Breaking News: Bruno Kalemba New Malawian DPP

Mr Bruno Kalemba, The Chief Legal Aid Advocate or "The Chief" as he is affectionately known in the Legal Aid Department has just been made the new Director of Public Prosecutions by President Jyce Banda, replacing Rosemary Kanyuka in the position.

We at IRLI wish Mr Kalemba the best in his new post and hope to continue our access to justice work with him from the office of the D.P.P.

Ruth Dowling B.L

UN Guidelines on Access to Legal Aid

Due to an ever increasing workload in the aftermath of Judicial Strike we've been a bit quiet on the blog lately but Ruth Dowling is back today with an excellent article on the new UN Principles and Guidelines on Access to Legal Aid in the Criminal Justice System.

On 27th April 2012 the 21st session of the Commission for Crime Prevention and Criminal Justice (CCPCJ) adopted the resolution for the UN Principles and Guidelines on Access to Legal Aid in the Criminal Justice System  

This is ground breaking guideline as it is the first international instrument on legal aid. The document contains 14 principles recognising the “Right to Legal Aid” and how to ensure this right is available to Member State’s citizens.  There are 18 guidelines outlining how a functioning Legal Aid system should be implemented.

The notion of fair trial and access to justice is enshrined in international law through many different pieces of key legislation. Most notably in 1948 the Universal Declaration of Human Rights, outlined the key principles of equality before the law and the presumption of innocence, as well as the right to a fair and public hearing by an independent and impartial tribunal, established by law, along with all the guarantees necessary for the defence of anyone charged with a penal offence, other minimum guarantees and the entitlement to be tried without undue delay. In 1966 the International Covenant on Civil and Political Rights went further stating in Article 14 that everyone charged with a criminal offence shall be entitled to be tried in his or her presence and to defend him or herself in person or through legal assistance of his or her own choosing or assigned to him or her where the interests of justice so require, in a fair and public hearing by a competent, independent and impartial tribunal established by law.

The Lilongwe Declaration on accessing legal aid in Africa was a significant step regionally, recognising the difficulties many African nations have in meeting obligations in respect of legal aid provision. However the new guidelines provide very positive guidance for countries like Malawi. Malawi has drawn up a new Legal Aid Act which was published on the 8^th April 2011 but it has yet to be enforced. The new act looks at legal aid as a service provided to persons by way of legal representation, legal advice or legal assistance and allows for the appointment of Legal Aid Assistants which will increase the number of professionals offering legal services. It will establish a new fund to be known as the “Legal Aid Fund” which will receive money from Government and from donors and CSOs. The Legal Aid department in Malawi is in need of much financial help. Malawi spends approx €125,000 on legal aid for both civil and criminal matters annually. This is about €0.01 per capita on legal aid. This is compared to approx €315,500 on the DPP’s office alone. While the police prosecutor’s also have a separate budget for the prosecution of minor files. The DPP offices have prosecution lawyers to prosecute “heavy-weight” offences i.e murder, rape but it is the police prosecutors that prosecute 90% of cases.

The total number of employees in the Legal Aid Department as of November 2011 was 176 posts of which only 24 are for lawyers. Currently there are only 5 Legal Aid Advocates working in the Lilongwe Legal Aid office and not all of them are available for criminal matters. The Legal Aid Department offices are only situated in the three main cities - in Lilongwe, Blantyre and Mzuzu. The Legal Aid Department does not have representation in the remaining districts. The Mzuzu office usually operates with only one lawyer. Most people are living in rural areas and so transport to the cities to see a lawyer proves too costly.

As a result of this 90% of criminal cases will generally proceed without the accused person having and legal assistance or representation. At present there are 489 people awaiting trial in Maula prison in Lilongwe, 63 of those have been in prison since before 2010 having never been to Court (some since 2005). There are at least 6 people waiting longer than 12 months for judgment after their trial concluded. Unfortunately Legal Aid, despite it's best efforts, does not have the capacity to follow up these cases with the courts on a regular basis.

This new resolution invites Member States, consistent with their national legislation, to adopt and strengthen measures to ensure that effective legal aid is provided, in accordance with the spirit of the Principles and Guidelines. Legal aid is an essential element of a fair, humane and efficient criminal justice system that is based on the rule of law.

In line with the Lilongwe Declaration and the Lilongwe Plan of Action for the implementation of the Declaration, the new Principles and Guidelines follow a broad concept of legal aid.  The term “legal aid” includes legal advice, assistance and representation for persons detained, arrested or imprisoned, suspected or accused of, or charged with a criminal offence and  for victims and witnesses in the criminal justice process that is provided at no cost for those without sufficient means or when  the interests of justice so require. Furthermore, “legal aid” is intended to include the concepts of legal education, access to legal information and other services provided for persons through alternative dispute resolution mechanisms and restorative justice processes, all matters in which Irish Rule of Law has been exploring within Malawi since our arrival almost a year ago. 

A functioning legal aid system, as part of a functioning criminal justice system, will reduce the length of time suspects are held in police stations and detention centres, in addition to reducing the prison population, wrongful convictions, prison overcrowding and congestion in the courts, and reducing reoffending. It will also protect and safeguard the rights of victims and witnesses in the criminal justice process. Legal aid can be utilised to contribute to the prevention of crime by increasing awareness of the law.

Regrettably, many countries still lack the necessary resources and capacity to provide legal aid for suspects, those charged with a criminal offence, prisoners, victims and witnesses. The United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, which are drawn from international standards and recognised good practices, aim to provide guidance to States on the fundamental principles on which a legal aid system in criminal justice should be based.

With this new resolution it is hoped Legal Aid systems in pooer countries like Malawi will develop and help to ensure that no person is left sitting in prison for years without access to a lawyer.

It will now proceed to the Economic and Social Council in June and then to the UN General Assembly for final adoption in December of 2012.

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.