MBP Annual Report y/e March 2022

You can read about our achievements between April 2021 and March 2022 in our most recent annual report, available via the Charity Commission website. Any questions or comments gratefully received.

Our Founder speaks to Bryn Frere-Smith on Justice & Coffee Podcast

In this episode, Bryn Frere-Smith talks to the UK Barrister and Founder of the Malawi Bail Project, Charlotte Mackenzie.

Charlotte grew up in south London with an interest in law that prompted her to take an evening class. She went on to pass the bar and take chambers at 42 Bedford Row Barristers where she currently practices family law.

When she was 21, Charlotte took a short-term legal internship in Malawi which changed her life forever and led to the creation of a charity aimed at educating thousands of Malawian people about their rights and releasing hundreds from illegal detention and imprisonment.

Listen to it here or wherever you find your podcasts

MBP featured in Counsel Magazine

Malawi Bail Project: accessing justice

Charlotte Mackenzie introduces the project increasing access to justice in Malawi through education on bail rights

The UK government’s decision to abandon its manifesto promise and legal commitment to maintain overseas spending at 0.7% of national income is a devastating blow for small charities and their beneficiaries. COVID-19 has disproportionately affected the poor and marginalised, magnifying inequalities and exacerbating injustice; our work in Malawi is needed now more than ever.

Prolonged pre-trial detention

Prisons throughout Malawi are severely overcrowded. The official capacity of the prison system is 7,000 people and the total number of prisoners currently exceeds 14,000. On 14 July 2020 the first COVID case was registered in Chichiri, one of the largest prisons in Malawi. Social distancing is not a luxury available to those sharing a 6m x 12m prison cell with over 200 other prisoners. There are two showers for over 2,000 men and prisoners have no access to soap unless supplied by their families. Many suffer from TB and HIV which puts them at higher risk of suffering complications related to the virus. Access to adequate healthcare is limited. This crisis is largely due to the increasing numbers of people imprisoned in prolonged pre-trial detention.

While the Constitution of Malawi contains explicit protections of liberty, including the right to bail and the right not to be detained without trial, these protections are meaningless for the majority of Malawians who cannot afford a lawyer. Due to the lack of legal aid lawyers, around 90% of people pass through the criminal justice system without advice or representation. An estimated 75% of detainees are both unaware of their right to bail and are not informed of this right at the police station or during their first court appearance. Consequently, those accused of petty or non-violent offences, who would prima facie be good candidates for bail, are unnecessarily and unlawfully imprisoned in overcrowded and inhumane conditions. Case backlogs mean detainees spend years awaiting trial. People with no previous criminal history, alleged to have stolen food to feed their family, can be imprisoned for over a year awaiting trial when the sentence for this crime, if convicted, would only be a small fine. Moreover, case files are often lost and people are simply forgotten in the system. The Malawi Bail Project (MBP) was founded to address these injustices.

MBP is a UK-registered charity that funds and delivers access to justice initiatives and activities in Malawi. We have three core objectives: (i) legal empowerment for the poor and vulnerable through community education; (ii) capacity building of professionals in the criminal justice system; (iii) the promotion of rehabilitation of ex-prisoners. MBP delivers these aims in partnership with a local NGO, the Centre for Human Rights, Education, Advice and Assistance (CHREAA).

Legal empowerment and rehabilitation

Rather than relying on underfunded and overwhelmed state agencies to protect the vulnerable, we provide detainees with the tools to empower themselves. We have produced an ‘Understanding Your Right to Bail’ booklet which is distributed by paralegals to magistrates’ courts and police stations. Detainees who cannot read benefit from the speaker systems we install at key police stations and court holding cells to play recorded audiotapes which explain how and when to apply for bail. Friends and family members of detainees can receive practical advice via a freephone Paralegal Advice Line which is available 24/7. CHREAA paralegals regularly attend police stations and court holding cells to provide free legal advice on bail issues to those accused of minor/petty offences and to assist those granted bail with identifying a surety and/or obtaining the funds for the bail bond.

Since our initiatives have been in place, over 85,000 detainees have accessed our bail booklets and audio tapes and over 2,000 people have received advice and assistance through our paralegal advice line.

In 2017 MBP partnered with Nkhokwe Arts Group, a group of ex-prisoners using theatre to educate local communities on social justice issues in an engaging way, to devise a play about bail and the consequences of crime which is performed to communities across the Southern Region of Malawi. The actors perform scenes relating to bail rights, corruption in the police system, and the impact this has on families left behind. The direct experience actors have had of arrest, trial, and imprisonment gives the performances a uniquely personal edge. CHREAA paralegals attend to guide the audience through different outcomes during the performance. Over 6,000 community members have attended these performances since the partnership began.

