Stakeholders have proposed several changes in the review of the Prisons Act in a bid to improve conditions and reduce congestion in the country’s prisons where inmates are subjected to inhuman and degrading conditions.
The stakeholders made their recommendations in Blantyre on Tuesday during a Third Regional Consultative Workshop organised by the Special Law Commission on the Review of the Prisons Act to seek views and input. The process started in early 2013.
High Court judge Ken Manda, who is chairing the Special Law Commission on the Review of the Prisons Act, said the papers presented at the meeting were a product of thorough desk research and consultations.
He said his team considered several issues, including the law as it stands now, the law and practice in comparative jurisdiction and applicable international instruments.
Manda said in the past six decades, the Act has witnessed and cut across a number of fundamental changes in the socio-legal and constitutional framework within which it operates and following the changes, the national awakening process was heightened by the decision in the Gable Masangano (suing on behalf of all prisoners in Malawi) versus the Attorney General case, the Home Affairs and Internal Security and chief commissioner of prisons.
In the case, the court held that prison conditions in Malawi amounted to inhuman and degrading treatment of prisoners.
Said Manda: “It was against that background that the Malawi Prisons Service decided to conduct a review of the Act with the broad aim of aligning it with the dictates of the Constitution and applicable international law and principles on the administration, governance and management of prisons and prisoners.
“Further, the commission goes beyond the pronouncements in the Gable Masangano case to consider issues such as conditions of confinement in prisons that include the health of prisoners, overcrowding in prisons, rights and privileges of prisoners and rights of prisoners special needs, among others.”
In its contribution, the Centre for Human Rights Education, Advice and Assistance (Chreaa) urged the Special Law Commission to speed up the process of reviewing the Act and ensure that every contribution is taken into consideration.
“We are also hoping that the new Prisons Act will be in place soon. We have seen in the past where such processes being inconclusive. It requires the goodwill from all the players,” said Chreaa executive director Victor Mhango.
Over the years, accounts have been told of the country’s prison conditions, the tormenting overcrowded state in particular, but participants to Tuesday’s meeting agreed with resentment as presenters drew their attention to the present Act’s yawning gaps.
For instance, the Act, which has been in operation for almost 60 years having been enacted into law on April 23 1956 with a broad objective of providing for, among others, the establishment of prisons within Malawi, reveals that it does not incorporate the principles of rehabilitation, reformation and reintegration of offenders into society.
In her paper titled Scope and Principles of the Law on Prisons, commissioner Gertrude Hiwa observed that Section 91 of the Prisons Act makes provision for the infliction corporal punishment as a punishment for the commission of a prison offence while Section 106 provides for capital punishment.
Deputy commissioner of prisons (regional commanding officer for South), Little Mtengano, in his paper, noted that some documents that support the admission of prisoners to prison raise a lot of issues to do with validity.
He cited documents such as warrant of admission and temporary remand warrants issued by police that are not specific; hence, their potential for abuse, by, for example, leaving a person in prison for a period longer than the contemplated temporary remand.
On the rights of prisoners, Mtengano, in his paper titled Admission of Prisoners to Prisons, observed: “The Act does not guarantee in any way that prisoners shall be informed of their rights and obligations upon admission to prison.”
The Law Commission is engaging key stakeholders and the public in consultations and interaction before it starts drafting the bill to be submitted to the Minister of Justice and Constitutional Affairs for presentation in Parliament by next year, according to Manda. n