Malawi - Revision history

IBJadmin: /* Brought to court */

2018-05-09T13:34:14Z

Brought to court

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	A person arrested and detained in custody and who is not cautioned and released, released		A person arrested and detained in custody and who is not cautioned and released, released
	on police bail, or released on insufficient evidence, must be brought to a court having jurisdiction as soon as is practical but '''not later than 48 hour'''s after arrest, unless the 48 hours expires outside court hours, in which case the first day after the expiry of 48 hours,		on police bail, or released on insufficient evidence, must be brought to a court having jurisdiction as soon as is practical but '''not later than 48 hour'''s after arrest, unless the 48 hours expires outside court hours, in which case the first day after the expiry of 48 hours,
	failing which, the '''constitution says he ~~MUST~~''' be released (art.42.2b of the Malawi constitution).		failing which, the '''constitution says he must''' be released (art.42.2b of the Malawi constitution).

	A person arrested on Monday at 11am, who is not otherwise released within 48 hours, must		A person arrested on Monday at 11am, who is not otherwise released within 48 hours, must

IBJadmin: /* Sentenced within a reasonable time after conviction; */

2018-05-09T12:38:36Z

Sentenced within a reasonable time after conviction;

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	===Sentenced within a reasonable time after conviction;===		===Sentenced within a reasonable time after conviction;===

	~~Verdicts~~ and sentencing must be delivered without undue delay, they must be made public, and adequate notice of and reasons for them must be provided. The reasoning generally includes the essential findings, evidence, legal reasoning and conclusions. This is intended to ensure that the administration of justice is public and open to public scrutiny.		Art.42.2f(x) of the Malawi constitution established that verdicts and sentencing must be delivered without undue delay, they must be made public, and adequate notice of and reasons for them must be provided. The reasoning generally includes the essential findings, evidence, legal reasoning and conclusions. This is intended to ensure that the administration of justice is public and open to public scrutiny.

	=Rights in Prisons=		=Rights in Prisons=

IBJadmin: /* Tried in a language which he or she understands */

2018-05-09T12:37:59Z

Tried in a language which he or she understands

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	===Tried in a language which he or she understands===		===Tried in a language which he or she understands===
	Failing this, ~~has the proceedings has~~ the right to have the proceedings interpreted to ~~him or her~~, at the expense of the State, into a language which ~~he or she understands~~		Art.42.2 f (ix) establishes that the accused have the right to be tried in a language they understand. Failing this, they have the right to have the proceedings interpreted to them, at the expense of the State, into a language which they understand.

	===Sentenced within a reasonable time after conviction;===		===Sentenced within a reasonable time after conviction;===

IBJadmin: /* Provided with recourse by way of appeal or review to a higher court */

2018-05-09T12:36:42Z

Provided with recourse by way of appeal or review to a higher court

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	===Provided with recourse by way of appeal or review to a higher court===		===Provided with recourse by way of appeal or review to a higher court===

	~~Everyone~~ convicted of a criminal offence has the right to have the conviction and sentence		According to art.42.2f(viii), everyone convicted of a criminal offence has the right to have the conviction and sentence
	reviewed by a higher tribunal. The right to appeal is an essential element of a fair trial, aiming to		reviewed by a higher tribunal. The right to appeal is an essential element of a fair trial, aiming to ensure that a conviction resulting from prejudicial errors of law or fact, or breaches of the accused’s rights, does not become final.
	ensure that a conviction resulting from prejudicial errors of law or fact, or breaches of the accused’s
	rights, does not become final.

	===Tried in a language which he or she understands===		===Tried in a language which he or she understands===

IBJadmin: /* Non bis in idem */

2018-05-09T12:35:30Z

Non bis in idem

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	===''Non bis in idem''===		===''Non bis in idem''===

	not prosecuted again for a criminal act or omission of which he or she has previously		According to art.42.2f(vii) of the Malawi constitution, the accused have the right not to be prosecuted again for a criminal act or omission of which he or she has previously been convicted or acquitted; This prohibition against what is called ''''double jeopardy'''' applies to all criminal offences, regardless of their seriousness. The prohibition prevents new prosecutions, trials or punishments in the same jurisdiction. The prohibition does not, however, prevent the reopening of cases (including new trials) when there has been a miscarriage of justice, if the trial proceedings were unfair or if there is new or newly discovered evidence.
	been convicted or acquitted; This prohibition against what is called ''''double jeopardy'''' applies to all criminal offences, regardless
	of their seriousness. The prohibition prevents new prosecutions, trials or punishments in the same jurisdiction. The prohibition does not, however, prevent the reopening of cases (including new trials) when there has been a miscarriage of justice, if the trial proceedings were unfair or if there is new or newly discovered evidence.

	===Provided with recourse by way of appeal or review to a higher court===		===Provided with recourse by way of appeal or review to a higher court===

IBJadmin: /* sentenced within a reasonable time after conviction; */

2018-05-09T12:31:39Z

sentenced within a reasonable time after conviction;

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	Failing this, has the proceedings has the right to have the proceedings interpreted to him or her, at the expense of the State, into a language which he or she understands		Failing this, has the proceedings has the right to have the proceedings interpreted to him or her, at the expense of the State, into a language which he or she understands

	===~~sentenced~~ within a reasonable time after conviction;===		===Sentenced within a reasonable time after conviction;===

	Verdicts and sentencing must be delivered without undue delay, they must be made public, and adequate notice of and reasons for them must be provided. The reasoning generally includes the essential findings, evidence, legal reasoning and conclusions. This is intended to ensure that the administration of justice is public and open to public scrutiny.		Verdicts and sentencing must be delivered without undue delay, they must be made public, and adequate notice of and reasons for them must be provided. The reasoning generally includes the essential findings, evidence, legal reasoning and conclusions. This is intended to ensure that the administration of justice is public and open to public scrutiny.

