Homicide Remandees meet the High Court

In an unprecendented move the High Court of Malawi in the country’s capital Lilongwe has moved into Maula prison to conduct homicide trials. Her Ladyship Justice Chombo together with Court staff, the Legal Aid Department and the Director of Public Prosecutions attended Maula on 5^th and 12^th December 2012 to start work on the backlog of homicide cases.

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

Magistrates Training – Access to Justice

As part of our ‘Access to Justice’ programme we recognised that there was a clear need to engage with Magistrates.  Magistrates are regarded as the primary gatekeepers of justice with their courts alone presiding over 90% of formal criminal cases in Malawi.  While Magistrates’ Courts can often dispose of cases expeditiously, the ability of such proceedings to adhere to fair trial standards has been limited at times.  This is attributed in part to resource constraints where Magistrates are not supplied with copies of the up to date laws of Malawi, not to mention regional and international instruments relating to human rights standards.

The Programme Lawyers, recognising the resource deficit, took the initiative to draft a ‘Human Rights Handbook’  tailored specifically for Magistrates.  The Handbook covers key areas such as human rights standards, the right to a fair trial, bail, sentencing, restorative justice and the special needs of children who come into conflict with the law.

The Handbook was launched at our first workshop in June, which was officially opened by His Lordship Mzikamanda.  In his foreward, His Lordship Mzikamanda recognised that our Handbook was:

the first step in a collaborative process between the Judiciary and Irish Rule of Law International of ensuring the rights guaranteed by the Constitution are adequately protected by courts.

His Lordship stated in his view that the purpose of the handbook is:

to familiarise Magistrates with existing national, regional and international legal protections regarding the right to liberty and security  of the person and to illustrate how the various legal guarantees, if enforced by Magistrates’ Courts in practice, will protect and safeguard the rights of persons arrested or detained.

All Magistrates within the Lilongwe Area have been provided with a copy of the Handbook.  To ensure proper use of the Handbook, and to explore further areas of interest highlighted by the Magistrates in June, we held a follow up workshop in November.  This coincided with a field visit by Mr Michael Irvine, Director of IRLI.  The workshop provided us with an opportunity to raise our profile and the work we are engaged in.  We were delighted to have opening remarks from a distinguished panel of speakers.  We were joined by Mr Anthony Kamanga SC, Solicitor General and Secretary for Justice, Ms Esme Chombo, President of the High Court and Ms Elizabeth Higgins, Ambassador of Ireland.

Mr Kamanga, SC stated that

access to justice is at the cornerstone of every society, Malawi included.  The justice sector is in the process of implementing a new 5 year Democratic Governance Strategy Plan.  The vision of the Democratic Governance Sector is to ensure a “Malawi that is truly democratic, just, safe, secure and prosperous, in which everyone enjoys their human rights and lives a life of dignity”.  This vision is shared by our colleagues at Irish Rule of Law International as witnessed by the program which they will deliver to you today.

This illustrates that our work is supported and endorsed by our partner the Ministry of Justice and Constitutional Affairs and we continue to enjoy a fruitful relationship.

Justice Chombo similarly applauded our efforts and commended our Handbook.  She urged the Magistrates to take

time to discuss and reflect on the many facets that will enable better ‘Access to Justice’…to take this workshop very seriously indeed and that the knowledge to be gained in this workshop should enable you to perform better upon return to your duty stations. 

Her Excellency Liz Higgins also commended the efforts being undertaken by IRLI and was keen to impress that our work was in line with the vision shared by the Embassy within Malawi.  Our work is complimentary to similar initiatives being undertaken by the Embassy in the justice sector to help improve democratic governance.

The first half of the workshop consisted of a series of presentations which focused on the Rules of Evidence, Right to a Fair Trial, Sentencing and the Special Protection of Children in Conflict with the Law.  After a break to reflect on the lessons learnt from the morning in the afternoon we held two ‘moot’ courts and divided into four separate groups so that we could put into practice what had been learnt.  For the moot court we were joined by our friends at the Malawi Police Services and the Malawi Social Welfare Services.

We concluded the workshop with a round table discussion from the various stakeholders around the challenges facing meaningful ‘Access to Justice’.  Whilst there were many challenges lack of resources (financial and personnel), capacity and co-ordination; there was unanimous agreement that one of the keys to unlocking the solution was increased communication amongst the stakeholders so that vulnerable persons within the criminal justice system have their human rights protected.

