Overcrowding in prisons is a prevailing problem across many nations in Africa, with the practice of holding prisoners on remand compounding the issue. As a result, in some countries a good majority of the prison population is made up of those awaiting trial. Reports clearly show that prison conditions in Malawi are inhumane and fundamentally breach human rights. Overcrowding is such that if one prisoner turns over at night, all prisoners must turn over.
The poor of Malawi face physical, financial and language barriers to legal aid. Most live in remote rural areas, live on an income of $1 per day, and do not speak English – the language of the court. With no representation poor Malawians are often held in custody for months, or years, until a trial court acquits or sentences him/her. Dockets are regularly misplaced with prisoners becoming lost in the system, unsure of what they are in fact charged with or how long they will be there. The Open Society & UNDP Justice Initiative report, The Socio-economic Impact of Pretrial Detention, recognises that most pre-trial detainees pose no threat to society and should not be in detention. The consequences of the breadwinner of a household, or the primary carer of a family, being held on remand indefinitely pending trial can be dramatic in a country such as Ireland. In Malawi, the socio-economic consequences are profound.
Contributory factors within the justice system include poor record keeping, incorrect data, excessive case delay, poorly trained Magistrates, judicial decisions based on uninformed case management and failure on the part of criminal justice institutions and libraries to obtain up to date legislation.
Of further concern is the lack of qualified lawyers in the country. The system of legal aid is governed by a new Legal Aid Act which makes the Legal Aid Department (or Bureau under its new guise) an independent body, with the Ministry of Revenue holding the purse strings. The Act has not been nearly as effective or accessible as it should be. The Act allows the Ministry of Justice to hire private practitioners under the scheme but low rates of pay is one of the main obstacles to retaining lawyers. Malawi spends 1.5 cent per capita on legal aid – the UK spends $60 per capita. Mark Stapleton in his recent article Empowering the Poor to Access Criminal Justice – a Grass Roots Perspective notes that of the approximately 300 registered lawyers, only 120 are in private practice working mainly in the two major cities and “few outside the Legal Aid Department provide criminal representation” (page 8, note 43). During one needs assessment visit of this project it was learned first hand that by the second half of any given year there may be only one lawyer left working on criminal files within the Legal Aid system. That is one lawyer to represent a population of 14 million.
Malawi adopted the Malawi Growth and Development Strategy (MGDS) in 2006 as the main strategic policy document designed to assist Malawi in attaining its Millennium Development Goals (MDGs). Central to the MGDS is democratic governance and the development of a strong justice system, rule of law and human rights. Despite the goodwill of the Malawian government it is unable to afford to radically overhaul the elements of the criminal justice system that lead to such overcrowding. By reducing overcrowding, conditions for prisoners improve thus enhancing Malawi’s observance of the human rights of prisoners and remandees.
In tackling access to justice for the poor, IRLI has sought to implement mechanisms in partnership with local actors to remove obstacles to free legal aid in the short-term (such as capacity constraints and shortage of lawyers) in order to bring about direct change at beneficiary level, while developing systemic, sustainable interventions aimed at providing long-term benefits to the wider criminal justice sector.
The project has now placed three volunteer Programme Lawyers in Lilongwe to work with the Legal Aid Department and the Department of Public Prosecutions: Eithne Lynch, Jane O’Connell and Paul Bradfield BL.
In order to change the situation of illegal detainees, the first intervention IRLI and Legal Aid undertook was to reinforce their civil and political rights by granting access to justice and addressing the actual pre-trial detention. In August 2011 IRLI conducted a baseline study in Maula adult prison on the homicide pre-trial detainee population and length of time spent on remand. It was observed that the ten longest serving homicide detainees had spent an average 2,006 days (5 years 181 days) on remand with no trial in sight. Due to IRLI’s work with Legal Aid this has been reduced to an average of 1,417 days (3 years and 322 days), resulting in a reduction of 1 year and 224 days by the end of the pilot year. It is anticipated that this will drop to 1,022 days (2 years and 292 days) by September 2013, therefore effectively cut in half.
Through participatory planning with criminal justice sector actors, it was identified by IRLI that an emphasis on alternatives to incarceration, particularly promoting restorative justice practices, could bring about systemic changes for those entering the criminal justice system. It is operated without long term need for lawyers, and is triggered at first contact with the law. A diversion programme was devised within Lilongwe Main Police Station to bring access to justice to minor offenders allowing them to be reprimanded for their behaviour without exposing them to the risk of illegal detention. This has prevented offenders, who can be dealt with in a more effective manner, from overburdening the prisons and courts, allowing them to return to their lives without disproportionate detrimental effect to their livelihood and family. IRLI is now looking at implementing diversion throughout the Central Region.
IRLI also invests significantly in capacity building and human rights training for legal professionals, police and magistrates. In this regard, the project sends teams of Irish lawyers to Malawi on a rolling short term basis to supplement the work of the Programme Lawyers.
This project is part funded by Irish Aid