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Wednesday, February 29, 2012

(Dis)Functioning State of Malawi


Is Malawi now a country without a justice system?  So asks a recent post from the OSISA blog by Richard Lee. He opens his post with the following:

“The old adage that justice delayed is justice denied has never been more pertinent in Malawi – as the whole arm of government that helps citizens to access justice has not been functioning for the past two months. The reason – critical support staff are on strike in order to force the government to review their conditions of service. So apart from the occasional judicial order – such as recent rulings to release Ralph Kasambara on bail – only two arms of government are really operational – the legislature and the executive”

Previously the background to the judicial strike was covered on this blog by Ruth here 

Now after almost fully ignoring the breakdown in the justice system for months the government has this week taken the very unusual (and probably costly) step of publishing letters of correspondence between themselves and the judiciary over a number of years in National newspapers to highlight how they are not bound to the agreement reached in 2006 with judicial workers. In Monday’s Daily Times there was over five full pages of such letters and minutes from meetings between the parties. In these statements the government has claimed that the approved conditions of service are not valid, as the Ministry of Finance was not fully consulted on the conditions which is against the provisions of the Public Finance Management Act, 2003. Given the matter was litigated in Constitutional Case No. 6 of 2006, where the High Court held that the executive should implement the revised conditions and terms of service it is a difficult argument to make and is confusing as to why the government did not make such an argument at that time or appeal the High Court ruling. Given the ruling the executive is ignoring the structure of the constitutional processes and disregarding the rule of law.  Quite simply the government cannot afford to implement the revised conditions and agreed to them at a time when the Presidents D.P.P part were in a minority led government with shaky control over the legislature. Finance Minister Ken Lipenga has stated that it would require the Treasury to find MK2 billion to backdate payments to 2006 and given international donor support has left the government with a serious shortage of funds to meet its budget, additional payment to the judiciary do not rank high on the priorities of this executive.

In addition the very vocal Office of the President and Cabinet has been issuing threatening remarks to the strikers claiming that the strike is illegal and they must return to work.  This is unfortunately yet another example of the executive making inappropriate pronouncements against those who they view as a threat to the system. However the striking workers are claiming they will now never return until their demands are met. However outside of the he says/she says going on between the government and the striking workers there has been almost no recognition in the media of how this strike is effecting the men in women currently detained in Malawian prisons and police stations and the serious human rights and constitutional violations that are being committed upon them on a daily basis. Unlike most aspects of almost anything that happens in Malawi the president has not made any comments about the strike personally. However he has not always been a fan of the judiciary in the past claiming that they tend to rule against his government. In an interesting piece of legislation passed last year his administration passed a bill, which denies citizens the right to apply for an ex-parte injunction against the government and public officers, which is almost certainly going to be found unconstitutional when challenged.

Sometimes numbers speak louder than words and currently those detained in Lilongwe are experiencing severe over crowded conditions. In Maula prison, the adult prison in Lilongwe, when IRLI first stated to collect statistics in October 2011 there were 481 persons being held on remand before trial. 70 of those were on expired warrants (that is excluding homicide cases where the statistics are separately kept as most of the homicide remandees are kept severely over the permitted custody limit). On February 23rd 2012 there were 666 remandees with 457 expired warrants. That is 457 people, outside of homicide remandees, who are being held in unlawful detention in one prison.

The Lilongwe police station is similarly over crowded. The cells in the station are built for about 100 detainees and on the 29th February they had 164 people in custody. Those being held in police custody are not fed and depend on the kindness of family or police officers to eat. Due to the massive influx of new detainees some suspects are being sent to prisons, despite not appearing before a court of law. Under the Constutution of Malawi a person charged with a criminal offence must be brought to court within 48 hours. Before the strike began law enforcement officials were increasingly unable or unwilling to comply with the provisions of the Criminal Prosecution and Evidence Code (CPEC)  which states that as soon as it is reasonably possible and not later than 48 hours after the arrest suspects must be charged or informed of the reason for their continued detention, failing which they should be released.  The 48 hour rule was not always adhered to in practice because of the lack of resources available to the Police to enable them to take suspects or arrested persons to courts of law in time.  Section 42 of the Constitution also states that every person who is detained shall have the right:

(a) to be informed of the reason for his or her detention promptly and in a language he understands
(b) to be detained under conditions consistent with human dignity…
(c) consult confidentially with a legal practitioner, be informed of his or her right promptly and where the interests of justice so require, be provided with the services of a legal practitioner by the State.
(d) to be given means and opportunity to communicate with and be visited by his/her spouse, partner, next of kin …
(e) to challenge the lawfulness of his or her detention in person or through the a legal practitioner before a Court of law
(f) be released if such detention is unlawful

I think it is useful also at this point to highlight the first sections of Part IVA: Section 16 of the CPEC in full:

·      S161 An accused person may be held in lawful custody in relation to an offence while awaiting the commencement of his trial in accordance with this part.

·      S161 B “lawful custody” means that sanctioned by a court order pending trial.

·      S161 C Time shall run upon the expiry of 48 hours after the arrest of an accused person or if the 48 hours expires outside of the ordinary court hours or on a day, which is not a court day, the first court day after such expiry.