By funding Nkhokwe Arts performances we also provide ex-prisoners with an income and support system upon leaving prison, many of whom are targeted by police upon release and face stigmatisation in their communities.

Capacity building

We facilitate separate trainings with magistrates and police officers to explore ways of making the justice system more accessible for the poor and unrepresented. We have worked with lay magistrates, Chief Resident Magistrates, and Registrars of the High Court from all the four regions of Malawi to put together comprehensive and user-friendly bail guides, to assist magistrates in making decisions regarding bail. This guide has been printed and distributed to every court in the Southern Region and major courts across Malawi.

We also work with the prison service, prosecutors, Legal Aid Bureau and judiciary to facilitate ‘Camp Courts’, special court sessions where magistrates are brought to the prison to consider bail applications from those charged with minor offences, those whose remand warrants have expired, or where the accused is particularly vulnerable. Camp Courts are a cost effective, time efficient way to decongest prisons. Over 1,000 vulnerable detainees have been released on bail or acquitted through MBP.

COVID-19

As key workers, CHREAA’s paralegals have continued to work throughout COVID. At the height of the pandemic in Malawi, CHREAA reported the government were failing to provide hand sanitiser and masks for prison officers and prisoners and only provided a small number of testing kits; 112 kits for over 2,000 prisoners at Chichiri. The prisoners who did test positive were returned to overcrowded cells. In an effort to stop the spread, the government prohibited prison visits; meaning an end to the food packages brought by friends and family to supplement the small bowl of maize and beans which constitute the prisoners’ daily rations.

Following calls from civil society organisations like CHREAA, in August and December 2020 President Chakwera took the decision to pardon some pre-trial detainees and those prisoners who had served the majority of their sentence, to decongest the prisons. Sadly, the third wave of COVID-19 has now hit Malawi. Police stations are increasingly overcrowded due to the reduced number of court sessions taking place and police continue to conduct ‘sweeping’ exercises to detain large numbers of people under vague and outdated (colonial) Penal Code offences, such as being ‘idle or disorderly’. Many are now been arbitrarily detained for not wearing a mask, despite masks being unavailable and/or unaffordable for most Malawians; 69% of the population earn less than $1.90 a day.

Systemic problems in Malawi’s prison system existed long before the emergence of COVID-19, but the pandemic has served to make the need for reform even more urgent. Education on bail rights is no longer just a criminal justice issue, but a matter of public health. 

Read the full article via Counsel Magazine online

Covid-19 Statement of Support

The board of trustees of the Malawi Bail Project would like to reassure our partners and grantees we are continuing to function as normal, including the consideration of all applications for funding. We recognise this is a deeply challenging situation on a local, national and global level and remain committed to supporting our partners and grantees as best we can through these unprecedented times. We aim to be as flexible as we can and understand there may be a need to respond quickly to ever-changing realities. We are here to support the vital work our partners and grantees do and to do all we can to ensure they are kept safe and fully assisted.

2021 Virgin London Marathon

The Virgin Money London Marathon due to take place in October 2020 has now been postponed until April 2021.

We are excited to announce we now have a new runner who will be fundraising for us - Stephen Bush.

You can donate to support Steve via his Virgin Money fundraising link -https://uk.virginmoneygiving.com/StephenBush5

Chichiri Performing Arts Group

Last week the newest Malawi Bail Project activities started to take shape – over five days the dusty courtyard at the back of the Chreaa offices became full with song, stomping and stories. The group of 12 ex-prisoners who used to be in the Chichiri Performing Arts group met to develop a play about bail in Malawi. Each day would begin with songs and games we learnt while working together in prison, the same rituals but now outside with no prison uniforms or jangling keys to signify the 3pm lock up time.

Over the week we familiarised ourselves with the procedures and challenges of applying for bail in Malawi, and Chreaa’s Victor Mhango took time out to share with us the recorded information they provide in police stations and to answer questions. One of the best days was spent at Chichiri Prison with the members of the current Performing Arts group. There are 25 members and together with the outside group and facilitators this made for a massive circle of people when opening and closing the workshop, and an epic game of Chipako cha Njoca (Snake Tag)! This workshop was about sharing stories about bail. People paired off and quietly discussed with each other their experiences – everyone had a story. Many had applied for bail and been unsuccessful, not knowing when to ask or what to say in court, some had been granted but whose family couldn’t afford it, others hadn’t known about bail at all until it was too late.

