Positive Media for Malawi

For the first time since our project has been based in Malawi the country is getting some much needed positive international media. This week the Economist has run an article entitled " Rejoice, it's Joyce" and the Guardian ran an article entitled "Malawi's Joyce Banda puts women's rights at centre of new presidency".

I particularly liked the following comment from JB in the Guardian article

"Africa is changing... I hope you know that we are doing better than most countries. America is still struggling to put a woman in the White House but we have two, so we're doing fine. This is what people did not expect us to achieve but we have."

“Mwai Wosinthika”- An alternative to custody for young people

Irish Rule of Law International (Malawi) and Venture Trust held a stakeholder meeting yesterday for the launch of a new pilot initiative they are starting called “Mwai Wosinthika”-  An alternative to custody for young people. This is an extension of a project currently being undertaken in Kachere Juvenile Reformatory centre by Venture Trust and the Diversion programme being implemented by IRLI in order to try and "divert" young people aawy from the criminal justice system through behavioural change.

The project is targeting any vulnerable young person at risk of or currently in conflict with families, school authorities, traditional authorities or the Police and courts.  Those due to appear before the courts could be referred instead by Police or Social Welfare or the Courts themselves to Venture Trust Malawi and other government agencies.   The  proposed pilot project has the potential to offer a direct alternative to custody for young offenders who have “exhausted” existing options and require an intensive level of support and supervision within the community via probation services.  (Referral criteria such as number of offences, severity and the level of risk posed to themselves and others).

“Mwai Wosinthika” aims to give young people the chance or opportunity to change in both their circumstances but perhaps more importantly and more empowering by giving the responsibility and therefore a choice about wanting to make a change in their behaviour and therefore how they deal with life’s problems.    One major consequence of which it is hoped will be the reduction in numbers of young people that are placed in custody so that they can continue to learn in school or become productive members of their community and Malawian Society.

The potential participants will be asked the following key questions:

1.     Are you ready and committed to change?

2.     If you are ready then Venture Trust along with partner agencies can help support you in that change process.

3.     School and education is highly encouraged as part of the process of change.

4.     It will involve hard work and attending a programme which you must commit to until completion.

5.     There is no money involved.  Do you understand that Venture Trust offer support and guidance as well as a model of thinking that will last for life.

The project emphasises that behaviour change has to start with a willingness on the part of the participant to take responsibility for his or her actions. There are a number of stages to the pilot programme. 

Stage 1: The young person will receive an one-to-one” baseline” initial interview from a Venture Trust trained development worker, probation officer or social worker to assess suitability for the project

Following the assessment and the young persons own self-assessment of their “level of commitment” to change a decision will be made to take them on. 

Stage 2: The young person will agree to attend a programme over 12 weeks in which will emphasise the main areas ofSelf-confidence; education & employability; behaviour and attitude and finally reducing the risk of re-offending. 

Stage 3: Dependant on their progress which is benchmarked by use of Venture Trust’s own monitoring & evaluation system the young person may be invited to attend a adventure weekend away from the  sometimes negative distractions of the city. 

Stage 4: Upon completion of the programme the young person will receive a certificate of their achievement and be supported to prepare their own action plan (“dongo solo”) which focuses on working towards a life objective by setting goals for the following year.  

(In an event of a young person been ordered by the Court to undertake the programme and not completing this will be communicated to the court by means of the appointed probation officer.)

Who are we?

Irish Rule of Law International is a joint initiative of the Law Society of Ireland and the Bar Council of Ireland, dedicated to promoting the rule of law in developing countries.  IRLI seeks to harness the skills of Irish lawyers in using the law as a means of tackling global injustice and empowering all people to live in a society free from inequality, corruption and conflict.

Venture Trust is a Scottish based charity that has grown significantly over  the last ten years as its approach of working with vulnerable young people (often whom others will not work with or who are excluded from school or life’s opportunities) offers an welcome alternative to custody for Magistrates, courts and police services that are already stretched due to budget and capacity. In 2011 Venture Trust was invited by the Malawi Government under the sponsorship of the Scottish Government as part of the Scotland-Malawi Partnership Agreement to work initially with vulnerable young people in Kachere Prison (now Kachere Reformatory Centre).   

CCJP Follow up Diversion Training

Above is a photo of participants to the follow up training for magistrates and Police Officers by the Catholic Commission for Justice and peace held on the 19th and 20th of April. The training comprised of interactive workshops on the Diversion project and a number of lectures on Diversion, the Criminal Prosecution and Evidence Code, the rights of juveniles and the accused and an interesting and very relevant discussion on expired remand warrants. Speakers included his Lordship Mr justice Twea, Mateyu Sisya from the Malawian Law Society and speakers from both the Legal Aid Department and the Ministry of Justice

Joyce Banda New President of Malawi

A very easy (and constitutional) transition to a new President and a new political party in Malawi over the last week. The Guardian have a good review of Joyce Banda here

The mood of the country seems uplifted and there is great hope for the future. Let's hope JB lives up to her reputation!

A review from Reuters on Bingus final years  here

Malawi Judicial Strike and International Law Protections

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.

(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 23^rd 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 29^th 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.

International Bar Association Calls for Release of Kasambara

The International Bar Association’s Human Rights Institute (IBAHRI) calls for the immediate release on bail of Malawian lawyer Ralph Kasambara – former Attorney-General of Malawi and former Commissioner of the Malawi Human Rights Commission. Mr Kasambara has been held in arbitrary detention since 13 February, despite two court orders commanding his release on bail.

Following his arrest last week, Mr Kasambara was granted bail by a magistrate’s court but rearrested several hours later and detained in Zomba maximum security prison. A High Court Judge heard a judicial review application of his case and granted a further order to ensure his immediate release on 17 February. Reports indicate that Mr Kasambara was denied release following ‘specific instructions’ to keep him in detention. Last night Mr Kasambara was moved to a hospital after his health seriously deteriorated due to a lack of access to medication while in detention. He remains under heavy police surveillance at Mwaiwathu hospital.

Sternford Moyo, IBAHRI Co-Chair said: 

‘It is worrying to hear of the arrest and then rearrest of Ralph Kasambara, in clear violation of court orders.’

He added:  

‘The IBAHRI has received indications that other lawyers in Malawi have recently been the target of threats and petrol bomb attacks. This is an extremely worrying trend and represents signs of erosion of the rule of law in the country, as the independence of lawyers and respect for court decisions are threatened.’