Eithne Lynch

Legal Literacy in Kachare Boys Reformatory Centre

Kachere Boys Reformatory Centre was originally built in the 1960s as a remand centre.  While over the past two years significant strides have been made in improving conditions at Kachere, sleeping and sanitary conditions remain sub-standard. Kachere was originally built with a capacity for 70 persons.  While writing this post today I am saddened to say that there are 202 boys being held at Kachere, 33 are awaiting trial (16 of who are answering charges of homicide) with the remainder serving sentences for a variety of offences from simple theft to robbery and homicide.

Ruth facilitating training

The vast majority of the boys held at Kachere have never had access to a lawyer to assist them in their criminal case. Recently we have begun to work more closely with the paralegals from the Paralegal Advisory Institute Services (‘PASI’) who visit Kachere regularly to assist on aspects of the boys’ legal defence. In the past PASI have held legal literacy programmes in Kachere to educate the boys about court procedures, what they can expect when standing before a court and the steps that they should take to improve their access to justice.  Last week we facilitated a ‘legal literacy programme’ with PASI.  The programme was delivered by Mr Alex Nkunika, paralegal with PASI.  Mr Nkunika has many years of experience in delivering programmes of this nature with vulnerable youths.  His interaction with the boys was excellent.  The use of theatre to demonstrate the importance of accuracy in everything they say before a Magistrate or Judge was a clever way of imparting this important message.  Mr Nkunika was able to assure the boys that in the absence of a lawyer it is within their abilities to tell their ‘stories’,  clearly demonstrate the importance of telling the truth and show the importance of this in accessing justice in their case.

As a result of this intervention it is hoped that more boys will be empowered to advocate for their own rights and find the voice to demand access to justice!

By Ruth Dowling BL

Generation Hope – A Poetry Anthology By Young Malawian Writers

A couple of weeks ago I stumbled across the Lilongwe Cultural Festival which provided an opportunity for artists, playwrights and poets to showcase their work to the public. It was at the festival that I came across a publication call ‘Generation Hope’. This publication serves as a platform to allow young Malawians voice their views on the current challenges and opportunities facing them.

There is one poem in particular that I wanted to share with the readers of our blog as it reasonates quite strongly with our project, ‘Access to Criminal Justice’. The poem is called ‘Decades to Come’ and was written by Boniface Wizilamu. Like the poet we believe that there is hope for Malawi that solutions can be found, obtacles overcome. What is required is patience, time and perseverence.

 DECADES TO COME

by Boniface Wizilamu

Dry your tears, Mother Malawi

weep not again

for your glory is about to retain

face your eyes to the east

and expect not a beast

but a peep of the sun

struggling to rise above the mountain

whose shadow has masked your beauty

to deny you a chance to sparkle

like a pistol, the brightest star

in the sky that twinkles

now a dwelling den, for crooks and con artists

worry not then, watch until it fully shines

and uncover the beauty that is truly fine

Question not this prophecy

a true vision it is, not a fallacy

that warm heart shall give birth to peace

that treasure hidden within,

shall unlock the ingress of prosperity.

Together we shall turn a new leaf

of oneness and friendliness

and the willingness to work as a team

even in times when the chances

of survival seem slim

that’s your destiny, Mother Malawi

mark my words, it’s just in a few

decades to come.

By Eithne Lynch

Ngala Mountain – The Mountain of the Smile

While our friends and family took on the Blackstairs Mountains at home, the programme lawyers decided to take on a challenge of our own – to summit Ngala Mountain. As many of you know Ngala holds a special place for us here in Malawi because it is this mountain that we scaled with some vulnerable children that we work with. Ngala represents a turning point in their lives as they are taken here by us when they successfully complete the 12 week behaviour change programme as part of their diversion conditions from police custody. For many of these children this will be the first time that they are treated to a weekend of fun as a reward for their hard work. In many cases their lives are dedicated simply to surviving. Depending on who you talk to Ngala, means the mountain of the ‘mouth’ or the ‘smile’ due to the large gash in the rock face at the front of the mountain. I like to think of it as the mountain of the smile, given the many fond memories we have of it.

That's me in the blue at the front struggling with the steep inclines!

We left Lilongwe early Saturday morning as we wanted to start the climb before the heat of the day really began to hit. We are now in the height of the summer and temperatures often rise to 35 degrees celcius by 9 in the morning. After being greeted by Chief Mkanga at his home and exchanging gifts we set off at 9:30 am to start the climb. We were escorted by the Chief and the Village Head Man on our hike together with a gaggle of excited children from the village who were fascinated by this bunch of ‘Muzungus’ (white people) who wanted to climb their mountain. Needless to say we Muzungus were put to shame by the energy of the children who ran up the steep slopes with not even shoes on!

