Reducing prison congestion with informal courts

In the past, village head Makolosa of Traditional Authority Kapeni in Blantyre would not hesitate to send criminal cases to Lunzu and Blantyre police stations. Most of the suspects ended up in prison.

His village, located a few kilometres from Kameza Roundabout along Chileka Road in Blantyre, he says, has many cases of robbery, theft of farm produce and land disputes.

Makolosa says he registered such cases in 2010, 2011 and 2012 and all the suspects ended up in police cells.

“Police is like our last resort in dealing with criminals, but the problem is that the trend creates enmity between people in the village. There are many people who thought I was harsh when I reported their relations to police,” says the village head.

Indeed, with congestions in police remand cells and prisons, some quarters believe petty crimes should be presided over by traditional leaders in their communities.

High Court acting registrar Mike Tembo said in an interview early this year that the country’s laws are too fixed, adding that most of the law provisions in use were adopted many years ago and some of them are irrelevant now.

“Some cases may sound minor today because of the time we are living in. However, our laws still view them as serious cases because we have not reviewed them. For instance, theft of a bicycle attracts equal punishment as theft of a car.

“Any theft is regarded serious because we consider the intention behind it and the danger it posed to the victim. There are no exemptions at the moment until we review the laws,” said Tembo.

This is a challenge as it means all civil and criminal cases should be taken to formal courts. Traditional courts were abolished in 1994.

The conventional legal system—composed of few magistrate courts, high courts, and the Supreme Court of Appeal, cannot support the high population, leading to congestion in both police and prison cells.

In 2011, Parliament passed the Local Courts Bill. The Bill seeks to introduce a new genre of courts with the primary function of dispensing familiar and affordable justice for ordinary Malawians in line with the Constitution which aims at enhancing the right of access to justice by all citizens.

However, chiefs need to understand the basics of how to handle cases.

It is for this reason that the Catholic Commission for Justice and Peace (CCJP) thought of introducing the Malawi Primary Justice Programme (MPJP) to equip traditional leaders with knowledge of resolving some cases at village level to control number of cases reported to police and formal courts.

The project kicked off in June 2012. It targets select traditional authorities (T/As) in the country’s 28 districts. According to MPJP Southern Region coordinator Dalitso Mipando, the project has so far reached 236 T/As.

Makolosa was among the trainees drilled in case handling last month. He says now he is able to settle such cases as maize theft and land disputes without involving the conventional courts.

“People are now able to live peacefully with those they offended. I am well equipped that I can resolve disputes while maintaining peace between the offender and offended. We are working hand in hand with the formal courts,” he says.

T/A Kapeni believes that informal court is a solution to police and prison cell congestion. He, however, calls for massive sensitisation to encourage people to prioritise seeking legal support from local leaders.

Edge Kanyongolo, associate professor of law, says informal justice is the best way to go as it improves access to justice to people in their localities.

“The formal justice sector does not meet the demand for justice services in the country, while the informal justice court is accessible to everyone, needs little finances and the language used is understood by all citizens. All these factors surpass formal justice sector in terms of relevance to local masses,” says Kanyongolo.

He says to perfect the MPJP project, there is need to set structures to guide chiefs when presiding over cases.

“The formal justice system is well structured and has monitoring mechanisms which controls how people in the system should work. While we are training the chiefs on how to handle some cases at village level, we need a system that should guide the chiefs and safeguard the offenders,” says Kanyongolo, adding that fairness and respect to human rights should be paramount in informal court proceedings.