Maravi post : 3 Irish lawyers join Legal Aid

Another Malawian paper had an article on our project today. The Maravi Post had an article entitled "Three Irish Lawyers join Lehal Aid to unclog Justice System"

UN Human Rights Commitee will examine Malawi today

The United Nations Human Rights Committee will meet for its 103rd session today. The Human Rights Committee is the body of independent experts that monitors implementation of the International Covenant on Civil and Political Rights by its State parties. All States parties are obliged to submit regular reports to the Committee on how the rights are being implemented. States must report initially one year after acceding to the Covenant and then whenever the Committee requests (usually every four years). The Committee examines each report and addresses its concerns and recommendations to the State party in the form of "concluding observations”. The Government of Malawi has not submitted a written report on its human rights record in respect of its obligation to implement the provisions of the ICCPR. Despite the lack of a report the Committee will review its record with a government delegation traveling from Malawi headed by the Attorney General.  The International Covenant on Civil and Political Rights (ICCPR) is an international treaty that outlines a set of fundamental rights guaranteed to all individuals regardless of race, color, sex, language, religion, opinion, nation, property, birth or other status. The ICCPR was adopted by the United Nations General Assembly in 1966 and entered into force in 1976. So far, 166 states, including the Government of Malawi, are parties to the Covenant. The Human Rights Committee is responsible for monitoring the implementation of the treaty by States Parties. Additionally, the 18-member committee also has the authority to interpret the treaty through issuing general comments.

In the absence of a state report, the Committee will consider information submitted by non-governmental organizations including the Centre of Development of People (CEDEP), the Centre of Human Rights and Rehabilitation (CHRR) and the International Gay and Lesbian Human Rights Commission (IGLHRC).

Read the full text of NGO Shadow Report on the Implementation of the International Covenant on Civil and Political Rights (ICCPR)

The shadow report highlights what is says are human rights violations which have been committed by the State of Malawi. Some areas it has highlighted include:

• On 20th and 21st July 2011, the Malawi security forces killed eighteen unarmed individuals who were attempting to exercise their right to peacefully assemble in opposition to the government.
• There have been complaints of torture in numerous police stations across Malawi. While NGOs and lawyers periodically access and monitor detention facilities, they are powerless to influence the treatment of the individuals incarcerated.
• The President’s Administration attempts to distract attention from its failure to respect the rule of law by blaming vulnerable groups, including LGBT people.
• There is a sustained attack on press freedom in Malawi. During the 19th and 20th of July 2011 demonstrations, a total of twenty-two journalists were beaten and assaulted by the Malawi Police Service.

In addition the shadow report offers eighteen recommendations for actions that should be taken to bring the State of Malawi in compliance with its treaty obligations. Those recommendations include the right to peaceful assembly, the right to fair trial, the right to free speech, the need to decriminalize homosexuality, the need for equal rights between men and women, and the need to conduct immediate and impartial investigations into the July 2011 attacks on civilians and journalist.  

For more information about the work of the Human Rights Committee, read the Civil and Political Rights: The Human Rights Committee fact sheet. 

Kachere prison visit

I recently visited Kachere Juvenile Prison for young male offenders. Kachere is a small prison located in Lilongwe City Centre and serves the central region of Malawi. The prison was built in the 1930s. Today Kachere holds approximately 130 prisoners. The prison is incredibly small and visibly overcrowded. A recent report by the Open Society Initiative for Southern Africa stated that Kachere is at 200% capacity.

Fortunately, there is a willingness to change and I met with two organisations at the prison who are working with the prison officers and government to help improve prison conditions.

·       I met with a representative from Venture Trust a Scottish charity that is working in Kachere Juvenile Prison in Malawi to help young men reduce their reoffending rates, and broaden the range of education and employment opportunities available.

·       I also met volunteers from Music Crossroads who were teaching prisoners to play the guitar and keyboard. Music Cross roads are an an international nongovernmental organisation (INGO) that employ local facilitators and teachers using African music, theatre and traditional dance to build young people’s self-confidence.

Earlier this year the Open Society Initiative for Southern Africa conducted an audit on pre-trial detention and case flow management in Malawi. The audit identified that on average, 6,333 juvenile remandees enter Kachere prison each year.

