Over 1 000 in prison unlawfully

Over 1 000 prisoners are unlawfully being kept in the country’s prisons due to administrative challenges, both the Judiciary and Prison have confirmed the problem.

A Malawi Prison Service source who asked for anonymity said there are currently over 1 000 unconfirmed cases at Maula Prison in Lilongwe and Chichiri Prison in Blantyre.

He did not have the figure for Zomba Maximum Prison and other prisons in the country. But director for the Legal Aid Bureau Masauko Chamkakala corroborated these figures, saying the numbers for the whole country are much higher.

In an interview Chamkakala said what has to be done does not need any court action because the committal order is clear and self-disposed regarding release of convicts if the High Court has not confirmed their sentences.

“In the Criminal Justice Coordination Committee we have raised the issue of hastening the process of confirming such sentences because the numbers are quite large,” he said.

In a related development, Malawi Law Society (MLS) honorary secretary Martha Kaukonde observed in an interview that according to Section 16 of Criminal Procedure and Evidence Code (CPEC) convicts whose cases have not been confirmed by the High Court can also apply for bail pending confirmation.

Section 16 (1) of (CPEC) reads: “If a subordinate court imposes a sentence falling within Section 15(1)(c) or (d), the court imposing such a sentence may on the application of the person sentenced, release the person sentenced on bail pending the order of the High Court.”

Section 15 of CPEC states that when a subordinate court has meted out a fine or sentence exceeding two years by a resident magistrate or one year by a first or second grade magistrate the High Court should confirm such sentences.

A warrant of commitment which is a document that certifies a person to be put in prison quotes Section 239 of CPEC which reads in part: “Unless confirmation of the sentence shall sooner be communicated to you by the High Court, you are required to release the prisoner at the expiration of the period appropriated in the case of the sentence.”

This means that if, for example, a lower court has meted out a three- or four-year prison sentence on a convict, the High Court should confirm the sentence before the expiry of the first year in the case of a sentence by a second grade magistrate and before the end of the second year in the case of a sentence by a first grade magistrate. If this does not happen, the prisoner should be set free at the end of the appropriated years.

Our findings, however, show that despite the law being clear on granting freedom to prisoners whose sentences have not been confirmed by the High Court for over one or two years, over 1 000 such convicts are languishing in jail.

Both Judiciary and Malawi Prison Directorate which confirmed the existence of unconfirmed cases although they could not give figures, attributed the status quo to administrative challenges.

In an interview High Court of Malawi and Malawi Supreme Court of Appeal registrar Agnes Patemba explained that the High Court waits for the subordinate court to transfer files to it for the court to make confirmations.

Patemba added that in some instances, some files are omitted and are not sent to the High Court as required resulting in some cases not being confirmed as the law demands.

Said Patemba: “It may not be possible to state with certainty the number of pending cases considering that confirmation cases arise spontaneously as magistrates hear and conclude cases. It is only those files that are omitted and not sent to the High Court for confirmation that pose a challenge.”

Patemba also said the confirmations are done in sessions and that it is at that time that the High Court would know the actual number of pending cases.

But a civil society group Centre for Human Rights Education, Advice and Assistance (Chreaa) has described the situation as a clear violation of the law that needs to be addressed urgently.

Executive director for the organisation Victor Mhango said: “These are illegal sentences and some prisoners finish their sentences without the High Court confirming them. If the High Court fails to confirm a sentence [within the appropriated period], then the benefits should go to the prisoner.”

While admitting the challenges, Malawi Prisons Directorate spokesperson Chimwemwe Shawa said the directorate has now intensified camp courts to speed up justice delivery for convicts who do not deserve to be locked up in jail.

In 2018, the office of Legal Aid Bureau conducted a study on the unconfirmed sentences and found over 4 000 of such cases in the country’s prisons.

Records from the High Court show that during sessions which took place in April, August and December last year 3 412 cases were confirmed.

During a session in April this year, some 1 389 cases were also confirmed, according to the records. Another session is scheduled for August 2020.