Malawi

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Contents

Introduction

Quick summary of the context

Malawi is a democratic, presidential representative republic and gained independence from the United Kingdom in 1964. Malawi has been a multi-party democracy system since 1991. The Government represents the Executive power, whereas Legislative power is shared between the president (Arthur Peter Mutharika since 2014) and mainly the National Assembly the Judiciary is independent from executive and legislative powers and consists of a magisterial lower court, a High Court, and a Supreme Court of Appeal. Malawi has 28 districts grouped in 3 main regions which are the Central Region (9 districts), Northern Region (6 districts) and Southern Region (13 districts) Malawi’s capital Lilongwe is situated in the Central Region[1].

Religions, languages and minorities

Christian Protestants make up the majority religion in Malawi (44% of the entire population) with Sunni Islam as the second largest religion in Malawi. There is a sizeable Roman Catholic population (18% of Malawian population) as well as other Christian faiths and denominations while more or less 6% of the Malawian population still hold on to traditional African beliefs like the belief in a supreme being, spirits, use of magic, various folk beliefs and traditional witchcraft.

English is the official language of Malawi, with the second national language being Chichewa. There are a number of other spoken languages and dialects with the main ones categorized as Chiyao, Chinyanja, Chinsena, Chilomwe, Chitumbuka.

The Chewa and Lomwe constitute the largest ethnic groups in Malawi. Other smaller ethnic groups are the Nyanja (6% of the country’s population). Nyasa Tonga is an ethnic group of Bantus speaking people living in Nkhata Bay, Northern Malawi (2% of Malawian population) with NdondeHamba being one of the least populated ethnic groups (just above 1% of the population).

Type of system

Malawi has an English common law-based judicial system. It consists of 3 types of courts, the highest one is called a Supreme Court of Appeal, along with the High Court as stated in the Malawian Constitution. At a lower level come the magisterial lower courts (Subordinate Courts)[2].

Legal aid situation in the country

In 2010 Malawi passed a Legal Aid Act to support eligible and deserving persons who can’t afford the cost of private legal representation.[3]However there were complaints about the Legal Aid Bureau which is underfunded and having only nine lawyers.

The bureau could not provide timely legal assistance to the indigent, and sometimes none at all[4].

Sources of Defendant’s Rights:

Malawi’s constitution (adopted in 1994) established many laws to protect the rights of a sued or accused person in a court of law. It’s the source for numerous other laws in Malawi such as the Malawi Penal Code (CAP 7 :01), Criminal Procedure and Evidence Code (Cap. 8:01) and Prisons Act (CAP 9 :02).

Within these laws the rights of a defendant are well protected, for example Malawi’s constitution has a chapter entitled Human Rights which sets out certain parameters of humanitarian treatment during an arrest or detention as well as the rights of a fair trial[5].

International Sources of Defendant’s Rights

In as far as Malawi has ratified the Optional Protocols for UN Human Rights Conventions or has accepted the competence of the corresponding UN Treaty Bodies the inhabitants of Malawi and their representatives are able to invoke their human rights through these bodies. All inhabitants of Malawi may turn to the UN Human Rights Committee through procedure 1503, to the Special Rapporteurs for violations of specific human rights or to ECOSOC for women's rights violations.

Malawi has ratified the Convention on the Rights of the Child, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention Against Torture (CAT) as well as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

Pre-Trial Procedures

Arrest

This section covers arrest. It details what the Criminal Procedure and Evidence Code (CPEC) says about when an arrest can happen and how an arrest can happen. It also sets out the special laws around children and arrest which are enshrined in the Child Care, Protection and Justice Act (CCPJA).

Someone can be arrested when they are committing or are suspected of committing an offence. Arrests must happen within the law and police are not allowed to just arrest someone when they feel like it. The purpose of arrest is to bring the person to court. Legal arrest - some offences need a warrant for arrest, others do not (Sections 28, 29, 31 and 33 CPEC)

Arrests without a warrant

The police may arrest someone without a warrant if the offence is “arrestable”, such as common offences like theft and house-breaking. Offences against the republic, riot, aiding escape from custody, murder, rape, indecent assault, abduction, being drunk, insulting a religion, wounding, kidnapping and numerous others are categorised as arrestable offences.

