IRLI Magistrates’ Training Visit, May 2013

IMG_0256-001Last month I was invited to travel to Malawi as part of a training delegation to Malawi with Mr. Justice Roderick Murphy, who recently retired from the Irish High Court, and Anne-Marie Blaney, practising solicitor with the Irish Legal Aid Board. I was delighted to be part of the team and thought I would share my experience of the training and the great work being undertaken by the IRLI in this part of the world.

Before heading to the training workshop in Blantyre, we were given the opportunity to see some of IRLI’s work in practice within Maula adult prison and meet with some of their local partners and key stakeholders. What really struck the Irish delegation was the lack of legal representation and the lack of awareness of the prisoners of their rights, in particular the right to bail; a concept that is treated as privilege and not a right. After court, we were guided around the prison complex by some of the prisoners who told us how long they were on remand and on what charges. These stories then formed the basis of our lectures.

The workshop itself was delivered over three days to 40 judicial officers and focused on pre-trial detention, restorative justice and alternative dispute resolution.

Training was opened by High Court Justice Chifundo Kachale and Court of Appeal Justice Andrew Nyirenda who both noted the unique position of the judiciary as the “final preservers of the rule of law” and emphasising that “Malawi law allows for progressive restorative justice approaches but due to a lack of understanding, there has been a reluctance to implement them”.

I myself was charged with lecturing in fair trial norms such as the power of arrest, the 48 hour rule (that an accused be brought before a local court within 48 hours of arrest) and the right to bail. Huge emphasis was placed on the fact that should a person be held in unlawful detention the responsibility lies with the Magistrate to remedy this breach. During the Q&A, the Magistrates were engaging and spoke of the difficulty in imposing the 48 hour rule in a rural setting with resource issues e.g. where the police do not have access to transport.

Judge Murphy then delivered a lecture on sentencing and alternatives to prison sentences. He focused on the various stages of the sentencing process and on mitigating and aggravating factors. He drew on his experience on the bench, in particular sitting on the Court of Criminal Appeal. This all tied in very well with Eithne’s lecture on the groundbreaking Childcare Protection and Justice Act 2010, which has been in force for one year. Unfortunately, IRLI has found that this new Act is not being utilised in the Magistrates’ Court. The participants confirmed that they had heard of the new law but not one of the participants had received a copy of the Act. Eithne outlined the key provisions, in particular, the preliminary enquiry procedure and the establishment of Child Panels. The afternoon was spent conducting role plays based on the morning’s lectures.  We found that the participants really entered wholeheartedly into the spirit of our role-plays.

After an intensive first day, we indulged in some locusts in a local restaurant with Chief Justice Chambo, Justice Kachale and Judge Nyirenda. Chief Justice Chambo was extremely supportive of the work that IRLI is doing in Malawi and was concerned by the lack of CPD training opportunities for lawyers and the judiciary, particularly those working in a rural setting.

The second day of training on restorative justice was led by Paul Bradfield, who drew on his experience in Uganda. Paul outlined the tools that are available to the Judiciary to promote the use of restorative justice. As part of the workshop the participants viewed DVD’s from South Africa on the use of diversion and lessons which could be learned from their neighbouring jurisdiction.  Eithne delivered her lecture on the Mwai Wosinthika, youth diversion programme in Lilongwe. The group discussion focused on some of the challenges facing the Judiciary in the promotion of restorative justice and diversions and their experiences to date. Throughout the three days the level of class participation and the standard of questions was impressive.  Participants were also asked to divide into smaller groups and to act out role plays utilising diversion. We noted that the feedback from the sessions highlighted that magistrates recognised the pivotal role they play in keeping a diversion process on track and that a holistic approach is needed and that special care is required when dealing with children which placing the child’s welfare at the centre of a preliminary enquiry.

The final day focused on alternative dispute resolution and a family law mediator-client roleplay. Anne Marie Blaney , an accredited mediator with the Chartered Institute of Arbitrators and Mediators’ Institute Ireland began the day and explained and contrasted the ADR options. She described the ADR legislative landscape in Malawi which has a Courts (Mandatory Mediation) Act as well as Arbitration rules. Leading into the role play, she delivered a talk on the mediation process and the role of the mediator in managing the process. She also focused on the skills of a mediator, in particular, the benefits of reflective listening. Judge Murphy, who sat on the International Court of Arbitration in Paris, spoke on the use of ADR in the Malawian context.

After the session was closed, a local magistrate, gave us a guided tour of the newly constructed Blantyre magistrate and High Court complex. The court rooms were not dissimilar to an Irish courtroom and the cells were in a good condition. I was heartened to hear one of the magisitrates participating in the course tell me that he has visited the holdings cells on occasion in police stations. I understand from speaking those working within the Malawian criminal justice system that the holding conditions and the court set up in the Blantyre court complex are one of the best in Malawi.

Parting words…

A highlight of the week was when a little boy approached our vehicle begging for money on one of the main highways in Blantyre. Eithne, our driver, waved at the boy and said “I know that face…….Elias, is that you?” to which the boy replied and beamed “Yes Madam”. Eithne, then astutely asked “Are you going to school, Elias, are you living with your mother?” to which Elias replied “Yes, Madam, form four”. Unfortunately, we had to move on as the horns of the cars behind us were blaring. Eithne then explained that Elias was a vulnerable child she saw falling in with the wrong gang of child offenders at the market in Lilongwe. Elias had not committed any offences but because of his age (12 years old) was very vulnerable. Eithne and a local female police officer intervened and contacted Elias’s mother, who is a single mother living in Blantyre supporting four children. Elias was a 6-7 hour bus journey away in Lilongwe. Eithne and the police officer arranged for Elias to be re-united with his mother – he travelled by bus back to Blantyre with a bag of maize (the maize was to highlight to his mother that he wasn’t in trouble and that he wished to support his family). We were all moved by this story. It reinforced the whole purpose of the judicial training and restorative justice and diversion.

It was a wonderful experience to travel to Malawi with IRLI and in particular to get to know the magistrates.  Lastly, many thanks to all the participants, my fellow trainers, IRLI, Rachel Power and the Malawian judiciary.

Caroline O’Connor is an Advisory Counsel in the Office of the Attorney General, currently on secondment to the Department of Social Protection.