Malawi's criminal justice system is in need of urgent reform

The Guardian
While the attention of the government and the donor community is on 'cashgate', Malawians continue to be detained for long periods, largely unseen and unaided

Malawi ranks among the top 10 recipients of UK aid and, while the economy has grown in recent years, more than 50% of the population still live below the poverty line, according to the World Bank. The main focus of aid is poverty reduction through health and education projects. Projects aimed at improving access to justice for the ordinary citizen are few and far between.A local human rights NGO, the Centre for Human Rights, Education, Advice and Assistance (Chreaa), based in the commercial capital, Blantyre has been working since 2002 to protect the rights of marginalised prisoners subject to long pre-trial detention, the majority of whom will not have access to legal representation, through its paralegal advisory service.

Two years ago, I began volunteering with Chreaa, interviewing prisoners and drafting bail applications for homicide remandees who had been unlawfully imprisoned for many years, still waiting for a trial date. The applications I drafted were not heard by a judge for many months, as all 200 courts across Malawi were closed due to a strike by court staff over pay shortly after I arrived.

However, the police continued to arrest hundreds of people, bypassing the courts and detaining them without proper authority.

This wasn't limited to the strike period. In Chichiri prison, one of the largest in southern Malawi, a homicide remandee will spend on average three years in jail before the trial starts.

The trial itself can take two years to complete due to frequent adjournments, and even after it has concluded, remandees can expect to wait another 12 months before judgment is handed down. It is standard practice for people charged with less serious and non-violent offences to wait months in prison before being brought back to court, when they cannot afford the disproportionate bail bond. This unnecessary imprisonment of people who, under Malawi's own laws, should have the opportunity for bail, has led to severe overcrowding in prisons.

In addition to strikes and an under-resourced prison service, the justice system suffers from a chronic lack of state-funded representation. The majority of people arrested are unable to afford a private lawyer and, with only 22 legal aid lawyers in the entire country, more than 90% of people arrested will go through the court process without legal representation.

I have been working with Chreaa to address this issue by establishing an access to justice project , focusing on empowering arrested persons to represent themselves in applying for bail. It is unrealistic to suggest that every individual arrested in Malawi must be given access to a lawyer. However, it is realistic and achievable to ensure that every person has access to information about their basic legal rights.

We have produced a legal education booklet, with illustrations to show how and when to make a bail application. It also has a free phone number for a 24/7 advice line, managed by the paralegals at Chreaa. We work closely with local magistrates and the police to develop the dialogue between the accused and those working in the justice system. By informing people of their right to bail prior to their first court appearance, we hope to increase the amount of bail applications heard and granted, as well as reduce the large number of people held unecessarily in pre-trial detention across Malawi.

Progress hasn't been easy. We faced logistical challenges in distributing booklets to rural courts. We discovered we would need to print twice as many booklets because prisoners wanted to take them home to their families rather than return them to the court clerk.

But our work has received a positive response. Magistrates want to attend our bail discussion forums. We also received encouraging feedback after inviting former prisoners to speak to the magistrates about their experiences of the system. One magistrate said it had opened her eyes to how intimidating the process can be and said that in future she would visit the holding cells to speak to prisoners before they come into court.

In terms of tangible impact, data collected on project which was originally funded by Matrix Chambers Community Fund, but is now supported by DfID shows that in Blantyre and surrounding areas 54% of people were granted bail between August and October 2013, compared with just 8% in the year prior to its implementation.

But prisoners cannot expect swift access to justice just yet. They will have to wait as a mass trial of more than 100 people involved in a government corruption scandal, dubbed "cashgate", starts this February. This will require judges and new court spaces, placing a huge strain on a criminal justice system already at breaking point. While president Banda's efforts to "clean up the mess" and appease donors is today's news, the work of reforming Malawi's legal system and offering access to justice will continue largely unseen and unaided.