Thoughts of a Prisoner – Boxten Kudziwe

Boxten Kudziwe, one of hundreds of prisoners in Malawi currently imprisoned in pre-trial detention, has written the below article about his experiences of the criminal justice system in Malawi.  He talks about the idea of a fair trial, adequate legal representation and rehabilitation and how all of these fairly standard notions of justice are inaccessible for the majority of Malawians living below the poverty line.

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VOLUME (l). JUDICIAL SYSTEM IN MALAWI SINCE DEMOCRACY

      FINDINGS AFTER CONDUCTING THE RESEARCH IN CHICHIRI PRISON

1.   FAIR TRIAL

Justice and the Law, the word Justice is some how complicated “justice to me is not justice to the other, it is said that “justice delayed is justice denied” but again “justice hasty is justice buried” the issue of injustice and violation of human right is common for those who are taken as offenders of law, it is common starting from the time of the police (when the suspect is fist in the hands of the police) arrested.  When the trial has commenced it takes time for the prosecution (state) to prove beyond reasonable doubt in a court of Law, this bring in suspicious to magistrate or judge when summing up the case. Crime, not all crimes or offenses are to attract custodial sentence, and on the crimes or offences there are alternatives to sentence on default of a fine, other offences are to attract burned over, community services, but any conviction has to be reviewed by the crown or High Court.

Long term awaiting trial has to come up with some other problems to suspects and at the same time violation of Human Rights.  This brings in problems to both prosecution and the presiding Magistrate or judge on terms of summing up the case, some times it brings in suspicions to the evidence after so long hearing the magistrates or Judges fail to conclude the case . This might bring the judge to come up with wrong decision whether ending up convicting the innocent or acquitting the guilty. If convicting the said suspect, the presiding judge fails to consider the suspect (s) [period spent during hearing of the case (remand), he or she only bare in mind on the circumstance of the alleged offence yet the law is allowing the presiding judge to consider from both parties saying`s, from there coming up with his /her verdict and again, this will eliminate creating an offence on top of the offence. Looking in this fact you will see that, the court has the duty to reduce congestion or creating congestion in Prison,

2. MISSING OF FILES AT LOWER COURT

In many cases, files has been found missing in lower courts, leaving the convicted with no other chances of finding where justice is, and ending up serving the imposed sentence (s). Sentence review and appeal of cases at High Court are sometimes unsuccessful due to missing of files at lower court (s) and this has lead to failure to meet appeals or confirmations, failing to meet Justice at court. The constitution is giving chance to anyone who has a conviction to appeal to the high court, when He/ she is not certain with the conviction /sentence.  However majority in prison are trying in this and that way, but all in vein because the files are no where to be found at the lower court or even at the High (Crown) Court. Due to unavailable of information that has lead the magistrate/judge to convict and sentence the said person to imposed sentence, it is difficult again for High / Crown Court to operate their jobs, in many occasion you will see that the lower court always do this deliberately to make sure that the said sentence should not be reviewed, this is because the magistrate or the Judge has wrongly impose a conviction and sentence to the suspect.

The sadder thing is that this problem is common in cases where the convict has sentenced to many years imprisonment, why that the offender must languish behind bars without chances to appeal or considered by other translators of law, should we say that this is the nature of justice in Malawi?  What are the International Norms saying on these issues, referring in both Amnesty International and United Nations?

3.   SENTENCING

Sentencing, it is constitutional to sentence everyone who has committed a felony, the court of law has duty to translate the law, proving beyond reasonable doubt that the said has really committed the offence. Now it is to the interest of the presiding magistrate /judges impose the sentence after weighing the evidence from both prosecution and defending. This is when the court has sat down and decides whether to give a fine, suspended / community service or custodial sentence to the offender of the law. This is to be done to avoid creating the case on a case, many offenders have become unruly, because they have been mixed up with those who are used to the prison environment {jailbirds} Kabwerebweres, there are no classification of prisoners in Malawi notorious prisoners in Malawi are just mixed with the first offender this has come up with negative impact to the society because those who are taken to prison for the first time end up copying the unruly behaviors from those who are used to be in different crime and they took themselves as champion criminals. This brings in problems like, those who were taken into prison on petty issues they end up joining other team and come in again with big crimes like robbery, armed robbery just mention a few. It is right to say that a sentence comes depending on how serious the alleged offence is, how much the loss was incurred and how grave was the act of the crime. But how can one sentenced to eighteen and above on the case of theft, yet the stolen items or goods were recovered? {Source Chichiri Prison}.

