Justice system rotten—report

The Malawi Prisons Inspectorate has faulted courts, prisons, police and lawyers for acting like criminal entities on their own by allegedly standing in the way of justice prisoners.

In a report whose findings were disseminated on Friday in Lilongwe, the Malawi Prisons Inspectorate Report 2019 said the way the criminal justice system is operated by the courts, police and lawyers is almost criminal.

Particularly, the report also singled out Malawi Police Service as worsening the situation.

Reads the report in part: “There are serious human rights breaches in the manner in which the criminal justice processes are being applied to prisoners.

“The way the system is being operated by the courts, police and legal practitioners is almost criminal and further exacerbates the vulnerable position of the prisoners.”

In an interview after presenting the report findings on Friday, chairperson for the Inspectorate, Kenan Manda, a judge of the High Court of Malawi, said there are many criminal activities perpetrated by the mentioned bodies requiring further investigations..

For instance, the Inspectorate found that prisoners complained a lot about the mentioned bodies, pointing to denial of justice. The inmates also alleged demands for bribes and that many officers disappear without assisting them after getting the bribes.

Manda said: “While an appeal and/or review of conviction and sentence are a matter of right as provided in Section 42(f)(viii) of the Constitution, the general complaint from the prisoners was that most court clerks are demanding a bribe for them to process their files for review or appeal.

“There were also cases where lawyers have disappeared [from]

the prisoners upon being given money to appeal but they do not actually appeal.”

On complaints against police, among others, the report notes that some suspects complained that they were dumped in prisons without being taken to court. The report adds that where there is a camp court to address the situation, accused persons are sometimes taken out of prison to court or a police station as a tactic to evade the camp court.

“There was also a general complaint from inmates that police fabricate evidence, especially for accused persons with previous records of conviction to ensure they get convictions.

“They also alleged that police kill suspects who are repeat offenders before they are taken to court. They also allege that there is rampant use of torture to extract confessions from suspects. Some suspects complained that there is an indirect application of Section 183(c) of the Penal Code on rogue and vagabond which was declared unconstitutional under the guise of idle and disorderly persons,” adds the report.

On sentencing, the Inspectorate observes that some of the sentences imposed by magistrates are illegal as they exceed the maximum sentence set out by law.

The Inspectorate has since recommended that all officers-in-charge, with guidance of legal section of the Malawi Prisons Service, should devise a system that ensures that all the paper work of prisoners is in place and also one that it is at least reviewed monthly to ensure adherence to the law as a matter of sorting out the criminal justice process.

The Inspectorate has also recommended the Malawi Human Rights Commission (MHRC), with the blessing of the Chief Justice, to undertake an inquiry into various human rights abuses within the criminal justice system.

In a separate interview yesterday, MHRC executive secretary David Nungu said they will follow up the findings of the report, saying they mirror the commission’s regular human rights monitoring in places of detention.

He said: “The Inspectorate must be commended. For now, the commission will follow up on these findings through thorough investigations of each case, where violations of rights of specific individuals obtain.

“In addition,  the commission has conceptualised an Access to Justice and Judicial Accountability Programme which aims to unearth all blockages in the justice sector, including issues of corruption, allocation and utilisation of resources to the sector and the conduct, the speed at which individual judges and magistrates handle cases before them, the conduct of lawyers, among others.”

Nungu said the audit will target the Judiciary, police, prisons and court users.

He said: “The commission shall invite the people of Malawi to share with it their experience with the justice system, including lodging individual or group complaints for probing.

“All cases that have suffered inordinate delays would be documented and published per judicial officer handling such. The commission would be announcing this programme soon and call for submissions.”

In his reaction, Parliamentary Legal Affairs Committee chairperson Kezzie Msukwa described the report as a wake-up call and promised that he will take it upon himself to make sure that when Parliament receives it, it gets the attention it deserves and ensure the prison service is transformed.

“It’s a moving report. We really need to do something about the report. You do not expect prisons to be the same as it was during colonial times. It is a pathetic situation.

“We will take it to Parliament and ensure there is proper follow-up with the concerned bodies. This is really bad. There is nothing good from the report,” he said.

The report has revealed recurrent general problems, including poor sanitation, poor diet, overcrowding and abuse of prisoners, poor ventilation, low staffing, and abuse of pre-trial custody time limit, inadequate uniforms and rehabilitation

Currently, Malawi’s prisons are said to have 15 000 (260 percent) occupancy against the official occupancy of 5 000.