We are very pleased today to have a guest blog post by Dr. Elaine Dewhurst. Elaine is currently a lecturer in law at Dublin City University and undertaking a Post-Doctoral Fellow with the Max Planck Institute for Demographic Research until January 2014.
The Constitution of Malawi contains robust explicit protections of liberty and due process rights, including the right not to be detained without trial, the right to bail and the presumption of innocence (Constitution of the Republic of Malawi – Act No. 20 of 1994, sections 19(6), 42(2)(e) and 42(2)(f)(iii)). These rights have been interpreted by the Supreme Court of Appeal in Malawi as offering specific protection to pre-trial detainees (See for example, Amon Zgambo v. Republic MSCA Criminal Appeal Application No 111 of 1998 (unreported); Aubrey Mbewe and Simoni Pondani v. Republic Misc Criminal Application No 11 of 1995 (unreported)) on the grounds that an “innocent citizen is born with his freedom and meant to stay with it” (Daniel Tanganyika v. Republic Misc Criminal Appeal Application No. 251 of 1994 (unreported per Nyirenda J)). The Constitution expressly provides for extra protection for pre-trial detainees in the form of due process rights such as the right to challenge the legality of his/her detention, to have access to legal counsel, to be informed of charges by a court within 48 hours, and to be released with or without bail (section 42(2)(b)). The current situation of pre-trial detainees in Malawi is in flagrant breach of all of these due process rights. When an individual is arrested for allegedly partaking in criminal activity, they are not informed of charges by a court within 48 hours, they have no access to the judicial process to challenge the legality of their detention, they are denied their liberty without just cause and their right to the presumption of innocence is infringed. These rights would normally be justiciable under the Constitution. However, the lack of a judicial body to hear such complaints ensures such claims go unheard and detainees have no recourse for the protection of their constitutional rights.
The Malawian Government is also in breach of both their regional and international human rights obligations. Under the African Charter on Human and Peoples Rights 1981, “every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal; (c) the right to defence, including the right to be defended by counsel of his choice; (d) the right to be tried within a reasonable time by an impartial court or tribunal.” To assist in the interpretation of this provision, the African Commission on Human and Peoples Rights adopted the Principlesand Guidelines on the Rights to a Fair Trial and Legal Assistance in Africa including the right to be brought promptly before a judicial officer and the right to take proceedings to before a judicial body. The case of Huri-Lawsv. Nigeria Comm. No. 225/98 (2000) illustrates that detaining a person for over one month before bringing them before a judicial officer is a violation of the Charter. The judicial strike in Malawi is now in its third month with pre-trial detainees potentially being detained without recourse to the courts for a large portion of this time. Recourse could be had by way of a complaint to the African Court on Human and Peoples' Rights which complements the protective mandate of the African Commission on Human and Peoples' Rights. The Court has the competence to take final and binding decisions on human rights violations. Article 34(6) of The Protocol Establishing the Court requires that for individuals and Non Governmental Organizations to have direct access to the Court, the State should make a declaration accepting the competence of the Court to receive applications from these entities under Article 5(3) of the Protocol. Malawi signed its declaration on African Union Day, 9 September 2008, and deposited it on 9 October 2008, opening a potential line of recourse for these detainees.
Further recourse could also be had, by way of complaint, to the Human Rights Committeeof the United Nations established under the International Covenant on Civil andPolitical Rights 1966. The ICCPR contains strong due process protections (Article 9), including the right of an individual to be brought “promptly” before a judge or another officer authorised with judicial power when they are first arrested and detained. The UN Human Rights Committee has commented that “delays must not exceed a few days”. Accordingly, the current situation in Malawi is causing infringements of Article 9. Article 9(4) of the ICCPR also provides that anyone “who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.” While there is a right in Malawi to challenge pre-trial detention, this right is not in the present circumstances effective, an issue that the UN Human Rights Committee has agreed can amount to a violation of Article 9(4) (Communication No. 84/1981, H. G. Dermit on behalf of G. I. and H. H. Dermit Barbato (Views adopted on 21 October 1982)). Additionally, Article 9(3) provides that everyone detained shall be entitled to a trial within “a reasonable time” or to release pending that trial. The foundation for this provision lies in the importance attached to the presumption of innocence and the protection of liberty. In relation to this provision, the UN Human Rights Committee in General CommentNo. 8 has concluded that “pre-trial detention should be an exception and as short as possible.” More importantly, the UN Human Rights Committee has held that a lack of “adequate budgetary appropriations for the administration of criminal justice ... does not justify unreasonable delays in the adjudication of criminal cases” (Communication No. 336/1988, N.Fillastre v. Bolivia (Views adopted on 5 November 1991), in UN doc. GAOR, A/47/40). Therefore, the failure of the Malawian State to bring individuals to trial efficiently is also in breach of their obligations under the ICCPR. The Human Rights Committee may consider individual communications relating to States parties to the First Optional Protocol to the International Covenant on Civil and Political Rights (including Malawi since 1996).
So what is the solution to the judicial strike in Malawi? Should the judiciary back down? Should the State give in to the judicial demands? Naturally, there is a inclination towards trying to solve the judicial strike as the most effective and obvious solution to the problem. However, in focusing on this issue, the more immediate and serious condition of pre-trial detainees is ignored. The State must accept responsibility for persons in pre-trial detention. It must accept that it has a duty to these individuals, that it cannot hide behind the judicial strike or its budgetary concerns, that it must take action to ameliorate the situation and that it must take this action immediately. It is in flagrant breach of its own constitutional principles and its regional and international human rights obligations. Some inspiration might be drawn from the Tokyo Rules which encourage the development of alternatives to pre-trial detention including “[U]ndertakings…not to interfere with the course of justice; not to engage in particular conduct, including that involved in a profession or particular employment; requirements to report on a daily or periodic basis to… the police or other authority;…requirements to submit to electronic monitoring; requirements to reside at a specified address, with or without conditions as to the hours to be spent there; requirements not to leave or enter specified places or districts without authorisation; requirements not to meet specified persons without authorisation; requirements to surrender passports or other identification papers; and requirements to provide or secure financial or other forms of guarantees as to conduct pending trial.” (derived and edited from Rule 2(1) of Recommendation Rec(2006)13: Rules on the use of remand in custody, the conditions in which it takes place and the provision of safeguards against abuse and adopted by the Council of Europe’s Committee of Ministers on 27 September 2006). Whatever the solution arrived at, it must be decided swiftly and implemented with immediate effect. Pre-trial detainees should no longer be used as the pawns in the stalemate between the Judiciary and the Government.
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