 4.   REVIEW AND APPEALS AT HIGH COURT

It is constitutional that every conviction and sentence from the lower court should be reviewed at High Court, and again confirmation and appeal is constitutional matter, every person who has been convicted has aright to appeal against his or her conviction and sentence. But it is common in cases among prisoners that once convicted there are no other chances to fight for their justice, more than three quarters of the convicted prisoners you will see that they are serving sentences which are not deserving their crime, this is because they had no access to justice at first and also no legal representation. It is to my views that The Government of Malawi has to do a lot with the judiciary, only to make sure that cases are handled in the right time considering the right to trial.

 5. DETENTION WITHOUT TRIAL

DETENTION WITHOUT TRIAL, This is common in countries where there are political prisoners, and it is contrary to Human Right. Thus so called Arbitrary Detention, this is violation of Human Rights and violation of International Norms relating to the Right to fair trial and to the due process of Law are of such gravity to give the deprivation of Liberty character. The maintained detention of the said individual is contrary to articles 9, 10, and 11 of the declaration of Human Rights and articles 9and 14 of the International covenant on Civil and Political Rights.

The legal procedures of this country [MALAWI] are superb, but not to the democratic system of government, unless other wise. It is not fair for the country’s population of thirteen million, to have more than thirteen thousand inmates in its prisons, unlawful detention, backlog of cases these are contributing factors to congestion in prisons, today the citizens of this country are not enjoying the fruits of their land. Therefore we are urging the International Organization, Human Rights Groups and other Human Rights watch Dogs to put Malawi on microscope on this issue. Many people are languishing in Prisons for years and years awaiting trials, manly those answering homicide cases (Murder). Those remanded for homicide charges spent many years without proven guilty by the court of law, the law is talking of fair trial in an independent court of law in a reasonable period of time. 

6.   LAWYERS BOTCHING THEIR CLIENTS

In most cases the lawyers are involved in the practice that is not assisting the countries legal system; they are coming in the field with an aim of making themselves rich (feeding their stomachs), not to assist their clients. They are just good lawyers at the time of collecting money but not doing the job. This issue of botch is growing among lawyers, many are coming in the name of lawyers but they are not assisting their clients, yet the client has spent a lot of cash only with hope that he will be assisted on his /her problem. Malawi Law Society the Body has the role to look after the welfare of the lawyers and their operations, but they are silent on this problem faced their clients. The Legal Aid Department, this is the Governmental Body that was established by the Act of the Parliament, but its operations are not for the public interest, though each and every year the parliament is passing the budget for its operations. Legal representation for the poor is the big problem yet the Government is pumping Tax payers money to the Department. Where all money goes? Are they just put that money in their pockets?  Let’s practice justice, let’s talk justice, and let’s walk the talk.

7.    INTEGRATION

People in the society are always in problems, (put negative attitude) with people who were once imprisoned; this is due to the attitude of the society towards the prisoner for what he /she did before to the community. The issue of integration is coming up with negative impact to the Development of societies /country at large, we have the issue of reformation, when the inmate has come out of the prison he /she is the member of the society and they have the right to take part in any activity in the community (community participation) they are entitled to all rights and freedoms of their country and at the same time contributing to the development of their family, don’t forget that though they are offender of law but still he /she is the Human being who is able to think, to do and he /she deserve rights and freedom. (No-one has been given the power to deprive the rights /freedoms from him/her.  When the ex-prisoner is taken as the enemy to the society you must know that you are try to take away his/ her rights and freedoms. Remember deprivation of rights and freedoms from any person is what we call violation of Human Rights, and this is contrary to United Nation Declaration. The UN declaration states that if the country is a member of the body it is supposed to respect the rule that is in the declaration chapter of Human Rights and Freedoms. Malawi is a member of United Nations, it to her to respect and protect its membership.

 

BOXTEN A. T. KUDZIWE