With no magistrate’s court functioning in the vicinity, officers at Senzani Police Unit in Ntcheu became prosecutors, judge, and jury by deciding on criminal cases that should have been taken to a court of law.
The development comes at the time some villagers in the district are walking over 90 kilometres to access justice with only about half of the 218 magistrates’ courts functioning in the country.
For example, in September this year, the unit arrested a suspected criminal, from Bamba Village in Traditional Authority (TA) Phambala on allegations of housebreaking and theft.
He was brought in by community policing team for breaking into a house and consequently stealing various items.
Two days after his arrest, police found him guilty of an offence and he was fined K180 000 to be paid within three months—from October to December—to the complainant.
Though at face value this may be perceived as one of the village mediation processes being encouraged in handling some petty cases, the matter involved was criminal in nature.
According to Section 311 of the Penal Code, the maximum sentence for housebreaking is 10 years imprisonment with hard labour.
The victim of the break-in, 31-year-old Ben Malekwa, claimed that a police officer told him that the case would not go in his favour if it was to be taken to a court of law because there was no proper evidence that the suspect committed the offence.
“The police verdict was to say the suspect will pay me K50 000 in the month of October and November, while in December he will finish the remaining K80 000,” said Malekwa.
However, in October and November, the suspect only managed to pay K50 000 instead of K100 000, a development that has angered Malekwa.
“The police should allow me to go to court because he is breaching the agreement brokered by the police,” said Malekwa.
National paralegal coordinator at Paralegal Advisory Service Institute (Pasi) Chimwemwe Ndalahoma said the case in question is a criminal and ought to have been handled by court.
“At times, this happens because the complainant has decided otherwise that the case should not be taken to court. In this case police works as mediators to resolve the case,” said Ndalahoma. “But we need to know that this is a criminal case, the complainant is still at liberty to go to court alone even without passing through the police.”
Pasi is running a project to make justice accessible to all people in Malawi through improving efficiency and effectiveness in the justice system and making it responsive to the needs of all users.
Ndalahoma admitted that people around Senzani and Phalula are denied access to justice because they do not have a magistrate.
But National Police public relations officer James Kadadzera said police have no powers to convict a suspect.
“We [police] are not judges to take up criminal cases. If a person feels someone has wronged him, he should go to police, and we will record particulars and prepare a file.
“After recording witnesses and taking up statements, when the file is ready, they go to court. It is up to court to find the suspect on the wrong side or not,” said Kadadzera.
Community policing chairperson, Thamuseni Kamfumu, said what the police officers are doing puts the community at risk because some of the suspects they are dealing with are habitual offenders.
“And this is a second time to arrest [the suspect]. Last time we arrested him on similar charges but he was released,” said Kamfumu who is overseeing 14 villages.
In the area, when a suspect is being arrested, the victim is requested to provide the transport for the suspect and two security people to take the suspect to police.
In the area, a passenger pays K8 000 to go to Senzani Police and if the case is taken to court, the amount goes up to K13 000 per person.
In the area of group village head Jumbe and Kanama, however, a person needs about K20 000 to travel to an area they can access the court.
Group Village head Kanama said people do not go to court because it costs the victim a lot.
“If my mind serves me well, of all cases happening here, only one case was taken to court [and] that’s in 2004,” said Kanama.
Kamfumu said many cases have not been taken to court in his area because of financial challenges.
“Last month, I arrested someone for impregnating a 17-year-old girl, but I just released him since her parents had no money to take the suspect to police,” he said.
But registrar of Malawi Supreme Court of Malawi and High Court, Agnes Patemba, said it is sad that people are walking long distances to access justice.
She said her office is working on a five-year plan project to construct and rehabilitate some courts so that they reduce the distance which people are walking to 10 kilometers.
According to Patemba, Malawi has 218 magistrate courts but only 142 are functional. Central region has 49 functional courts with 15 not working.
Eastern region has 44 with 29 functional, northern region has 50 with only 30 functional and southern has 60 with 34 functional.
Malawi Law Society (MLS) president Alfred Majamanda said his office is not aware about what is happening at Senzani Unit, adding that MLS is dismayed with the development he described as sad in the enforcement of the law in the country.
He said police are mandated to make an arrest and bring the suspect to court within 48 hours.
“If it is not practical to do so within that set period, the police can determine if it would be in the interest of justice to release the suspect on police bail,” he said.
Is the police contravening any section? Majamanda said Section 103 (2) of the Malawi Constitution gives powers to the Judiciary to have jurisdiction over all issues of judicial nature, while section 153 (1) mandates the police to safeguard public safety and rights of persons in the country; and (3) subjects the powers of the Police to directions of the courts.
“To that end, the police are not mandated to act as prosecutors and judges even where there are challenges with or temporary closure of the courts. They have powers to give free police bail or keep the suspects in custody until the courts are fully functioning. If there is an urgent matter, the courts are mandated to hear such matters as need be at the request of the police,” he said.