For the past 15 years, prisoners in the country have lived in inhumane conditions and in total violation of human rights and international law after government ignored calls to improve the situation.
Slightly over two weeks ago, the Malawi Inspectorate of Prisons released a report which bemoaned conditions prisoners are living in, saying they amounted to torture and degradation of human dignity. The new report particularly cites overcrowding and poor diet as main concerns.
A review of four reports from the Inspectorate of Prisons for the past 15 years (2004 to 2019), a court ruling in 2007 and interviews with relevant authorities, show a general lack of commitment to bail out prisoners from the degrading conditions they are living in.
Surprisingly, duty-bearers —ranging from ministries responsible for Justice and Constitutional Affairs, Homeland Security and the Judiciary—all seem helpless on how best to handle the situation which has reached a crisis level, according to the latest inspectorate report.
While prisoners languish and perish due to overcrowding, government has failed to comply with a Constitutional Court Order delivered in 2007, which directed the Malawi Prisons to decongest by half all prisons within 18 months.
The ruling followed an application from one concerned prisoner, Gebo Masangano, who had filed against the State on prison conditions.
“Accordingly, we direct the respondents to comply with this judgment within 18 months, by taking concrete steps in reducing prison overcrowding by half, thereafter periodically reducing the remainder to eliminate overcrowding and by improving the ventilation in our prisons and, further, by improving prison conditions generally,” read a ruling from a panel of three Judges—Justice Rezine Mzikamanda, Justice Richard Chinangwa and Justice Esmie Chombo.
The ruling came on top of the 2004 Inspectorate report which showed that the population of inmates had grown from 4 500 to over 9 000, leading to overcrowding.
But since then, conditions in prisons have worsened—12 years after the court ruling as confirmed in the latest report, which states that overcrowding in prisons is now at an alarming 260 percent.
Asked why they have not complied with the court ruling, Principal Secretary in the Ministry of Homeland Security Sam Madula blamed it on both funding and lack of authority to carry out the order. Madula said their plan to construct a maximum prison in Lilongwe has been frustrated with lack of funding since 2013.
He also blamed the Judiciary for contributing to overcrowding due to “tendency to send to prison even people who have committed petty offences”.
“The court ruling is quiet funny. They expected us to decongest prisons by half. How? We are at the receiving end. These people are sent there by the courts. Some stole chickens but they are sent to prison.
“Police dump suspects there so does the Immigration [Department] when they round up illegal immigrants. We have no power to release inmates but these authorities,” he said.
In one of the reports, ‘Using the courts to protect vulnerable people’, Malawi Inspectorate of Prisons chairperson judge Kenan Manda proposes review of sentencing guidelines to avoid a situation where every other offender is given prison sentence.
“In this regard, when it comes to sentencing most of the lower courts just consider the type of offence, that is, whether it is a felony or a misdemeanor. If the offence is a felony, the first and perhaps the only consideration a lower court would make is imposing a custodial sentence. It does not matter if the item stolen does not have that much value,” reads part of the judge’s submission which suggests reviewing of sentencing guidelines.
Asked to comment on what he makes of the situation where government does not seem committed to improving prison conditions based on inspectorate recommendations, Manda also attributed it to lack of funding.
On contempt of court on the Masangano ruling, Manda referred Nation on Sunday to the Registrar for the High Court, who asked for more time before responding to our questionnaire.
A director in the Malawi Human Rights Commission (MHRC) responsible for civil and political rights Harry Migochi said the ruling placed the responsibility of decongesting prisons on Malawi Prisons Service, which has no such authority.
A well-placed source with the Judiciary said the courts are also helpless to invoke contempt of court on the defied ruling because the situation is tricky: “The issue is even if you want to take the prison authority to task for contempt, what will be the benefit? The prison service cannot do anything on its own. It needs funding to build more structures. We also need to address the issue of sentencing to de-populate our prisons”.