Difference between revisions of "Malawi"

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Revision as of 11:15, 9 May 2018

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:

Freedom from prolonged pre-trial detention

According to Malawi’s Constitution, the detention of a person shall, as soon as it is reasonably possible but not later than ten days after his or her detention, be reviewed by a court, and the court shall order the release of the detainee if it is satisfied that detention is not necessary to restore peace or order[16].

Freedom from punishment

Malawi’s Constitution protects persons from punishment or torture. As stated in article 3 and 4 of section 19, no person shall be subject to torture of any kind or cruel, inhuman or degrading treatment or punishment and no person shall be subject to corporal punishment in connection with judicial proceedings or in any other proceedings before any organ of the State.

The Malawi Human Rights Commission (MHRC) has also stated in its annual report that torture was widespread in prisons[17].

Right to habeas corpus

Article (2)(i) of section 45 of Malawi’s Constitution states that there shall be no derogation with regard to the right of habeas corpus.

Right to medical care

Every person who is detained, including every sentenced prisoner, shall have the right to be held under conditions consistent with human dignity, among others, medical treatment at the expense of the State[18].

Right to a fair trial

Every person who is detained, including every sentenced prisoner, shall have the right as an accused person, to a fair trial, according to article (1)(f) section 42 of the Malawian Constitution.

Right to notice of charges

According to article (1)(f)(ii) of section 42 of the Malawian Constitution, an accused person, has the right to be informed with sufficient particularity of the charge.

Right to non self-incrimination

Every person arrested for, or accused of, the alleged commission of an offense shall, have the right not to be compelled to make a confession or admission which could be used in evidence against him or her[19].

Right to impartial judge

An accused person shall have the right to a fair trial before an independent and impartial court of law within a reasonable time after having been charged [20].

Right to appeal

Any person aggrieved by any final judgment or order, or any sentence made or passed by any subordinate court may appeal to the High Court. The subordinate court shall inform him that he has a right to appeal the period within which, if he wishes to appeal, his appeal should be preferred[21].

Malawi’s Human Rights Commission

According to section 129 of Malawi’s Constitution there shall be a Human Rights Commission. The primary functions of which shall be the protection and investigation of violations of the rights accorded by this Constitution or any other law.

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[22].

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[23].

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[24].

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

Open Trial [25] provided a valuable input to this page's content
  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 7 (c)(i) section 45, Malawian Constitution.
  17. US Department of State : Malawi’s Human Rights Report 2016, see
  18. Article 1 (b) section 42, Malawian Constitution.
  19. Article 2 (c) section 42, Malawian Constitution.
  20. Article 2 (f)(i) section 42, Malawian Constitution
  21. Section 324 and 346, Malawian Criminal Procedure and Evidence Code
  22. Article 1 (a), (b), (c), (d), (f) Section 42, Malawian Constitution.
  23. US Department of State : Malawi’s Human Rights Report 2016, see link above
  24. Article 3 section 121 part XXIV, Malawian Prisons Act (CAP 9 :02).
  25. http://opentrial.net/