These stories formed the basis of our play which follows the stories of four men arrested after stealing a car. The play sees each one of them face challenges relating to bail including corruption in the police system and lack of knowledge as well as showing the impact this has on families left behind. The direct experience each group has had of arrest, trial and imprisonment means the play is deeply personal to everyone – particularly the end scene where all four men spend their first night in Chichiri Prison and realise the conditions they will be living in for their sentences.

We took the play back to Chichiri to show the other group, who watched and cheered as their friends performed, loudly answering the questions of the facilitators (also ex-prisoners) who interject throughout the play to talk about what is going on, ask the audience questions and get them onstage to try out solutions. This Friday we will be performing the play at Chichiri Prison – approximately 1900 inmates – a lot of whom may know something about bail but many who won’t and may even be in Chichiri through lack of knowledge. Statistically this group is very at risk of re-offending, so these are some of the key people for this project to target. For the group performing, it will be exciting and emotional to perform as free men within the walls they served years of hard labour. We will be there to record this moment and posting updates as we do!

Pre-trial detention in Malawi

Fair Trials International Guest Post (09/06/2014): Continuing our series of guest posts on pre-trial detention, Charlotte Mackenzie from the Malawi Bail Project takes a look at the situation in Malawi:

The Constitution of Malawi contains explicit protections of liberty, including the right not to be detained without trial and the right to bail. Under the African Charter on Human and Peoples Rights 1981, which Malawi ratified in 1989, every individual has the right to have his cause heard and further the right to be tried within a reasonable time by an impartial court or tribunal.

Despite the domestic, regional and international protections, the majority of Malawians in the criminal justice system are unable to exercise these rights. Most accused cannot afford a private lawyer, and as there are only around 20 legal aid lawyers currently practicing in Malawi, a large amount of arrested persons will not apply for bail and are detained pending further investigation.

The Malawi Criminal Procedure and Evidence Code (Section 161) sets out the maximum time a person should spend in custody pending committal or commencement of trial is 30 days. However, in Chichiri prison alone, around 800 of the 1800 inmates are imprisoned on remand and have been detained there for months or years without trial.

This unnecessary prolonged pre-trial detention has created severe overcrowding, with a prison system with a capacity of 6,000, currently holding over 13,000 prisoners. The conditions prisoners have to endure during pre-trial detention are dire. In Chichiri prison, the largest prison in the Southern region of Malawi, sixty person capacity cells are holding over two hundred men. Conditions in the prison are insanitary, with only two showers for two thousand men leading to the inevitable spread of infectious disease, most commonly TB and HIV. Those who avoid catching an infectious disease are at serious risk of dying from malnutrition, as food shortages are common and inmates are only given one small cup of Nsima (a maize based staple food) a day, depending on the prison budget.

In 2007, an ex inmate brought a case against the government alleging that he had been subjected to torture and cruel, inhuman and degrading treatment throughout his imprisonment (Masangano v Attorney General & Others (15 of 2007) [2009] MWHC 31. The court held that overcrowding violated basic human dignity, amounted to inhuman and degrading treatment and was therefore unconstitutional. The court directed the government to comply with the judgment “within a period of eighteen months by tak ing concrete steps in reducing prison overcrowding by half, thereafter periodically reducing the remainder to eliminate overcrowding and by improving the ventilation in our prisons and, further, by improving prison conditions generally.”

Despite the judgment in 2007, reports by Amnesty (https://www.amnesty.org/en/region/malawi/report-2011) and OSISA (http://ow.ly/vy7v8) in 2011, show that little progress has been made to reduce overcrowding and the conditions for prisoners.

The Malawi Human Rights Commission recently accused (http://mwnation.com/malawi-prison-treatment-unconstitutionalmhrc/) the government of failing to meet their obligations under section 42 of the Constitution of the Republic of Malawi and has recommended they put in place a long-term strategy to improve conditions for prisoners. Unfortunately, it is unlikely the Government will be tackling the overcrowding anytime soon. The corruption scandal dubbed “Cashgate” (http://www.theguardian.com/world/2014/jan/14/malawi-prepares-cashgate-corruption-trial), which is currently dominating Malawian politics, will require all of the criminal justice system’s resources to undertake a mass trial of 100 civil servants and high profile figures. Increasing delays are already affecting those in pre-trial detention. CHREAA a prisoners’ rights NGO based in Malawi, has reported that none of their bail applications have been heard or allocated dates since February this year.

Malawi's criminal justice system is in need of urgent reform

Malawi ranks among the top 10 recipients of UK aid and, while the economy has grown in recent years, more than 50% of the population still live below the poverty line, according to the World Bank. The main focus of aid is poverty reduction through health and education projects. Projects aimed at improving access to justice for the ordinary citizen are few and far between.

