Malawi Programme Update, September 2015
As we start into a new phase of the programme in Malawi, IRLI would like to acknowledge all of the volunteers and their achievements over the last 12 months. Jane O’Connell, Sarah Houlihan, Morgan Crowe, Mark Johnson, Orla Crowe and Sarah McGuckin all dedicated themselves to working with our programme partners and contributing to the efforts to strengthen Malawi’s Criminal Justice System. We would also like to take the opportunity to thank Jane O’Connell for everything she has achieved with and for IRLI during her 2 and a half years in Malawi. Jane’s is the face you may recognise specifically from the police trainings but as Programme Manger for the last 2 years she worked tirelessly on all elements of the programme and showed a commitment to the work that really must be commended. She will be greatly missed by our partners and the team in Malawi but we know that the programme is now in the very capable hands of Emma Weld-Moore who joins us from Ronan Daly Jermyn solicitors.
You can read Emma’s recent article here about her move to Malawi which was published in the Irish Examiner on Monday 7th September.
July 2015 Oireachtas Joint Committee on Foreign Affairs and Trade visit to Malawi: Chairman of JCFAT Pat Breen, Dan Neville, T.D. and Senator Jim Walsh together with the IRLI team and Irish Ambassador to Malawi Aine Hearns
Jane O’Connell with two of the participants from the Mwai Wosinthika Programme
Jane O’Connell at a Diversion Training Workshop at the Kawale Police Station
As we write this update, Directors Cillian Mac Domhnaill from the Law Society of Ireland is in Malawi visiting the programme. They will have the opportunity to attend graduation ceremony of the most recent ‘Mwai Wosinthika’ Child Diversion Programme, as well as traveling to attend a Community Sensitisation meeting in Chadza Traditional Authority. Mr. Patrick McGrath SC and retired High Court judge Mr. Roderick Murphy will join the Malawi team for a judicial training from 15-17 September.
Finally, IRLI is looking forward to welcoming Erin Gregg in September as the fifth team member in Malawi. Erin will be working with the Malawi Police Services and will be primarily responsible for managing and implementing IRLI’s Training Programme on the Proper Treatment of Child Suspects and the Concepts of Restorative Justice.
Community Sensitisations
IRLI Programme Officer Mark Johnson organised a community sensitisation meeting in July at Senior Chief Kalumbu’s headquarters, where senior members of all of the stakeholders in the Malawian criminal justice system were invited to speak. Senior Chief Kalumbu is one of only three senior chiefs in Lilongwe. The Senior Chief has approximately 65 Group Village Headmen beneath him, who all attended the meeting.
The system of traditional leaders remains strong in Malawi and these people hold positions of influence in their communities. This was the second such meeting which IRLI had organised at a Senior Chief’s headquarters. High Court Judge Mtalimanja was the keynote speaker at the meeting and there were also senior members from the Malawi Police Service, the Ministry of Social Welfare, the Legal Aid Bureau, the Community Service Directorate and PASI paralegal service.
Community Sensitisation Meeting in Tsobango Traditional Authority
The aim of these meetings is that the Group Village Headmen will return to their communities and disseminate the information provided. The feedback from these meetings has been extremely positive. Many of the Group Village Headmen did not know organisations such as the Legal Aid Bureau provided free legal aid. There was also very limited knowledge on the rights of the accused such as the right to bail. Mob justice is very common in Malawi and a major factor in this is the lack of knowledge and understanding of the criminal justice system. IRLI Programme Officer Mark Johnson coordinates the organisation of these community sensitisation meetings and together also with Jane O’Connell in the last year they organised 5 such meetings. IRLI hopes that by providing a forum where this lack of knowledge can be addressed, we are taking the first step in changing the communities’ attitudes towards accused persons and that this will lead to a decrease in the instances of mob justice.
Achievements in Legal Aid Bureau (LAB)
One of the major challenges in the LAB is the proper recording of cases. It is often the situation that new cases are taken on but they are not recorded and too often are forgotten about. There is a very basic recording system at present which records very minimal information.
IRLI, working alongside the LAB Directors, identified the need for a more substantial case management system and funded the printing of a new criminal registry book which records a lot more information including the age, gender and court file number of the applicant. This is information which was sorely needed but was very often missing in the past. A corresponding excel spreadsheet was also developed in the hope that this will allow for more accurate recording in both hard and soft copies.
IRLI’s LAB Programme Lawyer, Sarah McGuckin, in conjunction with the LAB Directors recently also provided training for all advocates and paralegals on the criminal registry book and case management in general. It is hoped that this will go a long way to rectifying some of the challenges faced by the LAB when it comes to dealing with cases as effectively and efficiently as possible.
