Judicial injustices

Some prisoners are serving illegal sentences imposed on them by magistrates who exceed the maximum sentences set out by the law, a Prisons Inspectorate Report alleges.

The report issued in September 2019 following an inspection of prison and police cells also blames the injustice on the tendency by some magistrates of not sending records of their case proceedings to the High Court for review and confirmation as required by law.

The report observed that some magistrates give punishments that exceed maximum limits as set out by law while other human rights breaches in the criminal justice system are contributing to overpopulation in prisons, currently at 260 percent of the official capacity.

The Inspectorate report further noted that the way criminal justice system was being operated by the courts as well as police and lawyers was almost “criminal on its own” and further exacerbates the vulnerable position of the prisoners.

The report coincided with the release of another report by High Court judge Dorothy Kamanga which exposes how some magistrates “unwillingly” fail to transmit records of their sentences that qualify for reviews by the High Court.

Justice Kamanga noted in her report that as of 2016, there were about 5 095 cases of prisoners serving sentences which were supposed to be reviewed first by the High Court but had not because records of their proceedings had not been sent to the High Court. This, she observed, was violating the provisions in Section 42 of the Constitution and Section 15 of the Penal Code.

Then, there were about 14 000 prisoners serving different sentences. While current statistics of cases for review were not readily available, as of last year, there were about 14 700 inmates in the country’s 31 prison stations against an official occupancy of about 5 000, according to Inspectorate report.

Section 42 (viii) of the Constitution gives 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 emphasizes the importance of confirming or reviewing of sentences by the High Court.

The section states that any sentence exceeding two years in the case of a resident magistrate court, one year in a case of first or second grade magistrate court or six months for third and fourth grade magistrate court, the courts shall immediately send the records of the proceedings to the High Court for review.

According to the Inspectorate’s report, some sentences by resident magistrates were irregular as they surpassed the sentencing jurisdictional limit of the magistrates.

“For instance, in one case, a convict was sentenced in one trial to an aggregate of 30 years imprisonment with hard labour for theft by a resident magistrate court whose sentencing limit is 21 years,” reads the report.

In another case, according to the report, a convict was sent to serve jail time at Ntcheu Prison with a remand warrant but the convict finished serving the default term. But after the sentence, he could not be released as he was still considered to be on remand.

Reports of illegal sentences and failure to send case proceedings to the High Court for review which are contributing to congestion in prisons, have prompted the Malawi Human Rights Commission (MHRC) to institute an audit on the matters while human and prisoners’ rights campaigners are calling on judiciary authorities to reprimand the architects of the injustices.

Under Section 17(3)(a) of the Criminal Procedure and Evidence Code (CP & EC), the aggregate term of any imprisonment imposed by a resident magistrate cannot exceed 21 years.

Chairperson for the Inspectorate, Kenan Manda, a High Court of Malawi judge, said there were a lot of issues within the criminal justice system requiring further investigations by relevant institutions.

He said, for instance, while review of convictions and sentences were a matter of right as provided in Section 42 of the Constitution, his team found out that lower courts were failing to process case proceedings for review.

During its checks, the Inspectorate found that two prisoners at Thyolo Prison were given sentences that exceeded their aggregated maximum limits thus contravening the CP & EC.

One inmate was sentenced to nine months imprisonment with hard labour for the offence of conduct likely to cause breach of peace and yet the maximum sentence for the offence is a fine of K3 000 and imprisonment for three months.

At the same prison, another convict was discovered to be serving a sentence of three years for the offence of escaping from unlawful custody instead of the magistrates giving him a statutory maximum sentence of two years.

While describing the development as “violation of prisoners’ rights”, MHRC executive secretary David Nungu said in an interview the commission had resolved to institute an audit into access to justice which would also deal with the issue of illegal imprisonments. The audit will also target the police, prisons and court users.

He said: “The idea is to establish all bottlenecks blocking the road to justice including the issue of irregular sentences by magistrates. We already called for submissions and the closure was yesterday [Tuesday this week].

“We are now going into analysis of the submissions then we will begin the inquiries based on the submissions and this will be the first task by the newly-appointed commissioners,” said Nungu.

MHRC conceptualised an Access to Justice and Judicial Accountability Programme which aims to unearth all blockages in the justice sector, including issues of corruption, conduct of lawyers, utilisation of resources and speed at which individual judges and magistrates handle cases, among others.

Prisoners’ rights activist Victor Mhango, who is also executive director of Centre for Human Rights Education, Advice and Assistance (Chreaa), said his organisation had been encountering “several cases of improper imprisonments”.

“The concerned magistrates need to be disciplined. If it is a matter of lack of knowledge let the judiciary take them back to school.

“But otherwise we believe that some of these magistrates are deliberately doing that because the law is very clear on their mandates and erroneously imprisoning convicts is a gross violation of human rights and we hope judiciary will reprimand them,” said Mhango.

He argued that review of sentences provides poor and vulnerable offenders an opportunity to access justice as they are usually unrepresented and may not commence an appeal on their own.

Chief Justice Andrew Nyirenda in 2015 told The Nation during the judges’ annual sherry party held in Blantyre that delays in confirming and reviewing sentences was contributing to the congestion in prisons.

“It is quite a huge exercise because the numbers are overwhelming,” he said.