Building vibrant and tolerant democracies
Malawi is ahead of some of its neighbours, such as South Africa and Zimbabwe, in having laws that limit the time a person can be held on remand awaiting trial - but often practice and policy are far apart.
A study carried out between 2009-2011 by the Open Society Initiative for Southern Africa (OSISA) and a consortiumnot being released even though their trial has not started and the legal custody time limit has been exceeded.nfirmed what paralegals see in their work every day – people who are awaiting trial
The psychological, physical and socio-economic impact on people and their families of being indefinitely held in detention awaiting trial can be severe. Recognising this, parliament amended the Criminal Procedure and Evidence Code in 2010 to ensure that people are released on bail after a certain time if the state is not ready to prosecute.
In 2012, the same consortium - with support from OSISA and the European Union - conducted a further study to find out what other countries do to ensure adherence to custody time limits, and also how things currently work in practice in Malawi.
The study found that there is a need for greater public awareness so that people on remand themselves know about the law and request release. There also need to be ways of easily identifying how long people have been in custody, including simple steps such as recording dates in prison and court files and registers in a systematic and uniform way. Many courts do not have standard printed case folders or registers and these have to be drawn up manually.
The study also found that not all judicial and prison officials have access to the amended law so the report recommends that pocket guides summarising and explaining the law should be distributed to all officials. Other recommendations include the development of standard bail application for people on remand, whose custody time limits have been exceeded, the creation of more sessions for bail applications through Court User Committees, and the development of a prosecutorial policy with targets and incentives.
The research findings were validated at a national seminar on pre-trial custody time limits in Lilongwe from August 8-9th. Participants at the seminar included representatives from the judiciary, the prison service and the prosecutions services as well as from civil society.
The participants called on government to consider the proposals in the research for inclusion in the government's programme of work in the coming year.