Of the 130 juvenile prisoners at Kachere prison many are pre-trial detainees. This means that they have not yet been tried for the crime for which they have been accused. The United Nations Rules for the Protection of Juveniles Deprived of their Liberty (UNJDLs) set out detailed provision for the detention of children. In addition to the general provisions, the UNJDLs state the following in respect of pre-trial detainees:

“17. Juveniles who are detained under arrest or awaiting trial (“untried”) are presumed innocent and shall be treated as such. Detention before trial shall be avoided to the extent possible and limited to exceptional circumstances. Therefore, all efforts shall be made to apply alternative measures. When preventive detention is nevertheless used, juvenile courts and investigative bodies shall give the highest priority to the most expeditious processing of such cases to ensure the shortest possible duration of detention. Untried detainees should be separated from convicted juveniles.”

The Child Care Protection and Justice Act 2010 was enacted in July 2010. However, it will not be operative until such time as the public reformatory centres referred to under section 157 of the Act have been established. In an already over stretched criminal justice system the establishment of these centres is likely to take some time. That said, the Act does indicate a willingness take a new approach to dealing with young offenders. The Fifth Schedule of the Act sets out diversion options available to magistrates whereby a young offender may be diverted away from prison. Therefore, while it may still be some time away this legislation represents a move away from a culture of imprisonment

An interesting article featured in the Huffington Post a few years ago for the I Live Here project on Kachere

Camp Courts

This week the project lawyers attended a Camp Court in prison.   These prison courts only handle matters involving minor offenders.  The courts are supposed to act as a useful way to reduce overcrowding, speed up justice delivery, and restore the ‘hope’ factor in the life of prisoners.  

As a background to the camp courts, the prisons in Malawi lack the transport (or the petrol) to bring the prisoners to the court; or the courts lack the space to hold the prisoners at court in cells. Accordingly, paralegals invite the magistrates to establish ‘camp courts’ inside the prison. The Paralegals draw up lists of those on remand that have overstayed, are held unlawfully or have been granted bail but cannot afford the terms set by the court. They discuss the lists in advance with the prosecuting authorities. Magistrates attend court with the court clerk, police prosecutor and work through the list: they grant bail to some, reduce the amount set by an earlier court by way of bond or surety for bail and dismiss cases where the accused has overstayed, or set a date when the accused must appear for trial. The camp court is not a trial court, since the public cannot attend and witnesses are not produced. The chief benefit of this mechanism is that prisoners see the law in action. Magistrates see inside the prisons and are able to do something practical to alleviate the situation. As a consequence, tensions in prison are reduced and the lower judiciary becomes more thoughtful about the utility of alternatives to prison in appropriate cases.  Prison staff also comes to recognise that facilitating access to justice is part of their roles.

On the day there were about 14 cases listed for hearing, however unlike cases normally listed for hearing these matters were for bail applications, variations or to actually list matters before a magistrate.  In many of the cases remandees were being held on expired warrants and had already been granted bail but were unable to meet the sureties set out by the magistrate they had been brought before in arrest. While a small amount is usually set for the personal bond, somewhere around 1,000-2,000MK the status quo appears to be, even for very minor offences, that at least one if not two independent sureties will be expected. This poses a number of difficult issues for the remandee. 1. Many have no way of contacting their family, while  organisations such as PASI, CELA and the CCJP make efforts to find family members this is not always easy and is definitely not done in a uniform manner. 2. Many of the families do not have the amount of money that is required by the court for the surety. In many cases it is 10,000- 20,000MK which could be 6 months/1 year of a families earnings. 

Therefore you have a situation where remandees are effectively denied bail due to the levels that they are being set at. PASI currently have a programme running where they are monitoring this matter to see how many remandees are effectively denied bail due to this type of bond being set. I’m somewhat of the opinion after visiting the camp court that if the defendants had legal representation a mplea could be made in respect of finances and cases could be put before the court which set out the High Courts position on denying bail in such a way. However at present the remandees have no legal representation at the courts….watch this space..

Cork Independent Article on IRLM project

The Cork Independent ran a profile on one of our Programme Lawyers a few weeks agoand it contains a good summation of our project

You can find it and a dashing photo of Sonya in her wig here

Legal Aid Act 2010

The Legal Aid Act 2010, which was the 7^th Act to be passed by President Bingu Mutharika in 2011, is still yet to come into operation as the minister has yet to publish a notice of such in the Gazette as is required by section 1 of the Act. However I think given its potential significance it is important to discuss the various aspects of the Act, which may relate to our work here in Lilongwe.

