Many pre-trial detainees in Malawi will spend months or even years in detention – without being tried or found guilty. An audti of pre-trial detainees in Malawi, which was undertaken by the Open Society Initiative for Southern Africa (OSISA) in 2011, revealed a number of systemic procedural and structural problems in the criminal justice system that contribute to this situation.
In recent years, the Malawian government has introduced a number of reforms in relation to criminal justice procedures. For example, legislation was enacted in 2010, through amendments to Malawi’s Criminal Procedure and Evidence Code (CPEC), which specifies legal custody time limits for pre-trial detainees. However, many pre-trial detainees are still detained well beyond the legal time limits, partly because the CPEC does not explicitly stipulate any means of tracking custody time periods. Indeed, the OSISA audit found a number of key problems related to the implementation of custody time limits, including the:
The research upon which this new report - Pre-trial detention custody time limits: Ensuring compliance in Malawi - is based sought to identify proposals that would improve the implementation of custody time limits in Malawi. The project commenced with a literature review to understand the ways in which four other countries monitor detention length and enforce custody time limits. Material emanating from the literature review then formed the basis of a questionnaire, which was used in interviews with government officials and other key stakeholders. The findings from this process resulted in some concrete proposals, which were discussed at a validation seminar involving representatives from across the criminal justice system.
One of the key findings was the lack of buy-in from, or incentives for, officials to ensure adherence to custody time limits. The implication is that pressure must be brought to bear by the detainees themselves or by paralegals or lawyers, who are independent of the system. Another critical finding was that there is limited knowledge about, and no uniform interpretation of, Malawi’s criminal procedure as it relates to custody time limits.
The report also found that basic information procedures, which would enable officials to determine the length of time that detainees have spent in custody, are not yet uniformly in place across Malawi. The consultation process suggests that very simple changes to existing paper-based record keeping will go a long way towards ensuring better compliance – and help to prevent people from being detained for too long and having their basic rights violated. However, uniformity, the adequate provision of stationary, training and regular spot-checks will be needed to ensure that the new process is effective.
In addition, the research found that most officials have little reason to comply with custody time limits since it is magistrates who are empowered by the legislation to grant bail when time limits are exceeded. Thus pressure must be brought to bear by remandees and paralegals or lawyers working on their behalf to ensure that their cases are dealt with and that, where appropriate, bail is granted. In this regard, public awareness campaigns – using posters and pocket guides – as well as educating detainees about their rights and providing pro-forma bail applications will be extremely useful.
However, the state must also begin to take responsibility for the application of its own laws and the research supports the idea that this process should begin with the prosecution, commencing with those who fall under the Directorate of Public Prosecutions (DPP). Processes culminating in a policy applicable to all prosecutors should be supported since this would begin to change mind-sets. Incentives should also be considered to help to enforce such a policy or standard.
The research also found that there is support for the idea of Prison Heads regularly supplying lists of detainees on expired warrants to magistrates. These lists would be compiled using the proposed new record-keeping mechanisms and would bring custody time limit violations to light much earlier. For those held in police custody, there would have to be reliance on monitoring by independent groups, such as the various paralegal organisations. Indeed, the new Police Act (2010) provides for the establishment of a visitors’ scheme and, once up and running, this could be used to good effect in this regard.
The process to ensure adherence to custody time limits could be fine-tuned through Court User Committees (CUC), which are comprised of all criminal justice stakeholders and whose role it is to ensure coordination among these stakeholders, including paralegals, at each court. Ultimately, however, the process must involve a bail application or the court ‘moving itself’ (acting of its own accord) where violations are brought to its attention. The research concluded that paralegals and remandees would benefit from pro-forma instruction and guidance in this regard. The validation seminar at the end of the research process highlighted the need to develop a common understanding of criminal procedure, particularly around issues such as when a trial may be said to have commenced and at what point the prosecution is entitled to ask an accused person to plead.
Supported by the research and endorsed by the seminar participants in a plenary resolution, the process highlighted a number of proposals that would help to reduce the number of people in Malawi who are detained beyond legal limits, including the:
This report was written by Clifford Msiska, Jean Redpath and Victor Mhango, with contributions from Dziwani, Gama, Kamwenda, Malihera, Mdzole, Mtaula, Munika and Tembo of the Paralegal Advisory Services Institute (PASI), the Centre for Human Rights Education, Advice and Assistance (CHREAA), the Catholic Commission for Justice and Peace (CCJP) and the Centre for Human Rights and Rehabilitation (CHRR). The project was managed by PASI under Clifford Msiska. The authors and contributors would like to thank the interviewees and discussants for their time and insights.
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