Enabling access to justice

In late September 2020, Vincent, 17, from Chembe Village, Traditional Authority (T/A) Kambwiri in Salima was arrested alongside an older person for burglary.

Whereas the adult appeared before court shortly after the arrest, Vincent could not.

This is because his social welfare report was not ready and a child cannot be brought to court without the report and a social welfare officer.

Consequently, he was held at Salima Police Station for over two weeks, flouting the 48-hour rule which provides that suspects should be brought to court within 48 hours of arrest.

Suspects in Salima are normally held at the police station following the lack of a district prison, but resources permitting, they are either transported to Maula in Lilongwe or Nkhotakota prisons.

But fortunately for Vincent, he walked to freedom after one of the case coordination activities at Salima Police Station, presided over by the district’s magistrate Felix Phaiya in early October.

He is among almost 78 936 individuals who were released from prisons, courts, juvenile centres and police stations under the Access to Justice through Village Mediation and Paralegal Services Project.

Cassim Monjesi from Blantyre, whose case is different from Vincent’s, has also benefited from the project which is being implemented by Paralegal Advisory Services Institute (Pasi) in coordination with the Judiciary, Malawi Prison Services and the Malawi Police Service.

When his chicken was stolen and the suspect was taken to Milare Police in T/A Somba’s area, village mediators took up the case and managed to resolve the matter amicably.

“Through the village mediators, the suspect admitted to the crime and agreed to pay me the amount at which the chicken could have been sold,” says Monjesi.

In Malawi, the formal justice system is not accessible to everyone; as such, village mediation is helping to resolve disputes at local and informal settings.

The village mediators can backstop cases at police to prevent them from entering an overloaded system; and the police also refer minor cases to village mediators through Pasi paralegals.

Over 35 707 cases have been resolved so far through village mediation since the project, which is bankrolled by the European Union and the United Nations Development Programme, started in 2018.

Through the project, Pasi is working in 22 traditional authorities in 11 districts, handling petty issues that can be dealt with by village mediators while paralegals are also working with prisoners in the courts, prison, and police.

Group village head Mkawa from Zomba underscores that not every offence deserves imprisonment.

The chief, therefore, hails the village mediators and paralegals for their efforts in minimising the number of cases at police stations and reducing the number of people in prisons. 

It is evident that the case coordination activities, along with camp courts and interventions such as village mediations, are indeed reducing the number of people in prisons. 

Phaiya says the interventions are helping them to fill the gaps in the delivery of justice and helping to speed up trials, a development which benefits the offenders while bringing justice for the wronged.

The project has not only improved the frequency of appearance of suspects before the courts, but prosecutors are now also complying with the 48-hour rule, thereby reducing over-crowding in the cells.

Malawi Prison Service commissioner responsible for farms and industry Clement Kainja agrees that, through the project, paralegals are mostly in villages conducting mediation and settling small disputes at community level, consequently reducing the number of people coming to prisons.

He says the paralegals are also providing legal clinics in prisons where they are training prisoners on their rights and at times, helping them to apply for bail.

At the courts, the paralegals are also helping to connect the courts, police, and prisoners.

“This coordination is quite important because, at times, the courts are alerted on how many prisoners have overstayed without being taken to court or without their cases taken to courts.

“The paralegals help to ensure speedy trials and ensure that prisoners who are not supposed to stay long in prisons are attended to by a criminal justice system,” says Kainja.

Pasi national programmes coordinator Chimwemwe Ndalahoma is impressed that the project is ensuring that detained people access the appropriate justice with speed.

He says: “There are a lot of people who are not supposed to be in the places of detention in the first place. The work of paralegals at that stage is to do proper screening to identify those who are being held in places of detention unlawfully.”

Ndalahoma says the first thing that paralegals do when handling cases is to find out if a person’s remand warrant has expired or not.

“If there are other things such as numerous adjournments, which work to the disadvantage of the accused person, they also investigate,” he says.

Ndalahoma believes that, by encouraging the magistrates to move to prisons and conduct camp courts, the project is addressing the immediate challenges being faced by the people that are in conflict with the law.