Current Position

Currently the Legal Aid Department (it will be called the Legal Aid Bureau under the new Act) has enabling legislation, the Legal Aid Act Cap 4:01 of the Laws of Malawi which is an Act

“to make provisions for the granting of legal aid to poor persons and matters connected therewith and incidental thereto”

The current Legal Aid Act was enacted in 1964 to provide for Legal aid to poor persons for free and at a contribution to those whose levels of income allow such contribution. Prior to 1964, Legal representation of poor persons was done under the poor Prisoners Defence Ordinance of 1945. The Ordinance was confined to criminal matters in the High Court specifically to cases of murder, manslaughter and defilement and given the budgetary shortages even today these are still cases which take priority in the office now. The LAD is a department in the Ministry of Justice and Constitutional Affairs whose objective to provide free legal services in all types of cases to the poor people of Malawi, hence, accord the people quality access to justice. The Departments core functions are performed by legal Aid Advocates, paralegals and law clerks.

The department currently has offices in Lilongwe, Blantyre and also Mzuzu. There is no LAD representation at district and sub–district level due to budgetary constraints and the absence of a pool of dedicated lawyers and there is an obvious need to decentralise the service in order to make it more accessible to all potential users. The authority to grant of Legal Aid is vested in the Chief Legal Aid Advocate, the Deputy Chief Legal Aid Advocate or the Assistant Chief Legal Aid Advocate. The Department is headed by the Chief Legal Aid Advocate (commonly known as the Chief), with responsibility over granting and refusal of legal aid services in all matters, general management, administration and financial management of department resources. The Chief reports directly to the Solicitor General and the Secretary for Justice in the Ministry of Justice and Constitutional Affairs. Any complaint or statement recorded is accompanied by a Legal Aid Application form duly completed and signed by the applicant. All the details on the forms are completed by the applicant if he is able to write. If he is unable to write the officer from the Department assists the client to complete the form. The Act is modelled on the English Legal Aid and Advice Act of 1949, and provides for a three tier approach to the granting of Legal Aid. Sections 4 to 6 of the Act address legal aid in criminal matters and considerations for assessment of eligibility.

A specific section I have found very interesting is the Third Schedule to the Legal Aid Regulations which establishes the fees payable to private Legal practitioners. The maximum fee that a private practitioner may be paid for a criminal case under this schedule remains at MK42, which is about 20 cent. You can imagine that private practitioners are lining up outside our doors trying to represent indigent accused on a daily basis. On the other hand and again unsurprisingly when it comes to Legal Aid in any jurisdiction, there is no limit to the amount of fees that a private practitioner may be paid for civil matters.

Basically to sum up the Legal Aid Department (LAD) is currently understaffed, has a high turnover of Advocates, and is in need of additional funding. Although funding has been significantly increased in recent years, the LAD receives only about 1.5 US cents per capita whereas the UK per capita expenditures reach $60 (Assessment of Legal Aid in the Criminal Justice System in Mlawi, Professor McQuiod (University of Kwa Zulu Natal 2006)P35.)

Legal Aid Act 2010

The new Act establishes a Legal Aid Bureau which will provide Legal aid consisting of legal advice and assistance, legal representation and public legal education. The Act makes provisions for the Legal Aid Bureau to liaise and cooperate with civil society organizations and any other persons or bodies engaged or interested in the provision of legal aid. It also proposes to create a “legal aid fund” in which the government and its partners will pool resources out of which the Department of Legal Aid will fund its activities and outsourcing to other service providers and it also includes a mention of various other sources of funding which shall include contingency fees, costs awarded by the courts to legally aided persons, deductions from the awards by the court and contributions made by legally aided persons. The Act provides that the Legal Aid Bureau should be adequately funded by the state to ensure independence. The bureau is required to establish regional and district legal aid centres for all four regions and 28 Districts.

