Justice delayed is Justice denied

The Strike

Since my arrival in Malawi almost three months ago, all 200 courts, from the Supreme Court to the Magistrate’s Courts, have remained closed.  After negotiations in 2005, Parliament promised the court staff a salary increase of 50%, to come into effect in 2006.  However, as six years have passed without any sign of the approved pay rise, the court staff understandably felt there was no alternative other than to go on strike.  Negotiations with the Judicial Services Commission have been ongoing since January, but the staff maintain that they will not return to work until the government meets their demands.  To demonstrate their support, senior members of the Judiciary joined the strike following the government’s failure to meet the March 1st deadline to implement the terms of service agreed in 2006.

The Effect on the Prisoners

The overcrowding in prisons across the country was horrendous even before the strike began, with cells at Chichiri prison, built to hold 60 prisoners, being shared by 150 inmates.  Speaking to prisoners in Chichiri over the past week, I have been told that these 60 capacity cells are now holding over two hundred men; some attempt to sleep standing up with the remainder sleeping shoulder to shoulder on the cell floor.  These conditions are not only inhumane – and intolerable – but also increase the spread of infectious diseases, most commonly TB.The police are increasingly unable to comply with their duties under Section 42(2) (b) of the Constitution, which states that “as soon as it is reasonably possible and not later than 48 hours after the arrest – or if the period of 48 hours expires outside ordinary court hours or on a day which is not a court day, the first court day after expiry – suspects must be charged or informed of the reason for their continued detention, failing which they should be released”.  As those accused cannot appear in court they are being kept in police cells. Police bail is deemed appropriate for a small number of minor offences but those accused of more serious crimes are either kept in police cells or simply taken directly to prison.  Consequently, the amount of remandees has more than doubled in the three months since the courts closed their doors.  The Prison Service’s budget has not increased to address the congestion and is likely to run out if the strike continues.  Prisoners in Chichiri survived on one meal a day before the strike began but, with five hundred extra mouths to feed and no increase in the food budget, even that is proving difficult.

What next?

The Prison Service spokesperson, Evans Phiri, has been quoted as saying that after two months on strike there is a backlog of 974 suspects waiting to appear before the courts for trial.  This would be considered unreasonable delay under international law (ICCPR) and contravenes the African Charter on Human and Peoples’ Rights, which states “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to a trial within a reasonable time or to release”.  Those accused could decide to sue for unlawful detention, which could end up costing the tax payer millions of kwacha in compensation.Patricia Kaliati, Minister for Information and Civic Education, says financial problems make it impossible for the Government to meet the demands of the strikers at this time and insists that money from the budget is needed for more pressing issues like paying for imported fuel.  Furthermore, the withdrawal of international donor support has left the government with a serious shortage of funds to meet its budget.  However, the Government should recognise that the court staff are not demanding that they be paid what is due immediately, they are seeking part payment and a commitment in writing that they would fully be paid what is due within a specified period.Whilst I acknowledge the strikers’ warranted frustration at their Government’s lack of appreciation for the work they do for the justice system, I am also aware that other public sector workers like teachers and nurses on a low salary in Malawi are not on strike.  A country cannot continue to run without a functioning judiciary and prisoners will not continue to live without food.

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I wrote this post in March 2012 when the strike had been going on for almost three months.  On 24 March 2012, Chief Secretary to the President and Cabinet, Bright Msaka, made the announcement that the strike had ended.

 “What is important is that it is not the Judiciary or the Executive that has emerged triumphant. The winner is our nation, democracy and nationalism,”.