An overview of pre- trial justice in Malawi

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1 An overview of pre- trial justice in Malawi By Justice Andrew Nyirenda SC, Judge of the Supreme Court of Appeal INTRODUCTION The criminal justice system in Malawi has a long history. Most of you may agree with me that there is no perfect criminal justice system worldwide. Our criminal justice system in Malawi is no exception. Although the remand population in our prisons has been significantly reduced, many challenges remain not only in regard to pre-trial detention but also regarding the overall effectiveness of the system. The 1994 Constitution established a new legal order requiring that every citizen should fully enjoy their God given freedoms and rights. The ideals set forth therein apply to the strongest as well as the weakest, the haves and the have nots. Nelson Mandela, whose 93 rd birthday was universally celebrated a few days ago said and I quote: "It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones." Thankfully our Constitution has a comprehensive bill of rights which covers the rights of those found on the wrong side of the law. However a lot needs to be done in order to realize the standards set down in the Constitution. The report to be launched at this meeting highlights the achievements made; the challenges faced and proposes the way forward. 1

2 Several laws regarding the criminal justice system have been enacted in the last two years. These include the amendment to the Penal Code which now includes several new offences. The Criminal Procedure and Evidence Code was comprehensively amended in It is by far the most comprehensive reform to the conduct of criminal proceedings since The amendments include the procedure during arrest of suspects and introduction of pretrial custody time limits. The Child Care, Justice and Protection Act, now provides comprehensive legal regime dealing with child offenders. The amended Police Act creates the Independent Police Complaints Commission as well as the Lay Visitors Scheme to ensure that persons held in police custody are treated with dignity. The Local Courts Act seeks to establish local courts to try minor criminal offences and thereby reduce the pressure experienced by magistrate courts and the High Court. The Legal Aid Act creates the Legal Aid Bureau which has been delinked from the Ministry of Justice as an autonomous Government body with more extensive scope of provision of legal aid. Despite these achievements some challenges still remain. These include lack of access to legal aid, poor record keeping, inadequate human and material resources, etc. What is true though is that we cannot rely on lack of these factors as an excuse to violate rights of those who are in prisons or other places of detention. For purposes of this address I have opted to highlight the issue of legal aid and how it relates to access to justice and ultimately pre-trial detention. 2

3 The rule of law is central to the democratic process of government by which people choose to be governed. In the words of the former Secretary General of the United Nations, Mr. Kofi Annan, the rule of law is not a luxury and justice is not a side issue. The rule of law refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency. 1 A balance needs to be struck between order, security and safety on the one hand, and equality, accountability, fairness and the avoidance of arbitrariness on the other. No one claims this is easy or simple. I contend, however, that the provision of legal aid plays a significant role in providing some of the checks and balances of abuse of power and authority and protecting the rights of the accused that would bring us closer to the UN s definition of justice as an ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs. Most places of custody in Malawi hold a significant proportion of people who pose no threat to anyone. Unfortunately, both in police cells and prisons, conditions of detention 1 Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies S/2004/616) 3

4 are poor and fall short of what is generally accepted as humane detention. Prisoners are there because they are poor and illiterate and unable to access the justice system, rather than serious offenders from whom society needs to be protected. The other problem is that governments and the legal establishment have viewed legal aid restrictively, as a service provided by lawyers. Such a view has, unfortunately, affected the way legal aid has been provided in Malawi compounding the problem of pre-trial detention. Realising this, in 2004 we invited leading practitioners from all over the continent to discuss what sort of legal services our people were in need of. The conference resulted in the Lilongwe Declaration on Accessing Legal Aid in the Criminal Justice System in Africa (2004) 2 which broadened legal aid to include a range of primary justice services such as: legal advice, assistance, representation, education and mechanisms for alternative dispute resolution; and to expand the range of legal aid providers beyond lawyers to include: non-governmental organisations, community-based organisations, religious and non-religious charitable organisations, professional bodies and associations, and academic institutions. A Plan of Action was also drawn to help governments and practitioners with the implementation of the Declaration. We felt pretty pleased with ourselves for such an achievement especially when the African Commission on Human Peoples Rights and then Economic and Social Council adopted the Declaration. 2 Adopted by the ACHPR and UN Economic and Soclal Council (2007/24) 4

