Justice in thin air

The criminal justice system is designed to ensure fairness in how suspects or convicts of various offences are treated.

But for 48-year-old Awali Matemba, who has spent 14 years in jail without trial—equal to serving a 21-year prison sentence—safeguards meant to ensure fairness in the treatment of suspects are ignored.

The man from M’bola Village, Traditional Authority (T/A) Lundu in Blantyre was arrested in January, 2007, at his house in Machinjiri and sent to Chichiri Prison.

Matemba said he was arrested in connection with two unidentified people, who had been robbed near his house. One of the victims in the said robbery later died in hospital. Police arrested and charged him with murder.

He appeared before the court only once in 2011—four years after his arrest.  Matemba said he could not afford a private lawyer so he was represented by one assigned by the Legal Aid Bureau.

However, since then, he has waited in vain for another court appearance.

State forgot me

Matemba claims he was forgotten by the police (arresting authority), the prison (detention authorities), the State Advocate (prosecutors) and the court (criminal justice system) because his case file could not be traced.

While there was no response from the police to our inquiry, Legal Aid Bureau  director Masauko Chamkakala disputed losing Matemba’s case file.

In an interview yesterday, he said the convict was never recorded a statement by the bureau as a murder suspect.

Chamkakala said according to information the bureau had, Matemba was arrested on the charge of robbery, tried and apparently convicted.

“So he was serving a sentence for robbery and not murder. His remand warrant and everything else at prison indicated that he was in prison because he was a convict,” he stated.

However, Matemba’s lawyers insist that prison authorities had no records for his incarceration and they hanged on to him; neither releasing him nor raising an alarm regarding his illegal detention.

They say that this was despite the fact that he had the right to be released from detention as per Section 42 (2) (e) of the country’s Constitution.

Flicker of hope

Across the prisons, there are several suspects like Matemba, who are spending long periods on remand, waiting for conclusion of their trials thereby increasing congestion in prisons.

However, a flicker of hope surfaced for Matemba in December 2019 when Community of Sant’ Egidio, through its legal clinic termed Justice for All, started pursuing the matter after he shared his story with them.

According to documents Weekend Nation has seen, lawyer Alexious Kamangila, who volunteers for the community, offered to represent Matemba.

He filed an application at the court under sections 41, 42 and 46 of the Constitution and other statutes like the Criminal Procedure and Evidence Code (CP&EC) and Statute Law Act for his release from detention.

Under those provisions Kamangila demanded Matemba’s unconditional release for unlawful detention and further asked the court to declare that effective remedy in his case entail compensation not mere release.

After two years of intense toiling, Matemba finally got his unconditional release last Wednesday after High Court Judge Agnes Patemba agreed that he was indeed being unlawfully detained.

“Upon careful consideration of the facts presented in this case, the court is of the considered view that the applicant [Matemba] was unlawfully detained and I order his immediate release from unlawful detention,” reads her judgement delivered on March 22 this year.

I committed no crime

In an interview as he walked out of Chichiri Prison, Matemba insisted he committed no crime as on the day of his arrest he was away to purchase merchandise for his business.

Matemba, who seemed calm but bemused with his walk to freedom, stated he had assumed he would die in jail as a guilty person without being given an opportunity to speak.

“Only Allah knows,” he said, shaking his head. “I never committed any crime but I have served 14 years. I never thought a day like this would come. I feel alive, resurrected and breathing an air of hope. My lawyer [Kamangila], who represented me free of charge, is an angel.”

At the time of his arrest, Matemba had a wife and two children but, as he walked out of prison, he had no idea about their welfare or whereabouts.

“I last heard about them in 2016. All my relatives had stopped visiting me; I was just alone, destroyed by a crippled justice system,” he said.

Patemba’s ruling

Patemba’s ruling has also ordered prison authorities to devise a mechanism and systems that would sound an alarm and flush out of detention people who are unlawfully detained.

Kamangila, who works for Reprieve, said it was not only embarrassing for the authorities but illogical that an accused person could be kept on remand for 14 years without trial.

He bemoaned a system that quickly serves those with ability to pay a lawyer while eclipsing the poor in the criminal justice system.

“Clearly there are serious questions this case raises, for the system to self-reflect,” Kamangila said.

Centre for Human Rights, Education, Advice and Advocacy executive director Victor Mhango described Matemba’s 14 years on remand as a “gross violation of a person’s rights.”

“It is very unfortunate but we are happy the court released him unconditionally. This will set a good precedent because there are so many people on remand who have been there for several years and they do not know their fate,” he said.

Mhango said the country’s Constitution states that a person has to be tried within a reasonable time and 14 years on remand was not only “unwarranted but inhumane”.

Prisons service legal officer Bazirial Chapuwala said Matemba’s case was affected by the torching of the South Lunzu Magistrate’s Court where his case began.

Prison records show that he was first admitted to Chichiri Prison on February 16, 2007 from South Lunzu Magistrate’s Court on a charge of robbery.

Twenty one days later he was retaken to the same court to be charged with murder under Homicide Case No.6 of 2006 and was readmitted to Chichiri Prison now as a murder suspect.

Chapuwala explained: “Where a person was initially admitted to prison under a valid warrant, it is not correct to state that the detention was illegal. Missing of the warrant does not negate the stay in prison if originally admitted on a valid warrant.

“What usually happens when a warrant misses, we go to the court and secure a replacement. His case which started at the South Lunzu Magistrate’s Court had been compounded by its torching of the  court by irate community members.

“This made replacement of the warrant untenable as all court case files preceding the inferno got lost in the fire.”

Breaches in criminal justice

In its 2018 report on inspection of prisons and police cells, the Malawi Inspectorate of Prisons observed there were serious human rights breaches in the manner the criminal justice processes are being applied.

The report said the remand population was contributing to the already congested prisons because some inmates stay for long periods before their cases are concluded.

There are currently 31 prison stations across the country built to accommodate about 6 000 inmates but they are holding over 14 000 inmates.

This overpopulation which is over 240 percent of the prisons’ official capacity debases the inmates as human beings, said the report.