Travesty of justice

Our sister paper Weekend Nation on Saturday published the first part of an investigative piece on the travesty of justice in the country about how suspects are detained for lengthy periods, some for as long as 10 years, without trial which is against the law. In this last part, we show how some suspects are incarcerated and what the law says.

Migoza’s long wait for trial

Among the suspects with longest stay in prison is Watson Migoza, a homicide suspect, who has been on remand at Chichiri Prison since 2007, or for 16 years.

While details on Migoza are quite scanty, his case awaits the State to move the courts.

Reads the case file: “His case was under the late Justice Manyungwa who ordered him to go for mental assessment after showing some violent conduct in prison. Mental assessment was ordered to ascertain if he was fit to live in a community or not before being granted bail.”

“Justice Manyungwa died and the matter was transferred to Justice [nyaKaunda] Kamanga and the suspect appeared before this judge once but the matter could not start because State prosecutors were not available and since then the suspect remains in prison.”

In a written response, High Court and Supreme Court of Appeal registrar Kondwani Banda said the court is waiting to hear from the Legal Aid Bureau.

He said: “The Assistant Registrar did send the order referring the accused for mental assessment to Legal Aid reminding them of the directive. They indicated they would make arrangements to do the needful and we are yet to hear from them.”

Legal Aid Bureau’s Mwenifumbo said she is not aware of this case and needed to “investigate with our officers”.

For the past 15 years Chichiri Prison has also been home to Alfred Black, another murder suspect arrested in 2009. According to what we have gathered, there seems to be confusion on Black’s record.

In 2022, we are told, there was communication that he would go to court but up to now nothing has happened.

On this, the Registrar said their records show that there is no docket on file but information they got from the prosecutor is that the case is handled in Zomba.

“The docket could be in Zomba. He (State prosecutor) said he needs to follow up. He says he appeared before Justice Kalembera once in the Eastern Region as before the current situation cases were being tried by judges in respective regions”.

Kalilitu Jimu, a foreigner arrested in 2011, is another suspect on a lengthy remand. According to the Registrar, bail was granted in 2022 but the suspect is yet to fulfil bail conditions.

Renowned private prosecutor Kamdoni Nyasulu said as long as the State has failed to prosecute someone within the prescribed time, courts are at liberty to release the suspects.

He said: “Usually after a certain period the court should be able to determine that the State has failed or is unwilling to prosecute and discharge the suspect based on Section 247 of the Criminal Procedure and Evidence Code.”

Maula’s Sagawa out after 12 years

Maula alone has 387 homicide suspects awaiting trial, half of whom have been detained for more than a year, according to records we have seen and confirmed to be true.

The prison was home to Chimwemwe Sagawa, a murder suspect arrested in December 2011 released in December, 2023 after spending 12 years for an offence that is yet to be tried.

Sagawa’s case was cited in a joint press statement by the MHRC and Legal Aid Bureau on April 25 last year, during the Africa Pre-trial Detention Day as a matter of concern.  The registrar confirmed that Sagawa, indeed, has been granted bail.

According to records at Maula Prison, we identified 10 suspects who have been detained for three to seven years without trial for offences such as defilement, robbery and assault. These include; Jackson Kapinde (2018), Francisco Petro (2019) and Chisomo Banda (2020).

“Inmates have raised a concern that the police are swift in effecting arrests and taking suspects to court; once suspects have been remanded, they forget about them. To buttress the point, most inmates indicated that for most of them, the last time they were in court was when they were taken to be formally charged,” reads a joint statement from MHRC and Legal Aid Bureau released last year.

Law in breach

The Constitution under Section 42 (2b):  states: “Every person arrested for, or accused of, the alleged commission of an offence shall, in addition to the rights which he or she has as a detained person, have the right …

“As soon as it is reasonably possible, but not later than 48 hours of the arrest, or if the period of 48 hours expires outside ordinary hours or on a day which is not a court day, the first court day on such expiry to be brought before court to be charged or to be informed of the reason for his or her further detention, failing which he or she shall be released”.

The Criminal Procedure and Evidence Code (CP & EC) also provides pre-detention guidelines on how long a suspect can be kept in custody awaiting trial.

According to these statutes, the maximum period that a person accused of an offence triable in a subordinate court may be held in lawful custody pending commencement of his trial in relation to his offence shall be 30 days. This can only be extended upon an application by the prosecution but such extension should not exceed 30 days.

In her analysis of this provision, Justice nyaKaunda Kamanga said in most serious cases such as homicide the maximum allowable period is 120 days.

She argues: “Detention before trial after the custody time periods are exceeded should lead a court to form the view that further detention without commencement of trial violates the presumption of innocence, is unreasonable and a judicial officer should seriously consider discretionary powers to release the person who has been in prison longer than necessary.”

The 2022 Malawi Human Rights Report observes that in some cases “the actual length of pre-trial detention equalled or exceeded the maximum sentence for the alleged crime”.

Malawi Human Rights Commission (MHRC) director of civil and political rights Peter Chisi said they plan to meet the Chief Justice for his intervention on the issue of lengthy detentions without trial but did not indicate when.

Asked what the Malawi Law Society makes out of detentions without trial, the organisation’s secretary Gabriel Chembezi said they have undertaken serious interventions that will improve judicial accountability, citing the proposed enactment of the Judicial Service and Administration Bill as one of the instruments that will help address these cases.

Added Chembezi: “Apart from the above interventions, the Society has directly been involved in the representation of indigent clients, including those answering cases through its pro bono service arrangement.”

Centre for Human Rights Research, Advice and Assistance (Chreaa) executive director Victor Mhango, whose organisation promotes justice, said he is fully aware of lengthy detentions without trial and has referred many to State authorities such as police, Legal Aid Bureau and MHRC. He said they conduct camp courts to help such prisoners get bail.

According to Mhango, there are several reasons leading to the high rate of pre-trial detention including a backlog of cases facing the judiciary and the small number of State prosecutors, but this should not be an excuse to defy the law.

He pleaded: “In cases where the police delay to provide evidence, the courts have been ordinarily reluctant to acquit accused persons. It is high time the judiciary took a more strict approach to dispose of these cases.”

In 2018, Justice Zione Ntaba ordered an investigation against the police for keeping a suspect (Harrison Konala) in custody for a month before remanding the same in prison for three months for a murder offence the suspect never committed. The judge deplored the level of negligence from police and the office of Director of Public Prosecutions to have “an innocent man imprisoned for that long period”.