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