Another exciting development within the LAB is in the area of awaiting judgment cases. Commonly, post-trial, a prisoner can be waiting several months, and indeed years for the High Court judge to deliver judgment, and the prisoner, still a remandee until judgment is delivered, is left in limbo pending delivery of judgment. Sarah McGuckin has been assisting prisoners tried for homicide, who have been awaiting judgment for unreasonable periods following the hearing of their trials, in some cases in excess of 5 years. It seems that this work is starting to pay off with a number of judgments being delivered over the past month. It is hoped that this momentum will continue and that the backlog of those cases awaiting judgment will continue to decrease.
DPP
IRLI Programme Lawyer Orla Crowe has been seconded to the Office of the DPP since she joined the team in December 2014. This work has also involved identifying and developing training programmes for the Malawi Judiciary. “As part of my role supporting the Malawi Judiciary whilst working with IRLI in Malawi over the past 9 months, I have been struck by the hard work and dedication of High Court judges and magistrates alike. This is in the face of a constant lack of resources, lack of access to material and an extremely heavy workload.”
One of the most significant challenges faced by the judiciary is the confirmation procedure, which is essentially a process whereby High Court judges can review the sentences imposed by magistrates. This process is extremely important, given that approximately 90% of cases in Malawi are originally dealt with by lay magistrates. Currently, there is a huge backlog of these cases. Up to January 2015, a total of 1,991 are waiting to be confirmed. There are a number of reasons for this delay, including that there is no provision in judges’ schedules for specifically dealing with confirmation cases and that the magistrates do not have financial resources to deliver the files to the High Court. This failure to confirm cases leads in many cases to stark injustices, as offenders are potentially serving sentences which are much too harsh or much too lenient. Indeed, in one instance observed by IRLI, it was decided by the judge that the accused person should never have been found guilty in the first place. In many cases, the offender has already served his sentence by the time his/her cases finally reaches the High Court for confirmation.
IRLI is trying to take some action in order to reduce this number. Recently, Orla Crowe organised a workshop in conjunction with the Malawi Judiciary (with funding from the EU Democratic Governance Programme) in order to bring all interested parties together and discuss the difficulties with the current confirmation procedure. Many proposals for change were made at the workshop. As a first step towards this process, it was agreed that a Committee of Experts would be established for the purposes of developing Confirmation Guidelines and Orla Crowe was appointed as a member of this group. It is intended that the Guidelines will assist judges, magistrates and clerical staff to develop a more structured and efficient system to ensure cases are confirmed in a more timely fashion. Terms of Reference are currently being drafted and shall thereafter be sent to the Honourable Chief Justice for approval.
Confirmation Guidelines Workshop
DPP Programme Lawyer Orla Crowe
Orla is also currently organising (again in conjunction with the Judiciary and with funding from EU DGP) training for magistrates on sentencing and jurisdiction. It is intended that some of the more concerning issues regarding the confirmation procedure will be highlighted during this training. As part of this programme Mr. Patrick McGrath SC and retired High Court judge Mr. Roderick Murphy are traveling as guest speakers. Mr. Patrick McGrath SC will commence the presentations at the workshop by dealing with some of the core issues relating to the right to a fair trial, such the presumption of innocence, the right to remain silent etc. Mr Roderick Murphy will present on judgment writing and legal reasoning, bringing some best practices from his many years writing judgments as a High Court judge in Ireland.
Mwai Wosinthika – Child Diversion Programme
IRLI is currently completing the second ‘Mwai Wosinthika’ Child Diversion Programme of 2015 with the graduation ceremony being held on 9th September. 13 children attended the first session of the second programme, however the number of children participating then increased to 18. The child diversion programme is now operated in partnership with the Ministry of Gender, Children, Disability and Social Welfare (“Ministry”) who provide officers from the Department of Social Welfare who are trained in diversion and child justice issues to facilitate the sessions, and in partnership with Chisomo Children’s Club (“Chisomo”) who provide the venue and assist in the facilitation of the programme.
The Venue for Mwai Wosinthika has proved a welcome introduction to the programme. Chisomo have been very accommodating and their staff are trained in diversion. Some of their staff regularly visit police stations in Lilongwe District, and many of the children who have been diverted from the police cells onto the programme were assisted by Chisomo. Chisomo also provide accommodation to children who otherwise would have nowhere to go. This can be a significant factor on whether the MPS agree to diversion.
All children diverted onto the programme must be assessed, and deemed eligible for inclusion onto the programme. All referring bodies, i.e. MPS and CVSUs, are provided with referral forms wherein information relating to the child must be provided including details of the alleged offence committed. The children themselves must express on the form that they are aware of their actions, admit to their wrongdoing and consent to being enrolled onto the programme. The completed forms are given to the Ministry facilitators who conduct home visits prior to the commencement of the programme, and complete eligibility assessment forms following the home visits.
