Wheels of justice stop

When police arrested Dave Benito one sunny Friday, he expected them to release him after taking down his statement. At worst, he needed not spend more than 48 hours in police custody as required by Section 42 of the Constitution.

However, the 24-year-old minibus conductor, suspected of stealing a Coca-cola bicycle in Blantyre’s Manje Township on August 7, did not walk free. In fact, he spent nine days in a congested underground cell at Limbe Police Station, with no hope to be taken to court soon.

“I weep for my wife and children who endured untold misery when I spent over a week in confinement. They were starving,” lamented Benito in an interview at Limbe.

Benito is one of thousands of suspects affected by the closure of courts as the nationwide strike by Judiciary support staff enters the fourth week.

For those stuck in overcrowded police cells, justice delayed is justice denied.

The industrial action has clogged the wheels of justice, with no end in sight.

Malawi Law Society deplores the hiccup, saying: “Courts, by the very nature of their business, are never supposed to be shut down and rendered inaccessible to all those who might wish to call them to their aid.”

Detention without trial

However, rule of law and right to fair trial are constantly under threat as the disruptive strikes have become an annual nightmare in the country.

“I expected my case to move quickly, but the police told me to wait as they would not take me to court due to the strike,” he says.

Failure to formally charge him within two days contravenes Section 42 which outlaws detention without trial and guarantees the right for bail.

Dickson Chawanda, from Kachere Township in Blantyre, has spent over two weeks in police custody.

The 27-year-old was arrested on July 30 on allegations that he stole three litres of locally distilled liquor at Limbe Market.

Chawanda, who relies on food handouts from his cellmates, says his relatives do not know he is “rotting in the police cell”.

He hopes the strike would end soon, for he insists he is innocent until proven guilty by a court of law.

Benito and Chawanda, who were granted bail by magistrates who visited Limbe Police Station on Tuesday, personify the hardship of many Malawians who are trapped in police cells countrywide.

The striking court clerks, marshals, drivers, interpreters, reporters and administration staff demand housing allowance similar to what judges and magistrates get.

For those on remand in the country’s overcrowded prisons, the yearning for speedy trial persists as the wheels of justice roll no more.

The delay contravenes Section 250 of Criminal Procedure and Evidence Code which requires accused persons to spend no more than 15 days when committed to prison due to adjournment of their cases.

What’s suffering?

Four days into the prolonged stalemate, Judiciary spokesperson Mlenga Mvula told The Nation the country’s courts, which are burdened by a booming backlog, handle over 1 000 cases a day.

This means almost 15 000 cases have not been heard since the onset of the protest on July 31.

“The cases affected by this strike will have to be assigned new dates for hearing after the strike. That will definitely lead to delay in concluding the cases,” he says.

Meanwhile, prison warders’ hands are tied as they cannot receive suspects from police without a remand warrants from the courts.

In an interview, Malawi Prison Services spokesperson Smart Maliro said: “The number of suspects we get from courts to be put on remand has decreased, a clear indication that more suspects are being kept in police cells.

“Even those on remand and expected to appear in court are just being kept in prison.”

Associate Professor of Law Edge Kanyongolo says the suspects kept in police custody for more than 48 hours can sue government for violation of their constitutional rights under Section 42.

But suing does not mean that their lawsuits will succeed because government can defend its stand by possibly highlighting that it was impossible to have the courts formally charge the suspects due to the strike, argues the constitutional lawyer.

“Ultimately, it’s the courts that will determine [the cases]. Whenever there is a legal dispute, the courts have a final say,” he explains.

He reckons that although access to justice is being denied, striking is also an issue of human and labour rights.

“The situation is a conflict of rights within the same Constitution,” says Kanyongolo.

Any relief?

To lessen the crippling effects of the strike and speed up delivery of justice, Chief Justice Andrew Nyirenda has ordered all the magistrates in the country to conduct camp courts, and where possible, to be granting bails right in police cells. n