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.