Detained without trial, ‘forgotten’

Thousands of suspects are detained without trial, some for over 10 years, with the State and Judiciary being the main culprits, our investigations have revealed.

Statistics sourced from Malawi Prisons Service (MPS) show that as of March 6, 2024 out of a population of 16 877 prisoners in the country, 5 200 or 31 percent were detainees waiting for trial.

In a telephone interview last week, Director of Public Prosecutions Masauko Chamkakala acknowledged the problem, adding that it is not only those in custody whose cases take long but also those on bail.

The status quo is not only unconstitutional but it is also against the spirit of the Sustainable Development Goals 16 which calls for respect for the rule of law as a catalyst for development.

Since November last year, we have been investigating how the criminal justice system in Malawi was adhering to legally prescribed time limits for pre-trial detention.

Our findings reveal a pervasive breach of the law and gross violation of human rights as most suspects, especially for homicide, have been subjected to lengthy detention without trial.

Out of a sample of 440 suspects on remand at Maula and Chichiri Prisons, over 65 percent have been detained for more than a year awaiting trial.

Extreme cases include detainees for over 10 years, which dents the country’s human rights record and puts to question its seriousness in upholding the Constitution.

The DPP blamed the pre-trial detention of suspects beyond the legally set limits on the manual case management system.

He said: “If you are using technology, you should be able to get reminders and then you don’t get to forget people. But the way it is done, it is purely manual and in case where you do not have vibrant legal aid, which should help the State to remember, it becomes a problem.

“We have, at every stage, to capacitate institutions involved. I think we need to be innovative on how best we can dispose of these matters. With the current workforce, the current population and the current rate of criminality, this problem will always be there. We must find a way [to resolve it].”

Chamkakala said there is need for a 360-degree assessment of the justice system to know what is needed to have an effective mechanism of dealing with cases.

“You must also understand that the vacancy rate is high and we continue to lose more officers to the private sector. In January 2023, we had around 419 prosecutors and currently there are about 22 State advocates in the country. So, imagine these numbers against a population of 21 million, with crime being committed every day.”

As of September 2021, the Legal Aid Bureau which provides legal representation to people who cannot afford to pay for the services had a vacancy rate of 75.6 percent.

A prosecutor is a special legal officer whose job is to begin legal action against someone accused of a crime and show in court the person really committed the crime. While a State advocate is a government legal officer with power to talk for someone in court.

A Paralegal Advisory Services Institute (Pasi) prison audit done in September 2023 at Maula and Kachere prisons in Lilongwe, showed that 49 percent of remand population overstayed against statutory custody limits for felonies and misdemeanour charges.

The Pasi audit further revealed that 57 percent of those charged with homicide at Maula and Kachere prisons in Lilongwe and 14 percent at Mzuzu Prison have not been to court for over a year.

Adds the audit: “13 percent (Maula/Kachere) and 11 percent (Mzuzu) charged with homicide, have been waiting for over four years for trial.”

In her paper: ‘The Role of the Judiciary in Safeguarding and Ensuring Access to Criminal Justice During the Pre-trial Stage: The Case of Malawi’,presented in Mangochi in 2016, Justice Dorothy nyaKaunda Kamanga quoted prison statistics for February 2016 as showing that “out of a total of 11 187 prisoners, 2 603 were on pre-trial detention and 546 had been detained for more than 90 days.

The paper also indicated that case statistics at the High Court Principal Registry showed that a total of 1 104 motions for bail or release from custody were registered during a seven year period between 2010—2016.

Observed Justice nyaKaunda Kamanga: “The resultant annual average of 157 applications is an indication of the volume of suspects of serious criminal offences on pre-trial detention who have challenged their right to liberty in court.”

She argued that the lengthy pre-trial detention undermined the constitutional principle of presumption of innocence and the rule of law.

She stressed: “The judiciary has the supreme responsibility to safeguard and protect the various rights that accrue to persons arrested or detained for allegedly committing a criminal offence. Some of the main procedures that take place at the pretrial stage are the commencement of criminal proceedings, applications for release or bail pending trial and framing of charges.”

The judge argued that the maximum period a suspect can be detained, if there are no compelling reasons from the State, is 120 days after which Judiciary should exercise discretion to release them.

While nyaKaunda Kamanga’s analysis suggests that the Judiciary is complicit to this lawlessness, High Court and Supreme Court registrar Kondwani Banda insisted that the courts “almost in all circumstances act as per the demand of each case”.

Malawi Prison Service national spokesperson Chimwemwe Shaba said they do not have segregated data showing the length of custody for each of the suspects in prison but confirmed that pre-trial detention was a serious issue.

Said Shaba: “Our challenge is that our record management system is currently entirely manual. But the general fact is that prisoners, especially those answering homicide charges, do overstay on remand up to five to seven years. Most prisoners stay on remand beyond their custody time limit.”

In a written response, Chief Legal Aid advocate Bwighane Mwenifumbo also confirmed that there are several homicide suspects under their representation who have overstayed in prison before their cases are committed to the High Court. She said at Maula Prison alone, there are over 350 homicide suspects awaiting trial.

Mwenifumbo said: “To be frank, pre-trial custody limits are not observed. Additionally, the fact that the limit has been exceeded is not a guarantee that bail will be granted. Most of those on remand have not been committed to the High Court. Most of the people for whom we apply for bail have exceeded the pre-trial custody time limits.”

Malawi Human Rights Commission (MHRC) director of civil and political rights Peter Chisi, without stating numbers, said during their routine prison visits, they have come across several prisoners, mostly murder suspects, who have spent   more than 12 months without being taken to court.n

To be continued in Nation on Sunday

Do not miss the last part of the story in tomorrow’s issue of our sister newspaper Nation on Sunday where we tell more sad stories of people who have suffered the injustice and what the law says.