Pre-Trial Detention and Legal Aid in Malawi

Later this week I will be leaving these fair shores to spend a year in Malawi working on an access to justice and prison reform project with Irish Rule of Law International, a non-profit rule of law charity established by the Law Society and Bar Council. Myself and my two colleagues, barrister Ruth Dowling and solicitor Carolann Minnock, will be based in Lilongwe and partnering with the Ministry of Justice Legal Aid Department, the Department of Public Prosecutions and the Paralegal Advisory Service (PASI). The project is focusing on increased access to Legal Aid for those within the Criminal Justice system, with particular emphasis on pre-trial prisoners. On any one day there might not be a qualified legal person in a criminal court, with a policeman acting for the Prosecution, the defendant unrepresented and Magistrate might not be in any way qualified legally. Our project will ensure the rule of law is upheld in the Criminal Courts. It is believed that increasing access to legal services will ensure a greater number of prisoners are released on bail, while also decreasing the time spent by those on remand. Crucially, we are hoping to ensure that prisoners are monitored so cases are processed quickly, fewer become lost in the system and that legal representation will also result in a decrease of those wrongly convicted.

Defendants in Malawi face physical, financial and language barriers to legal representation. Most live in remote rural areas on an income of approximately $1 per day, and do not speak English – the language of the court. With no representation defendants are often held in custody for years, until a trial court acquits or sentences them, often far longer than the maximum sentence allowed for the offences they are alleged to have committed. 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. One of the other concerns is the lack of qualified lawyers in the country. Adam Stapleton in his working paper 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”. In addition, by the second half of the year there can be less than 3 lawyers working in the Legal Aid Department due to lawyers moving on to private practice. A new Legal Aid Act, which allows the Ministry of Justice to hire private practitioners under the scheme, governs the system of legal aid but low rates of pay are one of the main obstacles to retaining lawyers. To give you an idea of the finance available to the Legal Aid Department, Malawi spends approximately 0.015 cent per capita on legal aid whereas the Legal Services Commission of England and Wales estimated that the legal aid costs of England and Wales to be €25 per capita for the year 2008-2009.

The practices of excessive detention and the holding of prisoners on remand have a broad socio-economic impact in that men and women are held in prison, often for many years, without being brought before a court. The consequences of the breadwinner of a household, or the primary carer of a family, being held on remand indefinitely pending trial can be drastic. Our project hopes to assist PASI and the DPP in processing cases through the implementation of a case management system, assistance in clearing the backlog of cases, improved bail application skills and training on best practice in line with the Lilongwe Declaration on Accessing Legal Aid in the Criminal Justice System in Africa.

Personally I am particularly excited to work with the Paralegal Advisory Service, which was established in 2000 by Clifford Msiska to provide legal aid to impoverished people using non-lawyers on the “front line” of the Criminal Justice system in line with the recommendations of the Lilongwe Declaration. The PASI project trains paralegals to carry out this work and is highly respected by the Malawian Government, Police and Prison Authorities. PASI is significant not simply because its model has been adapted across Africa but because it represents a low-cost method of providing effective legal advice and assistance for ordinary people in conflict with criminal law. To give you an example of how effective the project has been, their clinics conducted in prisons between November 2002 and June 2007 empowered approximately 150,000 prisoners to represent themselves in court and access the justice system. Its impact has been to reduce the overall remand population from 40–45% of the overall population to a current figure of approximately 20%.

PASI are however currently experiencing funding difficulties due to the withdrawal of financial support to Malawi by the United Kingdom. Relations between the UK and Malawi have broken down since April of this year when President Bingu wa Mutharika expelled the British High Commissioner from the country when a wikileaks cable was leaked that referred to him as “autocratic and intolerant of criticism”. It is not yet clear how the UK’s aid freeze to the country could compromise the achievements of existing DfID supported programmes such as PASI. In addition the political situation remains turbulent due to concerns about accountability, suppression of freedom of expression, poverty, fuel shortages and the curtailment of human rights. Protests broke out in Blantyre, Lilongwe and Mzuzu on the 20th July in which at least 18 people died and at least 200 were arrested in the aftermath putting further pressure on the already overcrowded prison system. Such protest, almost unheard of in this small Africa nation echoes the Arab spring uprisings, which have engulfed the Middle East this year and indicates a desire for change. Our project aims to ensure that the rule of law is upheld. Alternative sentencing practices will be used to stop putting pressure on the prison system. Lengthy remands will decrease by developing the practices of granting bail and by speeding up access to the Courts. All these factors contribute to improving Access to Justice for Malawians.

If you would like more information about the project you can access the website at www.irishruleoflawmalawi.com

By Sonya Donnelly, barrister-at-law and law tutor, who will be working as a programme lawyer on pre-trial detention with the Department of Justice of Malawi in the Legal Aid Department. Sonya’s book (with Sarah Carew) The Devil’s Handbook was recently published by Round Hall.  This is an Irish Aid funded project.

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