IBJadmin: /* Non retroactivity of criminal rules */

2018-05-09T12:31:16Z

Non retroactivity of criminal rules

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	===Non retroactivity of criminal rules===		===Non retroactivity of criminal rules===

	~~The~~ accused in Malawi have the right not convicted of an offence in respect of any act or omission which was not an offence		Under art.42.2f(vi),the accused in Malawi have the right not convicted of an offence in respect of any act or omission which was not an offence
	at the time when the act was committed or omitted to be done, and not sentenced to a		at the time when the act was committed or omitted to be done, and not sentenced to a more severe punishment than that which was applicable when the offence was committed;
	more severe punishment than that which was applicable when the offence was
	committed;

	===''Non bis in idem''===		===''Non bis in idem''===

IBJadmin: /* Represented by a legal practitioner of his or her choice */

2018-05-09T12:29:56Z

Represented by a legal practitioner of his or her choice

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	===Represented by a legal practitioner of his or her choice===		===Represented by a legal practitioner of his or her choice===

	~~Where~~ it is required in the interests of justice, the accused has the right to be provided with legal representation (to ensure 'equality of		Under art.42.2f(v) of the Malawi constitution, where it is required in the interests of justice, the accused has the right to be provided with legal representation (to ensure 'equality of arms') at the expense of the State (at all stages of the proceedings), and '''to be informed of these rights;''' Every person who is arrested or detained must be informed of their right to have the assistance of legal counsel: either their lawyer of choice or an appointed lawyer. Notice of the right to legal counsel should be provided immediately upon arrest or detention, before any questioning and when an individual is charged.
	arms') at the expense of the State (at all stages of the proceedings), and '''to be informed of these rights;'''
	Every person who is arrested or detained must be informed of their right to have the assistance of legal counsel: either their lawyer of choice or an appointed lawyer. Notice of the right to legal counsel should be provided immediately upon arrest or detention, before any questioning and when
	an individual is charged.

	===Non retroactivity of criminal rules===		===Non retroactivity of criminal rules===

IBJadmin: /* Able to adduce and challenge evidence; */

2018-05-09T12:28:46Z

Able to adduce and challenge evidence;

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	===Able to adduce and challenge evidence;===		===Able to adduce and challenge evidence;===

	Any decision by the court must be based solely on evidence presented to it. Thus, an accused must		Under art.42.2 f (iv) of the Malawi constitution, the accused have the right to challenge any evidence brought before them. Any decision by the court must be based solely on evidence presented to it. Thus, an accused must be given adequate opportunity to prepare a case, present arguments and evidence and to challenge or respond to opposing arguments or evidence.
	be given adequate opportunity to prepare a case, present arguments and evidence and to challenge
	or respond to opposing arguments or evidence.

	The right to adequate facilities to prepare a defence requires that, in addition to information about the charges, the accused and his/her counsel should		The right to adequate facilities to prepare a defence requires that, in addition to information about the charges, the accused and his/her counsel should be granted timely access to relevant information. This information includes witness lists and information, documents and other evidence on which the prosecution intends to rely. It also includes information that might lead to the exoneration of the accused, affect the credibility of evidence presented by the prosecution, support a line of argument of the defence or otherwise help the accused prepare their case or mitigate a penalty. The right of the accused to call and to question witnesses is also a fundamental element of the right to a defence. These rights are an important aspect of the principle of “equality of arms”, and apply at all stages of the proceedings, including before trial, during trial and during appeals. They apply irrespective of the seriousness of the charges.
	be granted timely access to relevant information. This information includes witness lists and
	information, documents and other evidence on which the prosecution intends to rely. It also includes
	information that might lead to the exoneration of the accused, affect the credibility of evidence
	presented by the prosecution, support a line of argument of the defence or otherwise help the
	accused prepare their case or mitigate a penalty. The right of the accused to call and to question
	witnesses is also a fundamental element of the right to a defence.
	These rights are an important aspect of the principle of “equality of arms”, and apply at all stages of the proceedings, including
	before trial, during trial and during appeals. They apply irrespective of the seriousness of the
	charges.

	===Represented by a legal practitioner of his or her choice===		===Represented by a legal practitioner of his or her choice===

IBJadmin: /* Represented by a legal practitioner of his or her choice */

2018-05-09T12:25:50Z

Represented by a legal practitioner of his or her choice

← Older revision		Revision as of 14:25, 9 May 2018
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	===Represented by a legal practitioner of his or her choice===		===Represented by a legal practitioner of his or her choice===

	Where it is required in the interests of justice, the accused has the right to be provided with legal representation (to ensure 'equality of		Where it is required in the interests of justice, the accused has the right to be provided with legal representation (to ensure 'equality of
	arms') at the expense of the State (at all stages of the proceedings), and '''to be informed of these rights;'''		arms') at the expense of the State (at all stages of the proceedings), and '''to be informed of these rights;'''
	Every person who is arrested or detained must be informed of their right to have the assistance		Every person who is arrested or detained must be informed of their right to have the assistance of legal counsel: either their lawyer of choice or an appointed lawyer. Notice of the right to legal counsel should be provided immediately upon arrest or detention, before any questioning and when
	of legal counsel: either their lawyer of choice or an appointed lawyer. Notice of the right to legal
	counsel should be provided immediately upon arrest or detention, before any questioning and when
	an individual is charged.		an individual is charged.