On Thursday 21st July 2011, an unprecedented study was launched in Lilongwe entitled –. The information contained in this report provides rigorously researched, empirical evidence which can be used to underpin future efforts by both government and civil society to influence legislation, policy and practice with a view to ensuring the appropriate use of pre-trial detention, promoting the speedy resolution of trials and improving prison conditions in line with the United Nations Standard Minimum Rules for the Treatment of Prisoners.
Executive summary and recommendations
Like elsewhere in Africa, the excessive and extended use of pre-trial detention in Malawi is symptomatic of failings in the criminal justice systems relating to the effective and efficient management of case flow. Excessive and extended pre-trial detention violates a number of rights, key among which are the right to liberty, dignity, a fair and speedy trial, and to be free from torture and other ill treatment. It is especially the poor and powerless who bear the brunt of excessive and extended pre-trial detention. But the impact of pre-trial detention, even for short periods, reaches well beyond the individual concerned, affecting families and communities.
In order to better understand the use of pre-trial detention in southern Africa and its impact on the rule of law, access to justice and adherence to human right standards, the Open Society Initiative for Southern Africa (OSISA) – in partnership with the Open Society Foundation for South Africa (OSF-SA) and the Open Society Foundations Global Criminal Justice Fund (GCJF) – commissioned an audit of a sample of police stations, prisons and courts in Malawi to gather information on both the legal status of awaiting trial detainees and issues pertaining to conditions of detention in prisons and police stations.
Following a review of the literature, data was collected from a number of police stations, prisons, subordinate courts and High Courts. This focused on quantitative data on case flow management and qualitative data on conditions of detention.
The institutions of the criminal justice system and their functions
Limited resources place constraints on all criminal justice institutions in a variety of ways. However, cost effective and sustainable solutions need to be sought to improve record keeping and monitoring of case flow. In respect of the police, it was found that excessive arrests, lack of knowledge of the law, lack of prosecution skills, poor coordination and lack of supervision by the Directorate of Public Prosecutions (DPP) contribute to delays in case flow management. Therefore, it is recommended that alternatives for arrest and detention must be better utilised, or established if lacking, and that officers should receive the necessary training to perform their duties in accordance with the Constitution and laws of Malawi.
The DPP lacks enabling legislation, a binding prosecution policy and a code of ethics for prosecutors. The DPP also lacks the capacity to effectively supervise police prosecutors. Therefore, it is recommended that appropriate legislation be enacted and that the Draft National Prosecution Policy be finalised and adopted. A key element for reform is the decentralisation of the DPP’s authority as outlined in the DPP Strategic Plan 2009-2014. The DPP needs to build on effective interventions, such as the Homicide Working Group.
The prison service is regulated by antiquated legislation (1955) and houses prisoners in even older buildings. The 2003 Prisons Bill, when enacted, will provide strategic direction to the service.
The judiciary has a key role to play in improving case flow management by exercising effective oversight when accused people are in detention for excessive periods. The subordinate courts need to be provided with the necessary resources to enable the effective handling of cases. Members of the judiciary also need to be trained to stay abreast of latest developments in law (e.g. amendments to the Criminal Procedure and Evidence Code, and the Child Justice Act). Access to legal aid remains extremely difficult but the Legal Aid Act (2011) provides hope that this will change. All efforts should be made to implement this legislation as soon as possible and enable cooperation between the Legal Aid Bureau and civil society organisations.
The legislative framework for pre-trial detention
The Constitution and recent case law provides a solid legal framework for regulating pre-trial detention, in particular the fair trial rights of accused people. The recent enactment of pre-trial detention time limits further strengthens these provisions. In view of this, it is recommended that officials (especially members of the judiciary) receive the necessary training to enable them to exercise firm judicial control over the criminal justice process and enforce custody time limits. All efforts should be made to improve coordination between functionaries – for example, through court users meetings and the Homicide Working Group.