People can be arrested if the police have a reasonable suspicion they have committed one of these arrestable offences. “Reasonable suspicion” means more than just a feeling and must be based on facts. For example, a person running away from the scene of a robbery with a stolen item may be arrested on reasonable suspicion of robbery.

It is not only the police who can arrest people. A private person may also arrest someone without a warrant; but they must also have reasonable suspicion.

Arrests with a warrant

Some offences do need a warrant for arrest. This means a warrant for arrest must be issued by a court, before the police can arrest the person named in the warrant. Many of the offences which need a warrant are those which can only be committed by officials, such as “abuse of office”. But offences such as aiding mutiny, inducing desertion, sedition, pimping, bigamy, child desertion, various gambling offences, common assault, being insulting, libel, counterfeiting, etcetera also need a warrant for arrest.

Other circumstances where someone can be arrested:

At the moment, the CPEC says a person may also be arrested if they:

• Disturb the peace in the presence of the police officer,

• Lie or loiter on a highway, yard or place at night so they are suspected on reasonable grounds of being involved in a crime,

• Are about to commit an arrestable offence,

• Are apparently hiding with a view to committing an offence in a policing area,

• Are an habitual offender,

• Are accused of a non-arrestable offence but refuse to give their name and address or lie about these. Some of these “other circumstances” could go against people’s rights under the Malawi Constitution as well as international human rights law. However, they have not yet been challenged in court and remain part of Malawi law.

Obligations of an arresting agency:

Making an arrest (Sections 20 and 20A CPEC) The purpose of arrest is to bring a person to court, so that the court can decide if the case must go to trial. An arrest requires that the person being arrested is informed accordingly. If the person does not surrender and resists arrest, reasonable force can be used to make the arrest. But no force greater than reasonable or necessary is justified in an arrest.

The person arrested must be informed of their right to remain silent and of the consequences of making a statement. The right to remain silent means the person arrested does not have to say anything. They do not have to explain or give any information (this is explained further below). The police may not threaten them to try and get them to speak. Nor may they inflict pain to get them to speak. This would be torture. If an arrested person chooses to speak, then what they say can be used as evidence against them. For example, if an accused makes a statement on arrest which puts him or her at the scene of the crime, then that statement is evidence that he or she was indeed at the scene of the crime.

An arrested person must be brought to court within 48 hours is so that the court can decide whether the person should be released or remain in detention on remand while the case against them is investigated. This is particularly important around serious offences. The court must also assess the health of the arrested person and check whether torture or ill-treatment may have taken place. Many prosecutors think they must be ready to prosecute the person when they first bring them to court. This is not correct and it causes prosecutors to delay bringing people to court. It also happens that arrested people are asked to plead (see below) when they first appear in court, in under 48 hours after arrest. This is also not correct. The accused should only be asked to plead when the prosecution is ready to proceed with the trial and able to give the accused all the particulars of the charge.

Ultimately, it is up to the prosecution to prove the case beyond reasonable doubt. If the prosecution does not have enough evidence to do so, then the accused cannot be found guilty. Note: The CPEC says not informing the person of the right to remain silent does not make the arrest unlawful. But, as this right is now a constitutional right, this could be challenged in court.

Arrest and children:

Young children are not to be arrested (Section 93 CCPJA) A child who seems to be younger than 10 years old must not be arrested. Children under 10 must not be arrested. Instead they must be referred to a probation officer, or taken to a safety home, or the prosecutor handling the matter must release the child. Paralegals may be able to help find parents.

Older children to be arrested as a last resort (Section 89 and 90 CCPJA) International law and the CCPJA says arrest and imprisonment of children is a measure of last resort. The CCPJA defines children as younger than 16.