The Act addresses the structure of legal aid service and establishes an independent State Institution, headed by a “Director”. The Act also narrowed the authorities to grant legal aid to ensure that legal aid is not granted without regard to available resources (given this provision I wonder how the planned legal aid centres for all four regions and 28 Districts will manage to fund themselves). The role of courts is confined to making recommendations to the Director in appropriate cases. Consequently, courts do not have power to order contributions. recommended for repeal. Whilst, the courts may make recommendations as regards the grant of legal aid, the Director has the exclusive power to address and deal with this issue. The Bill requires the Director to give reasons to the court that made the recommendations, as well as the Registrar of the High Court when the Director is unable to provide legal aid. Any aggrieved person is afforded the right of appeal against the decision of the Director not to grant legal aid. This approach is intended to ensure that the Director who has knowledge of the availability of legal aid resources and of all commitments of the Bureau, shall have the final decision whether or not to grant legal.

Another departure from the Current Act relates to the assessment of means of the applicant who is applying for legal aid. Whilst under the current regime the only means examined are those of the applicant for legal aid, the new Act proposes that the Bureau should take into account evidence of income and assets of the applicant and their spouse, and guardian in cases where the applicant is below the age of twenty one years. The Act establishes the criteria of “interests of justice”, “means” of the individual requiring legal aid and a base of “merit”.  I think this provision is quite openly hypocritical given that "child offenders" in Malawi are now defined as  only those under 16 years old age and not 18 as recommended by the UNCRC but yet this Act recognises that those under the age of 21 may be still be under the support of family members.  

The providers of legal aid also include Legal Aid Assistants whose minimum requirements shall be prescribed by the Council of Legal Education, however minimum requirement for Legal Aid Advocates is not set out and so one would assume that a LAA need just be qualified from University in order to practice in the LAB.

Following modern trends in other jurisdictions, the Act recommends that legal aid should extend to education and awareness raising, in conjunction with legal advice and assistance which may also include alternative dispute resolution. Most of the recommendations of the Lilongwe Declaration on accessing legal aid in the Criminal Justice Systems of Africa and its Plan of Action have been included in Act, however, some of the recommendations have not been included. For example the Lilongwe Declaration's suggestion that incentives such as tax exemptions should be offered to lawyers in rural areas has not been included which is unfortunately given the difficulties that the LAD has currently in getting lawyers to staff even the Mzuzu office.

Currently lawyers are few in numbers (less than 250 lawyers are currently in private practice serving a population of approximately 15 Million) generally unavailable in rural areas, and law students are used with limitation. However our partners at the University of Westminster Centre for Capital Punishment Studies have recently set up a programme in the Blantyre LAD office which has been very successful over the last 4/5 months in training students to take bail statements in the prison and they are hoping to integrate this programme into the students clinical legal education within their college.  In addition while Malawi has a very progressive Constitution and Bill of Rights access to Legal Aid is not available at all stages of the criminal justice process. It is particularly rare at police stations and only sometimes available in prisons or the lower courts. Access to Legal aid “at all stages“, is generally unavailable. Our project is currently undertaking research into the viability of using paralegals or legal assistants to represent defendants in the 3^rd Grade Magistrates Courts as while they can currently draft papers and do much of the pre-trial work they do not have a right of audience before the courts and given than only about 10% of defendants are currently represented this would appear to be counter productive.

Diversion Training for Prosecutors and Magistrates

The Catholic Commission forJustice and Peace, an excellent Civil Society organization that we have partnered with since coming to Lilongwe have been running another training session on diversion this week over two days, this time with police officers and magistrates who will be, unarguably, the most important players in assuring the success of this innovative pilot project.  As I have previously mentioned Magistrates are the lower court judges in the legal system. There are a number of different level Magistrates and they are lay people, sometimes with little to no legal training before they take up their posts. They have a wide range of powers and unlike District Court Judges in Ireland do not have a limited sentencing power and the higher level magistares can sentence for all offences apart from Rape, Murder and Treason. Unfortunately only 5/6 magistrates attended the training session with the majority attending being police prosecutors or investigators although those present were quite vocal during the session.

Mr Pacharo Kayira, of the Directorate of Public Prosecutions and our informal mentor, set out the legal basis for the diversion project from the laws of Malawi to the group in the first session in a lecture on the Prosecution Guidelines for diversion. Mr Kayira completed his masters in International Human Rights law in Lund University Sweden in 2006 and wrote his masters thesis on the topic of “The Right to Fair Trial: Malawi’s Quest to Meet International Standards”.  He was a key author of a number of chapters of the August 2011 OSISA report “Pre-trial detention in Malawi: Understanding case flow management and conditions of incarceration”. He is also a key member of staff of the Directorate of Public Prosecutions and so has been an invaluable asset to our project in its early stages as a human rights advocate and a public prosecutor.

