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