·      S161 D sets out that the maximum period that a person accused of an offence triable in the subordinate court may be held in lawful custody pending his committal for trial in relation to that offence shall be 30 days

The 48 hour requirement is so important in a legal system as it affords an opportunity for the detained person to be charged promptly or at least be informed of the reasons for his arrest. It is also an opportunity for the state to continue detaining a suspect with the sanction of the court, thereby ensuring that such detention is lawful. In addition, it offers the court an early opportunity to assess the evidence against a suspect and whether there is any justification whatsoever for continued detention. These are essential safeguards in a democratic state. It is quite evident that since the strike began that flagrant breaches of both the constitution and the CPEC have been ongoing and anybody who has been taken into custody since this time is now being kept in lawful custody. A question arises as well as to how police officers are having persons whom them have arrested commited to prison when they have no judical staff to stamp the commital warrant. The police are required by law to obtain remand papers or committals from the Magistrate’s Court before they send suspects to prison. If magistrates are signing such warrants then they should be correspondingly be signing the release papers for prisoners who have either been granted bail or whose dates of release have passed. In addition questions muct be asked as to how both the police and the defendant in the case of Mr Ralph Kasambara, a prominate critic of the givernment and former Attorney General, were able to have bail and search warrants signed when those who cannot afford to have legal representation have not had the same rights afforded to them.  As Mwaungulu J stated in The Republic vs. Leveleve:

The right under section 42 (2) (b) of the Constitution should be seen as more than a right. Like most rights, it is an ideal. In my judgment it is also a standard, a measure of the efficiency of our criminal justice system. For separation of powers and removal of arbitrariness in the criminal process, the forty-eight hour right ensures prompt judicial control and check on executive actions affecting citizen’s rights. To the citizen, the forty-eight hour right affords the citizen a prompt opportunity to assert and sample rights the Constitution creates for the citizen and test the reasonableness of the state’s deprival of those rights. The framers set forty-eight hours as the efficiency standard for our criminal justice system to bring the citizen under judicial surveillance. In my judgment there are no operational problems.

All accused people also have the right to be tried within a reasonable time. This right is also enshrined in section 42 of the Constitution. The enjoyment of this right does not begin and end with the commencement of the trial but from the moment the accused faces arrest through to the final decision. The State cannot use a lack of resources, and I would argue a strike, as an excuse to violate a detainee’s rights, as was clearly stated by the Malawi High Court:

State organs cannot, however, avoid constitutional duties and responsibilities under the section because of administrative or financial difficulties. The weight a democratic constitution attaches to the citizen’s rights should, in my judgment, be matched with prioritizing desire to attain efficiency levels that uphold and promote rights. Any other approach results in violation of rights

In addition to this a negligible number of detainees have access to legal assistance during their incarceration. Principle 11(1) of the Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment states “a detained person shall have the right to defend himself or to be assisted by counsel as prescribed by law”. Locking people up in without proper warrants, without their being brought before a court of law, in excess of the period of time they are permitted to be held  and without access to a lawyer contravenes the Constitution, which specifically sets out that that every person has the right to personal liberty and dignity.  Section 19 of the Constitution of Malawi states that the dignity of all persons shall be inviolable and that no person shall be subject to torture of any kind or to cruel inhuman or degrading treatment or punishment and each person shall have the right to freedom and security of person which shall include the right not be detained without trial. These rights are being interfered with everyday that the strike continues.

Article 9(5) of the InternationalCovenant on Civil and Political Rights provides that “anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation”, and this provision is applicable to all unlawful or arbitrary arrests and detentions. While it will not resolve the difficulties detainees are facing currently, once the courts resume I can foresee some entrepreneurial lawyers will start seeking out prisoners for unlawful detention test cases which simply cannot be defended given the above set out provisions of the Constitution and which could end up costing the country millions of kwacha in compensation. While trying not to be cynical about the whole situation this will undoubtedly be the first time that many of those prisoners will ever have had any access to a lawyer.

It would be easy to just sit at a computer and dissect the current situation without offering any solutions. However the key question moving forward is what can be done to alleviate the congestion in the interim? Irish Rule of Law International is calling on magistrates and judges to host skeletal court sittings and/or camp courts within the prisons and police stations to alleviate the over crowding and to prevent the widespread abuse of constitutional and human rights which is now endemic in the Malawian system. While its fully admirable that the Law Society, Judges, Magistrates and CSO’s are supporting the striking workers we would maintain they can do so without compromising the rights of the most vulnerable in society. To hold the rights of striking workers above the right to liberty is to put the interests of colleagues above the most vulnerable in society.

In addition we are calling on police officers to grant police bail to those who are alleged to have committed minor offences, which upholds a suspected offenders right to be presumed innocent. The right of a suspect to be presumed innocent is at the heart of a fair criminal justice system. It is one of the principles that influences the treatment an accused person experiences from the investigation to the trial to the final appeal. The right is solidly provided for in international instruments, such as Article 11(1) of the UniversalDeclaration of Human Rights (UDHR), Article 14(2) of the International Covenant on Civil and Political Rights (ICCPR), and Article 7 (1) (b) of the AfricanCharter on Human and Peoples Rights. In addition the granting of bail in Malawi is governed by the Constitution, the Criminal Procedure and Evidence Code (CPEC) and the Bail (Guidelines) Act. The Supreme Court decided in Frederick Mvahe v R. MSCA No 25/2005 that the only consideration when deciding whether to grant bail or not is the interests of justice.  However currently it appears that you can only find justice in Malawi if you have the money to pay for it.

All persons have the right to enjoy respect for their liberty and security. It is manifest that without an effective guarantee of such rights the protection of other individual rights becomes increasingly vulnerable and often illusory.

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