He stated that the legal basis for diversion was found in a number of Malawian provisions. Section 13 of the Constitution mentions amicable resolution of disputes, in addition section 161 of the Criminal Procedure and Evidence Code also promotes reconciliation.  Finally the Child Justice Act has comprehensive provisions on diversion but only in respect of child offenders under 17. However it must be noted that this new diversion project is separate from the Child Justice provisions and will not be utilized in conjunction with it. Finally he highlighted that the new Local Courts Act (2010) has sections on the settlement of issues outside of the formal justice system.  He then went on to discuss the primary purposes of diversion, which he set out as rehabilitation and reparation, and the secondary purposes of the project, that is that the offender does not gain a criminal record, which will effect his future, educational, so that the offender looks to the reasons that they committed the offence and finally (and most importantly for our project) it will lesson the caseload of the formal Criminal Justice System which is currently swamped with small offences.

The criteria for diversion was set out as follows:

1.     Diversion must be in the best interests of the public

2.     It must be in the best interest of the Criminal Justice System

3.     It must take into account the views of the victim

4.   The offence must not be serious (examples included theft of a chicken, a sugar cane or corn maize or a minor assault)

5.     Offender must accept full responsibility for their actions and agree to the terms of the diversion

He then went on to discuss the 6 stages of diversion which he noted could be adopted at the pre-trial stage (which I would argue is the only real diversion from the formal justice system) where an offender could be cautioned and released, at the pre-sentence stage where the trial has commenced but before sentence and finally at the post sentence stage where it becomes almost a part of the sentence itself. The 6 stages were set out as follows:

1.     Commission of the Offence

2.     Evaluation and consideration for diversion (prosecution driven but could informally be pushed by the paralegals who have also been trained in this project)

3.     First Court appearance and adjournment for diversion

4.     Diversion interview and agreement (where no agreement prosecution continues)

5.     Monitoring compliance

6.     Completion of diversion

·      Compliance report reviewed

·      Offender is released without charge or

·      Prosecution proceeds where offender non compliant

The next section discussed the aggravating and mitigating factors, which should be considered when looking at diversion. Most of these would be similar to those you would use in a plea in mitigation or that the prosecution would put to the court on sentencing although two noted differences in sentencing here are that the court is reluctant to take into account health issues unless they are exceptional and medically certified (very rare, especially if someone has spent a period of time in prison awaiting sentence) and family responsibility, unless there is proof of exceptional hardship as the court notes that every family will suffer from hardship if the main wage earner or carer is imprisoned and that the offender should have considered this before committing the crime.  Finally it was noted that the conditions of the diversion agreement should be proportional, achievable and appropriate and that the offender can be referred for other restorative justice programmes such as counseling or community service (although how a low level offender would afford to pay for these is unclear).

I don’t think it would be fair to promote this project, although innovative, without speaking about a number of areas in which it could potentially fail to be effective. I would make a brief comment on stage 4 of the process, which I believe may be the blocking point for the diversion project. The Diversion interview must be presided over by a diversion officer who must be trained in diversion, if the police station has no police officer trained then it is my understanding that the process will stall at that point unless the offender can be brought to another station where an officer is trained. However this will be more costly and will necessitate the police officer in the first station to have faith in a process they may have never heard of before.  In addition for stage 6 to be completed a compliance report must be written and reviewed, this again needs a diversion officer to be very proactive and it may be more work intensive that just prosecuting a case in the formal fashion and I think that work will need to be done on the attitudes of police officers towards offenders before this will be preferential to them than regular prosecution. Finally I would foresee that if there isn’t proper monitoring of compliance then an offender could be stuck in the system for a longer period of time than it would have taken to go through the formal system if they are ever properly diverted at all. 

Particularly progressive aspects of the program include permission for the offender to have a support person of their choice present for the stage 4 interview, a mention that financial difficulties should be taken into account as a mitigating factor (quite a controversial aspect), discussions are on a without prejudice basis, if the offender admits other offences they must be passed to another officer and they must be read their rights and cautioned. Whether these important safeguards are adhered to remains to be seen but will be critical to the success of the project.