A local human rights NGO, the Centre for Human Rights, Education, Advice and Assistance (Chreaa), based in the commercial capital, Blantyre has been working since 2002 to protect the rights of marginalised prisoners subject to long pre-trial detention, the majority of whom will not have access to legal representation, through its paralegal advisory service.

Two years ago, I began volunteering with Chreaa, interviewing prisoners and drafting bail applications for homicide remandees who had been unlawfully imprisoned for many years, still waiting for a trial date. The applications I drafted were not heard by a judge for many months, as all 200 courts across Malawi were closed due to a strike by court staff over pay shortly after I arrived.

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However, the police continued to arrest hundreds of people, bypassing the courts and detaining them without proper authority.

This wasn't limited to the strike period. In Chichiri prison, one of the largest in southern Malawi, a homicide remandee will spend on average three years in jail before the trial starts.

The trial itself can take two years to complete due to frequent adjournments, and even after it has concluded, remandees can expect to wait another 12 months before judgment is handed down. It is standard practice for people charged with less serious and non-violent offences to wait months in prison before being brought back to court, when they cannot afford the disproportionate bail bond. This unnecessary imprisonment of people who, under Malawi's own laws, should have the opportunity for bail, has led to severe overcrowding in prisons.

In addition to strikes and an under-resourced prison service, the justice system suffers from a chronic lack of state-funded representation. The majority of people arrested are unable to afford a private lawyer and, with only 22 legal aid lawyers in the entire country, more than 90% of people arrested will go through the court process without legal representation.

I have been working with Chreaa to address this issue by establishing an access to justice project , focusing on empowering arrested persons to represent themselves in applying for bail. It is unrealistic to suggest that every individual arrested in Malawi must be given access to a lawyer. However, it is realistic and achievable to ensure that every person has access to information about their basic legal rights.

We have produced a legal education booklet, with illustrations to show how and when to make a bail application. It also has a free phone number for a 24/7 advice line, managed by the paralegals at Chreaa. We work closely with local magistrates and the police to develop the dialogue between the accused and those working in the justice system. By informing people of their right to bail prior to their first court appearance, we hope to increase the amount of bail applications heard and granted, as well as reduce the large number of people held unecessarily in pre-trial detention across Malawi.

Progress hasn't been easy. We faced logistical challenges in distributing booklets to rural courts. We discovered we would need to print twice as many booklets because prisoners wanted to take them home to their families rather than return them to the court clerk.

But our work has received a positive response. Magistrates want to attend our bail discussion forums. We also received encouraging feedback after inviting former prisoners to speak to the magistrates about their experiences of the system. One magistrate said it had opened her eyes to how intimidating the process can be and said that in future she would visit the holding cells to speak to prisoners before they come into court.

In terms of tangible impact, data collected on project which was originally funded by Matrix Chambers Community Fund, but is now supported by DfID shows that in Blantyre and surrounding areas 54% of people were granted bail between August and October 2013, compared with just 8% in the year prior to its implementation.

But prisoners cannot expect swift access to justice just yet. They will have to wait as a mass trial of more than 100 people involved in a government corruption scandal, dubbed "cashgate", starts this February. This will require judges and new court spaces, placing a huge strain on a criminal justice system already at breaking point. While president Banda's efforts to "clean up the mess" and appease donors is today's news, the work of reforming Malawi's legal system and offering access to justice will continue largely unseen and unaided.

Published on The Guardian online on 5th February 2014

Malawi: Justice for the Rich, Prison for the Poor

Being in prison in Malawi can be a tale of two justice systems. One involves legal representation, bail hearings and careful treatment. The other doesn’t.

Inmates at Chikhwawa prison during a visit from the Deputy British Commissioner of Malawi, organised by CHREAA. Credit: Charlotte Mackenzie

In the last year or so, Malawi’s justice system has had more than its fair share of VIPs coming through its doors. In October 2012, several high-level officials linked to Democratic Progressive Party (DPP) were arrested in connection with the death of student activist Robert Chasowa, who was murdered in 2011 when the DPP was in office. And in light of the recent government corruption scandal – dubbed Cashgate in reference to the wads of cash found in suspects’ homes and cars – more high-ranking figures, including former justice minister Ralph Kasambara, have been taken into custody.

For once, these individuals are seeing their country’s justice system from the inside. But in Malawi, justice, like so many other things, seems to be a privilege rather than a universal right. And the experience of Malawi’s VIPs is likely to be a universe away from that of the 12,000 ordinary citizens detained in prisons across the country.

