Prosecution challenges and success

Through its work with the Office of the Director of Public Prosecutions (DPP) and Lilongwe Police Stations IRLI in Malawi has had a number successful results in securing the release of prisoners.

In December 2009, a boy aged 16 was arrested for murder. He was moved from custody to Kachere Juvenile Prison in January 2010 and he remained there for years. The only thing linking the boy to the murder was that he was found selling the deceased’s items. In light of the lack of evidence, in August 2010, the DPP informed the court that it would file a certificate of discontinuance. Section 77 of the Criminal Procedure and Evidence Code provides that the Director of Public Prosecutions has the power to discontinue a case at any stage of proceedings before judgement. On filing this certificate the accused should immediately be released from custody and all charges should be dropped. Unfortunately, in this case the certificate was never filed. When IRLI became aware of the case in October 2010, it liaised with the prison officers, Venture Trust, courts and the DPP to resolve the matter. This combined effort resulted in the release of the boy from prison last week.

IRLI also recently assisted with the release of a non-national boy aged 16 from Kachere Juvenile Prison. He was brought before court in July 2011 for theft of a mobile phone. On hearing the case the court ruled that he should be unconditionally discharged. Unfortunately, the social welfare report incorrectly identified the boy as a refugee and the court ordered that he be returned to the nearby Dzelaka Refugee Camp. Instead, due to lack of transport, the boy was returned to Kachere Juvenile Prison and remained there for over five months. By working together IRLI and actors of the criminal justice sector confirmed that the boy was not a refugee and secured his release from prison.

Another young boy was being held in Kachere Juvenile Prison since 2009 under the Children and Vulnerable Young Persons Act 2008 Section 16. Essentially, the boy was ordered to remain in prison until there was a positive change in his behaviour. Despite reports documenting this positive change in early 2010, the boy spent two years in prison. Prison authorities and social welfare officers agreed that his behaviour had improved and that he should be released. However, it was unclear who had the authority to release the boy. Thanks to the support of juvenile magistrates and the DPP the boy has now been released.

The above cases represent some of the challenges that IRLI and its criminal justice partners are working to address. While such abuses of human rights are unacceptable by taking a combined approach with the parties in the criminal justice sector and working together to find a solution, it is hoped that such cases are less likely to occur in the future.

By Carolann Minnock, Prosecution Programme Lawyer with the Malawi project

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