Justice Chombo attended an IRLI training session for Magistrates in November 2012. Upon hearing our experiences in Maula, where we are working with men who have been awaiting trial for up to 7 years on remand and have never been to Court, she suggested we work together to address these problems.
A situation had arisen in Malawi’s courts where most of the homicide cases that are brought to Court are from 2011 and 2012. Cases from 2006 were being overlooked. The men who had been charged in 2005, 2006, 2007, 2008 and onward did not believe they would get to Court and had accepted their fate to remain in prison on remand. While the Legal Aid Department has a mandate to act for these people, the department is hugely over stretched and it only deals with cases sent forward by the DPP. These ‘long term remandees’ were the forgotten people stuck in an overcrowded criminal justice system.
IRLI lawyers since August 2011, together with Legal Aid, has brought many bail applications to the High Court for those “forgotten prisoners”. All applications were successful and work was done to locate sureties in order to secure the conditional release of these people. In some cases where a person had been waiting over 7 years and not once gone to court, the High Court granted bail and went as far as to say the State should prosecute the case within 6 months or the Court will consider them discharged.
It got to a point however where IRLI was bringing more bail applications for these old cases than there were trials being held to prosecute the cases. Due to the high volume of people on remand awaiting trial, Justice Chombo thought the best course of action would be to take the court to the prisoners and start work on this backlog.
The courts that are held in prison are known as camp courts. Camp courts are ad hoc courts held within the prisons to bring justice directly to pre-trial detainees. They run regularly as a initiative of PASI (Paralegal Advisory Service) for those who are charged with minor offences. A Magistrate and a prosecutor will attend the prison and conduct a court with PASI paralegals assisting those pre-trial detainees. It is unusual for a camp court to be held for homicide trials, but the exercise has been a success.
The EU Democratic Governance Programme, who funds alot of work within the Justice sector in Malawi, has agreed to fund the running of these courts so the back log of cases can be cleared.
As a result of these camp courts 20 cases were brought to Court and these 20 people have been released from pre-trial detention. Some were convicted, some acquitted and others dicharged for want of prosecution. In one case where the State failed to obtain a medical report, the Court decided that he should be discharged after being held in pre-trial detention since October 2006. In another case the prisoner was sentenced to 4 years,which was backdated. As he had been in custody for 5 years, he had served his time and was released immediately.
This is a big step forward in Malawi where the High Court is actively working to ensure access to justice for all those in pre-trial detention.
By Ruth Dowling, Programme Lawyer with the Malawi Project
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