Conditions of detention – police cells
While some good practices were identified, the overwhelming picture is that conditions of detention in police cells are poor, violate the rights of detainees in material ways and frequently exceed the 48-hour rule. The ageing state of many Malawian police stations and the insufficient capacity and nature of cell accommodation are the cause of many of the major concerns. Sufficient funds will remain a challenge for the foreseeable future, but this should not prevent an incremental process of reform and improvement. The Malawian Police Service should develop a time bound and monitored plan of action to incrementally improve conditions of detention, while police management should provide assertive and demonstrable leadership in relation to the human dignity of detainees and their right to physical and moral integrity – as well in relation to transparency and accountability, which are the cornerstones of a human rights-based detention system. The police training curriculum needs to be reviewed in relation to its focus on human rights standards and refresher training should be conducted on a regular basis.
Conditions of detention – prisons
As with police detention, some good practices were identified, but the overwhelming picture is that conditions of detention are poor and fall short of what is generally accepted as humane detention. An important development in Malawian case law is the Gable Masangano decision, which placed an obligation on the state to improve conditions of detention within 18 months; this deadline expired in May 2011. The government of Malawi is encouraged to improve the systems for monitoring conditions in prisons, while the prison service needs to seek and advocate for alternatives to excessive and prolonged pre-trial detention. The service should similarly aspire to increase self-sufficiency and seek more environmentally-friendly, low-cost and low-tech solutions to some of the practical challenges relating to conditions of detention. Meanwhile, a comprehensive cost analysis of improvements in the prison system should be undertaken in order to accurately inform the budget of the prison service. The costing should also be informed by the 2003 Prisons Bill and the Gable Masangano decision.
Case flow management data
The quality of record keeping, the accessibility of records and challenges in the data collection process placed significant limitations on the scope and veracity of the data collected in this part of the project. The overall aim was to gain an understanding of the time lapses between different stages in the criminal justice process and, in particular, to identify bottlenecks in the processing of cases. The research results indicated a great deal of variation among the various sites in Malawi, not only in terms of time periods but also in terms of the profile of the people in the remand population. This strongly suggests that trends in the Malawi criminal justice system are determined by local conditions. The available data also suggests that the custody time limits for the commencement of cases recently imposed by the Malawi legislature are probably not met for half the cases in some courts. Unless changes are made to the criminal justice process, and a mechanism for implementing these limits is treated, arbitrarily assigned limits will probably not be met considering the trends in the recent past. Cases can take an extremely long time to reach the High Court in Blantyre. The data collected in this project confirms that the delays are mostly prior to commencement of the trial in High Court.
The data suggests that 8,000 people, mainly young men, are admitted on remand to the six selected prisons every year – amounting to 1 out of every 250 men in Malawi. Since there are 23 prisons in Malawi, the actual yearly exposure of the population to prison on remand may be as high as 1 in 100. On this scale, the socio-economic impact of pre-trial detention at a societal level becomes significant. By far the most common offences are theft and burglary. Violent offences are a relatively small percentage, although they appear to be somewhat more prevalent in the north. However, of concern are small but significant categories such as illegal immigrants, ‘rogue and vagabond’ and touts. In some constitutional jurisdictions many of the offences leading to incarceration in Malawi would not be considered crimes at all. There is a need for an overhaul of the criminal code in the light of Malawi’s human rights obligations and to ease the burden of remand detention on the poor. The court outcomes suggest a significant proportion of cases end in acquittal or are otherwise discharged. This provides a strong indication that a person charged with a serious offence may not ultimately be found guilty in a court of law, after spending long periods of time on remand.
Incomplete records and lost files are the most problematic findings of this study. A person on remand, whose records or files have been lost, has little hope of getting out of the system unless he receives external help. A further consequence of poor record keeping is that it limits the extent to which any intervention aimed at improving caseflow management can be monitored and assessed to determine if it is having the desired effect.
Further research and reform is recommended to:
- Identify local factors affecting the speed and application of criminal justice;
- Streamline the process of referral to the High Court;
- Develop a consistent national system of record-keeping and archiving in all criminal justice institutions;
- Develop a mechanism, which will be implemented nationally, to trigger the release of people on remand when custody time limits are exceeded; and,
- Review offences in the Malawi Criminal Code with the view to decriminalising certain acts.