Chief Mkanga’s son brought a battery radio with him and we all enjoyed the music as made our slow assent up Ngala. We reached the summit approximately 1 hour 30 minutes after starting and we greeted with breathtaking views of the surrounding country side. We were regaled with stories by Chief Mkanga of how his tribe fled high up into the mountain to escape the neighbouring Ngonis’ who wanted to claim their land many years ago. Fortunately now, we were assured by Chief Mkanga that they no longer face these problems but he is often called to mediate on disputes. I told him about the community based work we were doing and we exchanged ideas on top of Ngala. I also told him that our friends in Ireland were doing a hike to support our work in Malawi. Chief Mkanga assured me that my Irish friends would be most welcome to come to his village and climb Ngala!

Left to Right – Chief Mkanga, Jo Seth Smith, Suzanne Byrne, Lena Ryde Nord, Patrick Gerathy, Eithne Lynch, Mehallah Beckett and Village Group Head Leader.

After taking the obligatory photos to prove we actually made it we began our walk down the mountain, all a little more tired than when we set out but with huge grins and a sense of pride at our accomplishments! 

By Eithne Lynch, Programme Lawyer with the Malawi project

Ngala Mountain – Climb ‘in’ Malawi!

This coming Saturday while family, friends and supporters tackle the Blackstairs Mountains in Ireland to raise funds to support our work in Malawi, the IRLI lawyers will take on Ngala Mountain located on the outskirts of Lilongwe.

Ngala holds a special place for us here in Malawi because it is this mountain that we scaled with some of the vulnerable children that we work with.  This mountain represents a turning point in their lives as they are taken here by us when they successfully complete the 12 week behaviour change programme as part of their diversion conditions from police custody.  For many of these children this will be the first time that there are treated to a weekend of fun as a reward for their hard work.

Ngala is a tough climb with steep sheer slopes and will take us approximately 2 hours to summit.  We are being welcomed by Chief Mkanga and are excited to return to the mountain that holds many fond memories for us.

Best of luck with the climb in Ireland and we will be sure to let you know how we get on here in Malawi!!

Ruth and Eithne

Diversion Training – Kanengo Police Station

During our first year in Malawi we developed a training programme around the principles of diversion and restorative justice. Diversion can be defined as the channelling of prima facie cases away from the formal criminal justice system with or without conditions.  It places the victim firmly at the centre of the decision making process and by so doing seeks to restore harmony to the community within which the offence was committed.

It became apparent to us early on in the project that there were many offences of a minor nature which could be dealt with by police officers at the station level.  In our first year we concentrated on up-skilling officers from the Lilongwe Model Police Station, Area 3.  This led to a greater co-ordination amongst officers with regards the treatment of minor offences, which in turn freed up Magistrates’ time to deal with crimes of a more serious nature.

With the consent of the Commissioner of Police Central Region, Mr Nelson Bophani and Mr Happy Mkandawire, Officer in Charge Prosecutions and Legal Services, we have now expanded our training programme to other stations in the Lilongwe area.  We have collaborated with the Paralegal Advisory Services for this initiative.  In particular special mention and thanks must be given to Mr Alex Nkunika who was a key co-ordinator in putting the workshop together.

It is our intention to target stations whose statistics demonstrate a high incidence of crime.  The first police station we visited in October was the Kanengo Police Station.  The aim of the workshop was to develop a common understanding among all police officers of all the processes involved in diversion.

Workshop participants should now be able to:

• Understand the concept of restorative justice and specifically diversion

•  Implement a basic version of diversion in their police station, including a tracking and monitoring system

• Understand the relevant information that should be taken into account in assessing suitability of diversion

• Have increased their knowledge of new legislation

As part of the workshop we invited officers from the Lilongwe Model Police Station, Area 3 with whom we have been working with over the past year.  Mrs Fanny Chimbaya and Mr Yotamu Chaonaine (prosecuting officers from Area 3) shared their experiences with the participants about how they use diversion in their daily duties, the obstacles they faced initially and the successes they have witnessed.  Their ability to articulate so eloquently the use of diversion to their colleagues was a real pleasure to witness and a testament to their hard work over the past year to make diversion a reality.

We were delighted that Mr Mkandawire attended the entire workshop.  The presence of such a senior member from within the Malawi Police Services lends a high degree of credibility to the initiatives being undertaken by Irish Rule of Law International.  The support of Mr Mkandawire and the officers we work with from Area 3 Police Station will enable us to expand our programme and to increase access to justice within the criminal justice system.  We will keep you posted on our developments on the diversion programme.

Eithne Lynch, Programme Lawyer with the Malawi project