Judge, rights activists call for criminal procedural laws’ review

Supreme Court of Appeal Judge Dorothy Nyakaunda Kamanga has said prisoners have a constitutional right to a review of sentences, the statutory framework and system for confirmations continue facing legal and practical challenges.

In their response to the judge’s assertion, human rights advocates said in separate interviews that the legal and practical challenges consequently deny prisoners the opportunity to benefit from this right.

Nyakaunda Kamanga has since stressed the need for further review of criminal procedural laws and related legislation and the promulgation of criminal procedure rules to facilitate progressive realisation of the constitutional right to review.

 The Justice of Appeal was speaking in Blantyre this week during a two-day Constitutional Conference jointly organised by the Malawi Law Society (MLS) and University of Malawi (Unima).

 Presenting her paper titled, “Implementation of the right to review and the sentenced prisoner population,” Nyakaunda Kamanga said review was parallel to the appeal process and was an alternative revisionary mechanism in criminal matters.

The review process is provided in Section 42(2)(f)(viii) of the Constitution and  allows for modifying sentences imposed on offenders and potentially enhances the human rights of prisoners by reducing prison congestion.

 “The process is significantly undermined by delays in conducting the review process, poor drafting and the interpretation of Section 15 Cpec [Criminal Procedure and Evidence Code],” reads her paper.

Section 15 specifies categories of sentences imposed by subordinate courts that require confirmation by the High Court.

The judge, citing Section 15(3) of Cpec, observed the provision was poorly drafted as it neither explicitly grants the officer in charge of a prison the authority to release a prisoner, nor does it empower the officer to continue detaining a prisoner.

“The challenge of the section… as you can see the language and legislative drafting directly do impact how the accused can access justice,” she said.

Nyakaunda Kamanga said constitutional rights were inadequate and difficult to enforce without a clear progressive statutory implementation framework that goes beyond supervision of magistrates.

She observed that the recently passed Prison Bill presented a significant opportunity to incorporate provisions to enable the Malawi Prison Service to promptly facilitate the implementation and enforcement of confirmation, thereby facilitating the operationalisation of the constitutional right to review.

However, she suggested that duties of prison officials must be explicitly defined, as they are tasked with the obligation of maintaining accurate statistics regarding prisoners while concurrently confronting the practical challenges associated with prisoner management.

Reacting to the presentations, Centre for Human Rights Education, Advice and Assistance (Chreaa) executive director Victor Mhango observed that the judge’s concerns highlight a critical gap between constitutional guarantees and the lived realities of prisoners in Malawi.

He said: “While the Constitution rightly provides for the right to a review of sentence, the statutory framework and procedural systems remain outdated and dysfunctional, effectively denying many prisoners the opportunity to benefit from this right.”

Mhango observed that challenges facing the confirmation process, particularly in capital and serious offence cases, include delays, lack of legal representation, poor record management, and limited judicial resources.

“This creates a situation where individuals who may have been over-sentenced, unfairly convicted, or deserving of mitigation remain behind bars, in some cases, indefinitely.

“We strongly support the call for a comprehensive review of criminal procedural laws and related legislation to align with the Constitution and international human rights standards,” he said.

Mhango said without urgent legislative and institutional reforms, the constitutional promise of justice risks becoming hollow.

In a separate interview, Human Rights Defenders Coalition (HRDC) vice-chairperson Michael Kaiyatsa said the judge’s call carried a lot of weight and should prompt serious reflection and action from policymakers and legislators.

He said current gaps in the legal framework, particularly those that make it difficult for prisoners to exercise their right to sentence review, undermine the spirit of the Constitution, which guarantees the right to a fair trial and access to justice for all, including prisoners.

“Many prisoners, especially those from poor backgrounds, lack the legal representation and awareness needed to pursue sentence reviews, leaving them trapped in unjust circumstances.

“Addressing this through comprehensive legal reforms would mark an important step toward a more equitable justice system,” said Kaiyatsa.