- Over 5 000 cases yet to be reviewed
- Some magistrates sit on court records
The Malawi justice system is perpetrating injustice among court users and has been blamed for increased congestion in prisons as the Judiciary is failing to review thousands of sentences meted out by lower courts, a report by a High Court judge has revealed.
The report, by judge Dorothy Kamanga, has exposed how “deliberate unwillingness by some magistrates to transmit court records” and “knowledge gaps in procedure and practice”, among other factors, have trapped over 5 000 prisoners in a web of injustice as their sentences, which qualify for reviews by upper courts, were still pending in review trays as of March this year.
The review process, a fundamental human right provided for in the country’s Constitution, allows the High Court to verify that a convicted offender was subjected to a fair trial by a subordinate court by re-examining entire court records of their case.
But justice Kamanga’s report—which was presented during the launch of a legal book titled Using the Courts to Protect Vulnerable People—noted that the High Court was yet to review 5 095 cases of prisoners that were serving sentences, thereby violating the provisions on Section 42 of the Constitution and Section 15 of the Penal Code on sentence reviews.
Section 42 (viii) of the Constitution gives Malawian offenders freedom to have recourse to their sentences “by way of appeal or review to a higher court than the court of first instance.”
Section 15 of the Penal Code under Criminal Procedure and Evidence Code also emphasises on sentence confirmation or review by the High Court. It states:
“Any sentence exceeding two years in the case of resident magistrate court, and one year in a case of first or second magistrate or six months in the of third and fourth magistrate it shall immediately send the records of the proceedings to the High Court for the High Court to exercise powers of review.”
But according to Kamanga, of the 14 000 prisoners that were serving sentences in 20 prisons in the country as of March, 5 095 sentences had not been reviewed.
Of the 5 095 sentences, 907 were in the Southern Region, (18 percent); 1 788 in the Eastern Region (35 percent); 1 997 in the Central Region (39 percent) and 403 in the Northern Region ( eight percent).
Kamanga argued that review of sentences provides access to justice for poor and vulnerable offenders who are usually unrepresented and may not initiate an appeal. She also observed that the review procedure confirms the appropriateness of punishment and develops sentencing consistency for like cases.
Observed Kamanga: “It is a viable strategy for controlling the prison population through early releases. Short prison terms reduce the prison population and prison cell space is efficiently utilised by accommodating more offenders of shorter sentences.
“The courts can uphold prisoners’ right to review and potentially regulate prisoner population if the process of review is conducted promptly.
“Speedy disposal will help to achieve quality service provided to users of the judicial system and effectiveness and efficiency of the judicial system’s administration.”
Kamanga also noted that the most serious problem in the prisons is that while prison populations continue to grow, the prison structures have remained static—a situation amounting to “inhuman and degrading treatment of the inmates”.
“It makes it difficult to attain reformation and social rehabilitation as the objective of imprisonment,” she argued.
Prisoners’ rights activist Victor Mhango, who is also Centre for Human Rights Education, Advice and Assistance (Chreaa) executive director, said prisoners whose convictions have not been reviewed are serving illegal sentences.
Said Mhango in an interview this week: “Section 15 of Criminal Procedure and Evidence Code gives powers of freedom to any prisoner who is serving an illegal sentence because their cases were not reviewed.
“The majority of these [prisoners] are poor or uneducated people. This gives an impression that access to justice favours the rich. There is lack of awareness of legal processes and lawyers in Malawi are expensive and urban-based,” he said.
Chief commissioner of Malawi Prison Services (MPS) Kennedy Nkhoma said prisons are congested because government has not built new prisons despite the country’s increasing population, and further suggested that Malawi should consider introducing a parole system so that some of the prisoners would be released, but remain under the supervision of prison authorities.
“Malawi prisons were designed to punish people, but this was supposed to change. Prisons are supposed to be reforming people, but we cannot support reform programmes because of lack of resources.
“Most of the prisoners are poor people and uneducated; even if we punish them, we are not helping them. They will still come back after serving their sentences, but if we teach them skills, at least we will give them a trade to fall back on when they return to society,” he said.
Nkhoma, who said MPS operates under a shoestring budget as it gets about 31 percent of its annual required funding, concurred with Mhango, that Malawi prisons are full of poor people “as the rich people do not stay long in prison and their cases are most of times not concluded”.
He, however, said there is nothing prisons can do as they just receive convicts from courts.
“It is up to the courts to follow the law and release people whose sentences are deemed harsh,” he said.
Chief Justice Andrew Nyirenda on Friday admitted that delays in confirming and reviewing sentences would be saliently contributing to the congestion in prisons, but said the Judiciary has now engaged 10 qualified intern lawyers to help in reviewing the sentences.
“We have started with Blantyre [and] we will be going to other court centres; in few months, we can be talking about ‘reviews have been done’.
“It is quite a huge exercise because the numbers are overwhelming,” he said on the sidelines of judges’ annual sherry party held at the High Court in Blantyre.
The Chief Justice, however, disagreed with assertions that the court favours the rich and that most prisoners are poor and uneducated, saying as long as the matter is brought to court, magistrates and judges will deal with matters professionally.
Said Nyirenda: “I agree that in a society like Malawi, where a lot of people are illiterate or indeed not quite conversant with the goings-on of the courts, it is a challenge and sometimes they [the poor and uneducated] come and go unnoticed.
“I agree, it is the responsibility of the court to make sure that that section of the society is attended to and are noticed and that in the process of adjudication, courts are able to come to terms with their requirements and there we need to allow them to present their matter without fear.
According to Kamanga’s report, about 12 071 cases were registered before the courts for disposal of confirmation between 2010 and 2014 and 6 554 were disposed of while 5 507 were pending, representing 54 percent.
Kamanga’s report also highlighted administrative challenges facing the Judiciary such as transportation and security of files, insufficient number of judges and resource shortages.
The Judiciary is on record as having said that the country, which currently has 22 High Court judges, needs more judges; and requires about K8 billion annually to effectively operate, but was only allocated about K4 billion in the 2014/15 financial year.