without access to a lawyer.

It will now proceed to the Economic and Social Council in June and then to the UN General Assembly for final adoption in December of 2012.

Positive Media for Malawi

For the first time since our project has been based in Malawi the country is getting some much needed positive international media. This week the Economist has run an article entitled " Rejoice, it's Joyce" and the Guardian ran an article entitled "Malawi's Joyce Banda puts women's rights at centre of new presidency".

I particularly liked the following comment from JB in the Guardian article

"Africa is changing... I hope you know that we are doing better than most countries. America is still struggling to put a woman in the White House but we have two, so we're doing fine. This is what people did not expect us to achieve but we have."

“Mwai Wosinthika”- An alternative to custody for young people

Irish Rule of Law International (Malawi) and Venture Trust held a stakeholder meeting yesterday for the launch of a new pilot initiative they are starting called “Mwai Wosinthika”-  An alternative to custody for young people. This is an extension of a project currently being undertaken in Kachere Juvenile Reformatory centre by Venture Trust and the Diversion programme being implemented by IRLI in order to try and "divert" young people aawy from the criminal justice system through behavioural change.

The project is targeting any vulnerable young person at risk of or currently in conflict with families, school authorities, traditional authorities or the Police and courts.  Those due to appear before the courts could be referred instead by Police or Social Welfare or the Courts themselves to Venture Trust Malawi and other government agencies.   The  proposed pilot project has the potential to offer a direct alternative to custody for young offenders who have “exhausted” existing options and require an intensive level of support and supervision within the community via probation services.  (Referral criteria such as number of offences, severity and the level of risk posed to themselves and others).

“Mwai Wosinthika” aims to give young people the chance or opportunity to change in both their circumstances but perhaps more importantly and more empowering by giving the responsibility and therefore a choice about wanting to make a change in their behaviour and therefore how they deal with life’s problems.    One major consequence of which it is hoped will be the reduction in numbers of young people that are placed in custody so that they can continue to learn in school or become productive members of their community and Malawian Society.

The potential participants will be asked the following key questions:

1.     Are you ready and committed to change?

2.     If you are ready then Venture Trust along with partner agencies can help support you in that change process.

3.     School and education is highly encouraged as part of the process of change.

4.     It will involve hard work and attending a programme which you must commit to until completion.

5.     There is no money involved.  Do you understand that Venture Trust offer support and guidance as well as a model of thinking that will last for life.

The project emphasises that behaviour change has to start with a willingness on the part of the participant to take responsibility for his or her actions. There are a number of stages to the pilot programme. 

Stage 1: The young person will receive an one-to-one” baseline” initial interview from a Venture Trust trained development worker, probation officer or social worker to assess suitability for the project

Following the assessment and the young persons own self-assessment of their “level of commitment” to change a decision will be made to take them on. 

Stage 2: The young person will agree to attend a programme over 12 weeks in which will emphasise the main areas ofSelf-confidence; education & employability; behaviour and attitude and finally reducing the risk of re-offending. 

Stage 3: Dependant on their progress which is benchmarked by use of Venture Trust’s own monitoring & evaluation system the young person may be invited to attend a adventure weekend away from the  sometimes negative distractions of the city. 

Stage 4: Upon completion of the programme the young person will receive a certificate of their achievement and be supported to prepare their own action plan (“dongo solo”) which focuses on working towards a life objective by setting goals for the following year.  

(In an event of a young person been ordered by the Court to undertake the programme and not completing this will be communicated to the court by means of the appointed probation officer.)

Who are we?

Irish Rule of Law International is a joint initiative of the Law Society of Ireland and the Bar Council of Ireland, dedicated to promoting the rule of law in developing countries.  IRLI seeks to harness the skills of Irish lawyers in using the law as a means of tackling global injustice and empowering all people to live in a society free from inequality, corruption and conflict.

Venture Trust is a Scottish based charity that has grown significantly over  the last ten years as its approach of working with vulnerable young people (often whom others will not work with or who are excluded from school or life’s opportunities) offers an welcome alternative to custody for Magistrates, courts and police services that are already stretched due to budget and capacity. In 2011 Venture Trust was invited by the Malawi Government under the sponsorship of the Scottish Government as part of the Scotland-Malawi Partnership Agreement to work initially with vulnerable young people in Kachere Prison (now Kachere Reformatory Centre).