5 Last year, with support from the United Nations Democracy Fund and in association with United Nations Office on Drugs and Crimes, Paralegal Advisory Service Institute conducted a survey of legal aid in Africa. The findings are remarkable. For instance, of the constitutions reviewed in all the countries on the continent only three provide an unequivocal right to legal aid at public expense; they are Egypt, Ethiopia and Mozambique. The others were rather vague. Thirteen provide a right to legal aid but fail to mention on whom the burden falls to provide it. Twenty mention a right to a defence but are silent as to whether the right extends to the provision of legal aid. Legal aid remains lawyer-centred even though the survey showed us that lawyers are remarkably few in number in most countries in Africa (save for perhaps Botswana, Egypt, Ghana, Kenya, Nigeria and South Africa); and even there they that they are found in the national and regional capitals, while most people continue to live in rural areas (notwithstanding increased movements of people towards the towns and cities). Because they are small in number, not surprisingly they are beyond the means of most people. In the eyes of many ordinary citizens, providing funding for the defense of "criminals" is a waste of scarce public resources. 3 Consequently very little resources are allocated for provision of legal aid services. Certainly, not sufficient to attract the services of most lawyers. 3 Access to Justice in Africa and Beyond. NITA Johann Kriegler p26 5

6 Let me be clear: I am not being dismissive of the role of lawyers. Lawyers are highly trained specialists needed for matters which are serious and/or complex. Most of the matters for which people need legal advice and assistance are neither serious nor complex. Our courts and prisons are congested with matters and people who could be dealt with in other ways. These people are simply in need of primary justice services and an array of front-line services which can be supplied by trained legal service providers, who need not be lawyers (they may be law students or paralegals). These providers can deal with most of the cases and refer only the serious and complex to the lawyer. This will have two immediate benefits: first, it will provide prompt and affordable services to poor people; and second, it will release time and resources for the justice system to pay for, manage and process the serious and complex cases fairly and efficiently. The national laws and regional frameworks respect a right to legal aid, the reality is that access to legal aid is not available at all stages of the criminal justice process and that as a matter of fact it is particularly rare at police stations; and only sometimes available in prisons and in the lower courts. In the absence of a mechanism to push cases through the criminal justice system, the justice process is delayed, causing case backlogs to grow, remand populations in prison to swell and prisons to become overcrowded. 4 Thus far, the legal aid situation in Malawi stands as follows: 4 The causes of prison overcrowding are complex and well captured in a diagnostic of the causes of prison overcrowding by Federica Dell Amico for Penal Reform International see: overcrowding- poster- en- fr_1.pdf 6

7 coverage by the state legal aid system is incomplete at best; access to legal aid at all stages of the criminal justice system is generally unavailable; budgetary allocation for legal aid is minimal; persons accused of crime cannot expect legal advice at all times in mounting a defence or informing a plea to a serious charge; or representation in cases attracting a prison sentence; lawyers are few in number and generally unavailable in rural areas; paralegals, or trained non-lawyers, are not provided in most districts in a systematic manner; community legal services are not available in every district or accessible by every person in need of such services; information on legal aid is not available to the general population; there is lack of over-arching legal aid strategy to maximise the use of the resources available. The African Commission on Human and Peoples Rights Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa emphasis the right to a lawyer at all stages (N.2.c) of the criminal justice process including when first detained or 7

8 charged. (N.2.d). The Lilongwe Declaration however goes further and proposes a range of legal services in the community, at police, court and in prisons. In the absence of effective legal aid provision, the societal benefits described in the Lilongwe Declaration such as: elimination of unnecessary detention, speedy processing of cases, fair and impartial trials, and the reduction of prison populations 5 can hardly be achieved. 5 Lilongwe 2 8

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