Handcuffs and violence cannot be used on children. Children may not be detained with adults who are not their relatives. As far as possible, a relative or responsible adult must be informed immediately and accompany the child through the process.

Police

The Malawi Police Service is constituted by an Act of Parliament and is an independent organ of the Executive. Its main stated purpose is to provide for the protection of public safety and the rights of persons in Malawi (article 13 section 153 of the Malawian Constitution).

Complaints

A complaint under subsection (1)(a) of the Malawian Criminal Procedure and Evidence Code may be made by any person who believes, on reasonable cause, that an offense has been committed[8]. The complaint can be made before a magistrate, by a public prosecutor or by a police officer signing and presenting a formal charge to a magistrate[6].

Stops and Frisks

According to Section (189) of the Malawian Penal Code, a police officer or Chief (or any person acting under the direction of a police officer or Chief) may arrest without warrant any person whom he has reasonable cause to believe to be committing or to have committed an offense under section 124 or 125.

Pre-trial Detention

The Malawian Constitution states that every person who is detained in Malawi shall have the right to be informed of the reason for his or her detention promptly in a language he or she understands.

Such persons are to be held under conditions consistent with human dignity and have the right to consult confidentially with a legal practitioner of his or her choice and to have visits from relatives.

The same section of the constitution determines that a detained person shall have the right to be released if such detention is unlawful[7].

Search

Any person acting under a warrant of arrest (or any police officer) has the right and should be allowed by everyone to search any place he believes that a person to be arrested has entered into or is within this place[8]. Whenever it is necessary to search a person, the search shall be made by another person of the same sex with strict regard to decency[9].

Interrogation and the Right Against Self-Incrimination

After an arrest, the arrested person shall promptly be informed, in a language which he or she understands, and that she or he has the right to remain silent and to be warned of the consequences of making any statement[10]. Additionally, the arrested person shall not be compelled to make a confession or admission which could be used in evidence against him or her[11].

Right to Counsel

According to article (1)(c) of section 42 of Malawi’s Constitution, every person who is detained, including every sentenced prisoner, shall have the right to consult confidentially with a legal practitioner of his or her choice, to be informed of this right promptly and, where the interests of justice so require, to be provided with the services of a legal practitioner by the State.

The rights of the accused at all time

Criminal Law System

Double Jeopardy

Every person who is detained, including every sentenced prisoner, shall have the right not be prosecuted again for a criminal act or omission for which he or she has previously been convicted or acquitted, save upon the order of a superior court in the course of an appeal or review proceedings relating to that conviction or acquittal[12]

Presumption of Innocence

Article (1)(f)(iii) of section 42 of the Malawian Constitution states that an accused person shall have the right to be presumed innocent during plea proceedings or a trial.

Procedure with witnesses

The subordinate court shall, on committing the accused for trial, inform him of his right to require the attendance at the trial of any such witness[13]. The court shall take the evidence of any witnesses called by the accused in like manner as in the case of witnesses for the prosecution[14]. However, the number of witnesses shall not be under limitation.

Capital Punishment

According to the Malawian Penal Code there are 7 crimes which may carry the death sentence following conviction (on judicial discretion). These are: Murder, rape, robbery, burglary and housebreaking, treason and certain military offences.For humanitarian reasons there are certain exclusions from the death penalty following conviction in favor of individuals under the age of 18 at the time of the crime, pregnant women and mentally ill persons.

Executions are carried out by hanging in the prison in which the prisoner is detained, however, the death penalty’s status in the Republic of Malawi is "abolitionist de facto" and the last execution took place in the year of 1992[15].

ExPost Facto Punishment

Article (2)(f) section 45 of the Malawian Constitution prohibits the retrospective criminalization and the retrospective imposition of greater penalties for criminal acts.

Fair trial Rights:

Fair trial rights are determined under a specific cluster referring to fair trial rights within art.42 of the Malawi constitution. In the determination of any criminal charge against a person, or of a person’s rights and obligations, everyone in Malawi is entitled to a fair and public hearing by a legally constituted competent, independent and impartial judicial body.

