Pains of detention without trial
In 2010, Parliament enacted the Criminal Procedure and Evidence Code (CPEC) that empowers the court to release suspects at the expiry of the pre-trial custody time limit. For murder cases, the limit is 90 days. But as our Reporter JOHN CHIRWA finds out, thousands of homicide suspects are suffering in jail without trial after their time of detention expired. This is a violation of human rights, he writes:
They say life begins at 40. But for Zimema Nyoni, who turned 40 this year, life hasn’t yet started. He is a murder suspect remanded at Mzuzu Prison for 11 years without trial.
He was arrested in 2008, but to date he has not been tried in court.
Nyoni sees himself languishing in jail for more years to come, and his future looks blurred and hazy.
“It appears the justice system has forgotten me. I am condemned to rot in jail for life without any sentencing. It’s ironic because I am told today is the Human Rights Day,” he said during the Human Rights Day commemoration organised by Youth Watch Society at Mzuzu Prison.
Nyoni’s case is committed to the High Court in Mzuzu with a register number Mu/cr/334/07/08. The police claim to have finished investigations with State/prosecution ready for trial.
But surprisingly, trial has not commenced although his file was moved from a magistrate court to the High Court in 2013.
“I was granted bail in 2013 by Justice [Dingiswayo] Madise on condition of paying a bond of K20 000. I remember some well-wishers gave me K30 000, but I don’t know how this money was used,” he says.
Nyoni comes from Yohane Jere Village, Traditional Authority Mtwalo in Mzimba. He is suspected of beating up his wife to death after a quarrel.
“My mother has tried to push for my release, but it is not working. I have now almost given up hope,” he says.
Nyoni’s case is contrary to the Criminal Procedure and Evidence Code (Section 161A – 161J) which deals with issues of arrest and detention in Malawi.
It states: “In the subordinate courts’ trial must start within 30 days.
“In the High Court trial must start within 60 days, except for serious crimes when the limit is 90 days.”
But at Mzuzu Prison, investigations The Nation conducted showed that out of 857 inmates,122 suspects are on remand, some of whom have exceeded the stipulated pre-trial custody time limit.
Mzuzu Prison officer-in-charge Zacchaeus M’bawa says 47 of the suspects on remand are suspected of murder. Nyoni is the longest serving murder suspect at the facility.
Malawi Prisons Service figures indicate that the country has about 14 000 inmates, and over 1 000 of them are awaiting trial for murder cases. At least half of these are said to have exceeded the pre-trial custody time limit.
Youth Watch Society executive director Muteyu Mukhuta Banda says it is surprising that this is happening when the country has progressive laws to protect the rights of suspects.
“It’s nine years since we passed that piece of legislation. But with these complaints, are we really using the law?” he queries.
Banda says this simply means that Malawi is failing to make strides with its democracy as the justice system is failing to uphold the rights of inmates or suspects.
Centre for Human Rights Education, Advice and Assistance (Chreaa) executive director Victor Mhango says mystery surrounds the enforcement of this law.
“We have a good law. But we are equally surprised why the magistrates are failing to implement it. We are also surprised how someone who was arrested three years ago can undergo trial, leaving out someone who was arrested 11 years ago,” he says.
Mhango says this simply shows that the country’s criminal justice system is lacking mechanisms in tracking cases and that the law is applied selectively.
“If it’s a politician, the rich or individuals of other nationality, this law is enforced. But for a common poor person, it is never enforced,” he says.
As such, Mhango says the poor are supposed to find comfort in the Legal Aid Bureau.
“But this office is understaffed and under-resourced to pursue murder cases which require a lot of resources,” he says.
Legal Aid Bureau chief legal aid advocate (North) Chimwemwe Chithope Mwale agrees on understaffing, saying his office has five lawyers to service the entire Northern Region.
“We don’t just represent people in criminal cases. We also represent people in civil cases,” he says.
Nationwide, the bureau has offices only in Mzuzu, Zomba, Blantyre and Lilongwe. However, plans are underway to open new offices in Karonga, Nkhotakota and Mulanje.
Commissioner of prisons Clement Kainja says such a gap in enforcing the law is also a contributing factor to congestion in prisons.
“For instance, the capacity of our prisons is 7 000 inmates, but we are currently keeping around 14 000 prisoners. This is a big challenge,” he says.
Kainja says the prison service has no mandate to release suspects, except to provide security.
“All we can do is to provide necessary information on who has stayed longer than necessary. So, this issue is multi-sectoral. The courts, the legal aid and the police have the role of making sure that our criminal justice system is moving perfectly,” he says.
Madise admits that the buck stops at magistrates or judges to enforce the law.
“That’s why we say at least once or twice a month, we should be coming to prison to hear out the prisoners. If you send people to prison, you should be able to go there and see how they are living.
“The law actually provides that magistrates and judges should visit the prisons under the Prisons Act. They are actually called visiting justices of prisons,” he says.
Madise says “no one should give an excuse because this is part of our job”.
However, inmates at Mzuzu Prison say they are not visited by the judges or magistrates.
Mzuzu principal resident magistrate Paul Chiotcha admitted that the magistrates and judges are to blame but was quick to say that other players in the justice system also play a part in speedy trial.
“All players in the justice sector need to take action to make sure that these cases are tried within the time limit set by the laws,” he said.