A tale of two justice systems

Robert Chasowa, a student activist and critic of the late Malawian president Bingu wa Mutharika, died in September 2011. Against much outcry and suspicion, his death was originally classified as a suicide. After Mutharika passed away and Joyce Banda took over the presidency in April 2012, however, she reopened the case. A few months later, in October 2012, several figures – many members of the DPP – were arrested in connection with Chasowa’s death, now being treated as the result of murder, and transferred to Chichiri prison in Blantyre, the largest in the Southern region.

Working in the prison at the time, the high-profile detainees were immediately noticeable. After all, it is extremely unusual to find well-fed inmates dressed in suits and laughing with the prison guards. And it is even more unusual that within an hour of arriving in the prison, these detainees had met with their private lawyers who soon set to work on their bail applications.

This treatment could not be more different to that of the majority of Malawian prisoners. Most of those who find themselves in Chichiri arrive handcuffed, emaciated, and in torn clothing. They are welcomed by being lined up in the prison courtyard and humiliatingly strip-searched. 90% of all Malawi’s prisoners cannot afford legal representation and have to rely on the country’s 28 overworked and underpaid legal aid lawyers. Defendants rarely get the opportunity to meet their lawyers before trial.

Furthermore, the conditions for ordinary prisoners are dire. Overcrowding means prison cells built to hold 60 men are often filled with 200. Disease spreads easily, resulting in a high number of deaths from the likes of tuberculosis and AIDS. And if you manage to avoid catching an infectious disease, you are also at risk of dying from malnutrition as inmates may only be given one small cup of Nsima (a maize based staple food) a day, depending on the prison budget.

Waiting for ages

Malawi’s ordinary prisoners can also expect to stay a lot longer in these prisons. In the case of Chichiri’s high-level guests, the suspects spent seven days in the prison’s VIP section before being brought to court and released on bail the same day – and to the tune of an estimated 7 million Kwacha ($17,000). When releasing the accused, High Court judge Sylvester Kalembera declared that the defendants should not remain in custody as they await their trials “unless the State justify why the applicants must remain in custody.”

Unfortunately, this is not a test that is rigorously applied to all who find themselves in prison on murder charges. In Chichiri, there are currently over 300 men awaiting trial on murder charges, and the average wait is around 3 years. When speaking to these men, it is hard to think of reasons the state can justify these prolonged pre-trial detentions, and even harder when you discover that the majority of these men don’t even have a case file.

One of the most devastating examples of unjustified pre-trial detention was the case of Boxten Kudziwe, who was recently found not guilty and released after a staggering seven years in Chichiri prison. Boxten had been held on remand since 2006 on the basis of a false confession, signed after days of beatings by police.

To try to support these inmates, a small group of paralegals at the Centre for Human Rights, Education, Advice and Assistance (CHREAA), headed by Executive Director Victor Mhango, have been working hard for the past 12 years to educate prisoners on their basic legal rights and assist them in applying for bail whilst waiting for trial. Since January 2012, I have also worked with CHREAA to help establish an access to justice project, focusing on educating arrested persons on their right to bail using booklets, audio tapes and a 24/7 toll-free paralegal advice line. By informing those arrested of their right to bail prior to their first court appearance, the aim is to increase the number of bail applications granted and consequently reduce the large number of people unnecessarily held in pre-trial detention across Malawi.

Every defendant should be able to receive the “privileged” treatment of having legal advice and being able to apply for bail.

Justice, minister?

Earlier this month, former justice minister Ralph Kasambara was arrested in connection with the attempted murder of Paul Mphwiyo, the government’s budget director and a prominent figure within the Anti-Corruption Bureau. While updating his Facebook status from his prison cell, Kasambara’s lawyers were speaking with various judges across the country to arrange for his bail application to be heard as quickly as possible.

His case was submitted to the High Court on 11 November, however his bail hearing was unexpectedly delayed until 22 November. Then, in a surprise verdict last week, Justice Esme Chombo chose not to release Kasambara on bail and ruled that he should remain in custody for another 30 days to give the prosecution time to finalise their preparations for trial.

This could be interpreted as the judiciary taking a stand against the rich and well-connected. But this seems unlikely. Instead, it probably has more to do with Malawi trying to show it is taking a strong approach to Kasambara’s charges as it tries to convince its aid donors it can be trusted. Many international partners suspended budget support in light of Cashgate and want to see signs that the country is dealing with high-level corruption before it restarts its aid programmes.

In an unexpected twist of fate then, Kasambara finds himself on the other side of justice system he once oversaw. He may well be wishing he’d done more to change things when he had the chance.

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http://thinkafricapress.com/malawi/justice-rich-prison-poor