Under Malawi's constitution (art.42) the process will only be deemed fair if the accused person is:

brought to public trial before an independent and impartial (and non-discriminatory, as required under section 20 of the constitution) court of law within a reasonable time after having been charged;

Brought to court

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 hours 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).

A person arrested on Monday at 11am, who is not otherwise released within 48 hours, must be brought before court before Wednesday at 11am. A person arrested on Thursday night, if it is practical, must be brought before court on Friday; if Friday is not practical, then they must be brought to court on Monday morning, unless the person is otherwise released. The constitution does not distinguish between offences. Therefore even homicide arrests must be brought to court within 48 hours.

Public trial

According to art. 42.2 f(i) from the Malawi constitution:

▪ All the necessary information about the venues and sittings of courts shall be made available to the public by the judiciary;

▪ Adequate facilities shall be provided for attendance by interested members of the public;

▪ No limitations shall be placed by the court on the category of people allowed to attend its hearings where the merits of a case are being examined; ▪ Representatives of the media shall be entitled to be present at and report on judicial ▪ proceedings except that a judge may restrict or limit the use of cameras during the hearings;

▪ The public and the media may not be excluded from hearings before courts except if it is determined to be (i) in the interest of justice for the protection of children, witnesses or theidentity of victims of sexual violence (ii) for reasons of public order or national security in a society that respects human rights and the rule of law.

▪ Courts may take steps or order measures to be taken to protect the identity and dignity of victims of sexual violence, and the identity of witnesses and complainants who may be put at risk by reason of their participation in judicial proceedings.

▪ Courts may take steps to protect the identity of accused persons or witnesses where it is in the best interest of a child.

▪ The use of anonymous witnesses, where the judge and the defence is unaware of the witness’ identity at trial, is prohibited.

Reasonable time:

Case duration in the subordinate court(Section 261 CPEC):

Any case which can be tried in the subordinate court must have started within 12 months of the complaint arising, and must be completed within 12 months of the trial commencing. The maximum amount of time between the complaint arising and completion of the case is two years.

Case duration in the High Court (Section 302A CPEC)

Any case which can be tried in the High Court must start within 12 months of the complaint, and must be completed within 12 months of the trial starting. The exception is an offence which is punishable by three or more years imprisonment, or where the accused has absconded (run away), or if the cause of delay is not due to the prosecution.

An accused has the right to challenge continued detention, even on serious offences, when they have not been tried for a long time.

Informed with sufficient particularity of the charge;

When an individual is formally charged, he/she must be given detailed information about the law under which they are charged and the alleged material facts which form the basis of the accusation. The information must be sufficient and detailed enough to allow preparation of the defence.

Presumed innocent

According to art.42.2c of the Malawi constitution:

Not to be a compellable witness against himself or herself, and able, if he or she so wishes, to remain silent during plea proceedings or trial, and not to testify during trial;

The right to be presumed innocent

Under art.42.2 f(iii) of the Malawi constitution the accused has the rights to be presumed and treated as innocent, unless and until they are convicted according to law in the course of a fair trial. The treatment of pre-trial detainees and their detention conditions must be consistent with the presumption of innocence. The right not to be compelled to testify against oneself or confess guilt and the related right to remain silent are rooted in the presumption of innocence (anyone arrested for a crime should immediately be informed of their rights not to incriminate themselves or confess guilt, including their right to remain silent during questioning).

They are also safeguards aimed at protecting the accused from torture or other abuse during questioning.

The presumption of innocence is undermined if, for example, the accused is held in a cage within the courtroom, or required to appear in court wearing handcuffs, shackles or uniforms worn by convicted prisoners, as these would suggest guilt.

The authorities, including prosecutors, police and government officials, must not make statements indicating an opinion about the guilt of an accused before the conclusion of criminal proceedings, or following an acquittal, and they have a duty to discourage the media from undermining the fairness of a criminal trial by prejudging or influencing its outcome.

The requirement that the accused be presumed innocent means that the burden of proving the charge rests on the prosecution. A court may not convict unless guilt has been proved beyond reasonable doubt. If there is reasonable doubt, the accused must be acquitted.

Able to adduce and challenge evidence;

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.

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.

Represented by a legal practitioner of his or her choice

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.

Non retroactivity of criminal rules

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 more severe punishment than that which was applicable when the offence was committed;

Non bis in idem

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.

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

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 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

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;

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

Conditions of confinement

The Malawian Constitution protects the rights of every person who is detained, including every sentenced prisoner, who shall have the right to be held under conditions consistent with human dignity, which shall include at least the provisions of writing material, adequate nutrition and medical treatment at the expense of State.

Such persons have the right to be given the means and opportunity to communicate with, and be visited by, his or her spouse, partner, next-of-kin, relative, religious counselor and a medical practitioner of his or her choice[16].

It has been reported that the conditions stated above are often not respected in reality. For example on September 6th 2016 the Malawi Prison Services reported the total prison population was 14 018, more than double prison capacity of 7000[17].

Immigrant detention

According to the Malawian Immigration Chapter 15:03, any person suspected of being a prohibited immigrant may be detained by an immigration officer for such reasonable period, not exceeding fourteen days, as may be required for the purpose of making enquiries as to such person’s identity or antecedents, however, he or she shall be detained in the nearest convenient prison or goal.

Mental health care

According to article (18)(c) part III of Malawi’s Prison Act, an officer in charge shall notify the medical officer of the name of any prisoner who appear to the officer in charge to require treatment for any physical or mental ailment.

Restrictions of rights

In exercising the powers conferred upon him by subsection (1) of Malawi’s Prison Act, the Minister may restrict the application of any regulation to one or more prisons and may apply differing regulation; in respect of different prisons or classes of prisoners determined by him[18].

Women’s right in prison

No sentence of corporal punishment for a prison offense shall be awarded in terms of section 91 or 92 to a female prisoner article 97 part XVI, Malawi’s Prison Act.

Quick Facts

Prison Statistics (September 2016)

There are 14 018 prisoners in Republic of Malawi, the total population in Malawi is 17.84 million, every 79 per 100 000 persons in Malawi are in prison. Pre-trial detainees and remand prisoners make about 16.2% of the total prisoners in Malawi. Females make 1.1% percent of the prison population in Malawi.

References

This page benefited from a valuable input from Open Trial [19]
  1. Wikipedia, available at :https://en.wikipedia.org/wiki/Malawi
  2. http://www.nyulawglobal.org/globalex/Malawi.html
  3. Malawi’s Sustainable Development Networking Programme, available at :http://www.sdnp.org.mw/ruleoflaw/justice/legaldepts.html
  4. 5 US Department of State : Malawi’s Human Rights Report 2016, available at : https://www.state.gov/documents/organization/265486.pdf
  5. Section 42 Malawian Constitution.
  6. 9 Article 1 (c) section 83, Malawian Criminal Procedure and Evidence Code
  7. Article 1 (a), (b), (c), (d), (f) Section 42, Malawian Constitution
  8. Article 1 section 21, Malawian Criminal Procedure and Evidence Code.
  9. Article 1 and 2 section 26, Malawian Criminal Procedure and Evidence Code
  10. Article 2 (a) section 42, Malawian Constitution.
  11. Article 2 (c) section 42, Malawian Constitution
  12. Article 2 (f)(vii) section 42, Malawian Constitution
  13. Article 3 section 278, Malawian Penal Code
  14. Article 2 section 269, Malawian Penal Code
  15. Article 1 section 26, Malawian Penal Code.
  16. Article 1 (a), (b), (c), (d), (f) Section 42, Malawian Constitution.
  17. US Department of State : Malawi’s Human Rights Report 2016, see link above
  18. Article 3 section 121 part XXIV, Malawian Prisons Act (CAP 9 :02).
  19. http://opentrial.net/