Malawi

COVID-19 restrictions and the impact on criminal justice and human rights, Malawi

COVID-19 restrictions and the impact on criminal justice & human rights, Malawi

Report - Overview and key findings COVID-19 restrictions and the impact on criminal justice and human rights (Kenya, Malawi, Mozambique, South Africa & Zambia)

This report makes a number of overview observations dealing with broader issues of governance, human rights, the socio-economic impact of the COVID-19 pandemic and the criminal justice system. A central lesson to be taken from these findings is the need for continued vigilance in seeking a balancing of rights and the importance of evidence-based policy-making, especially where there is the potential that those already socio-economically vulnerable may be pushed deeper into poverty. Report by L Muntingh, J Mangwanda & K Petersen

Annexure Two: COVID-19 restrictions and the impact on criminal justice and human rights | Malawi

Report by K Petersen and J Mangwanda (2022)

By L Muntingh, J Mangwanda, K Petersen, T Lorizzo and V Petrovic

This factsheet focuses on arrest without a warrant in Malawi. Currently in Malawi there remain laws on the statutes that have not been tested against constitutional requirements resulting in all likelihood in arrests that are not compliant with the Constitution.

Solitary Confinement - A review of the legal framework and practice in five African countries

This report investigates the legal frameworks of five African countries (Kenya Malawi, Mozambique, South Africa and Zambia) as they relate to the use of solitary confinement. The effect of long periods of solitary confinement have been shown to have severe impacts on a prisoner’s mental and physical well-being. The UN Human Rights Committee (UNHRC) has noted that the use of prolonged solitary confinement may amount to torture or to cruel, inhuman or degrading treatment or punishment, in breach of Article 7 of the International Covenant on Civil and Political Rights (ICCPR). In December 2015, the UN General Assembly adopted the revised United Nations Standard Minimum Rules for the Treatment of Prisoners, also known as the Nelson Mandela Rules (‘2015 UNSMR’). The 2015 UNSMR addresses a key shortcoming in the protection and treatment of people in places of detention, as it, for the first time, sets down norms and limitations on the use of solitary confinement. The report concludes that there are major areas of non-compliance in each of the countries and this requires urgent attention

The deprivation of liberty is a serious intervention in any person’s life, and therefore the possibility of releasing an accused person from custody pending trial is a fundamental part of criminal justice systems across the world. Criminal justice systems have developed various ways to ensure, at least in law, that accused persons appear for trial without depriving them of their liberty. Such release may be conditional or unconditional. Unconditional release usually takes the form of a warning to appear in court at a later date, while conditional release can be secured through bail, bond, surety, and supervision. This paper reviews the laws on conditional release in Burundi, Malawi and Mozambique. These three countries were selected on the basis that they represent not only different types of legal systems but Francophone, Anglophone and Lusophone legal traditions, respectively. --

Malawi launches new criminal justice case flow system

Mobile training unit members were trained in the last week of July 2015 on the new registers, case folders and court diary, designed to ensure pre-trial detainees do not get "lost" and that time limits in the criminal justice system are met.

Pocket Guide to Arrest and Detention in Malawi

This guide is for anyone who needs a quick reference to the laws around arrest and detention in Malawi. This may include police, court clerks, prosecutors, magistrates, paralegals and detainees. First there is an orientation to the criminal justice system and a diagram and summary of what happens in Malawi around arrest and detention, page 1. The main part of the book focuses on what the Criminal Procedure and Evidence Code says. It starts with when and how arrest can happen and possibilities for release at the police station, page 4. This is followed by a section on how things happen in court and how people can be released by the court, page 12. There are special sections on the arrest and release of children, pages 7 and 11. There is also a list of children’s offences that are considered serious, see page 34, and there is a section on the maximum times allowed for the commencement and duration of trial, page 16. The rights of every person in Malawi, as well as the specific rights of those who have been arrested and detained are described, pages 18 - 21. The meanings of legal words can be found in the glossary near the back, page 22. At the very back is a long list of all the offences for which someone can be arrested in Malawi. These offences are divided into those that need a warrant for arrest, and those that do not, page 26

Time Limits Poster

This poster explains the various time limits which apply to arrest and detention in criminal procedure in Malawi.

Release at Court Poster

This poster explains how an arrested person can be released at court in Malawi criminal procedure.

Constitutional Rights Poster

This poster explains some of the rights contained in Malawi's Constitution.

"In our view there was only one issue before the court. This is namely whether or not to release the appellant on bail. And in keeping with the law the High Court should have asked itself one and only one question namely: whether or not it was in the interests of justice that the appellant continues to be in detention."

Malawi works toward implementing custody time limits

Malawi's Constitution and amended Criminal Procedure and Evidence Code provide for time limits applicable to various stages of the criminal justice process, after which an accused person is no longer lawfully detained.

This is a Preliminary Study of the Law and Practice Relating to Arrests for Nuisance-Related Offences in Blantyre, Malawi, by the Southern African Litigation Centre and the Centre for Human Rights Education, Advice and Assistance (CHREAA), funded by the Open Society Foundation for Southern Africa and the United Nations Democracy Fund.

SALC and CHREAA launch study on nuisance-related arrests

The Southern African Litigation Centre (SALC) and Malawi's Centre for Human Rights Education, Advice and Assistance (CHREAA) launched a report at the Golden Peacock Hotel in Lilongwe on their study of the law and practice relating to arrests for nuisance-related offences in Blantyre, Malawi. Senior judges and magistrates were in attendance at the launch, and Justice Edward Twea gave the keynote address.

"Defendants are presumed innocent and have the right to a public trial but not to a trial by jury. The Ministry of Justice continued its indefinite suspension of jury trials in murder cases, since murder suspects sometimes were incarcerated for years awaiting trial by jury. Juries were used in other types of cases. Child Justice Courts in Blantyre, Mzuzu, and Zomba handled cases of child offenders. The law provides for an accused to be informed of charges by a court within 48 hours. Defendants have the right to be present at their trial, are entitled to an attorney, and, if indigent, to have an attorney provided at state expense. Such assistance generally was limited to homicide cases. Defendants have the right to present and challenge evidence and witnesses and have access to government-held evidence relevant to their cases. By law, they are not compelled to testify or confess guilt. The law extends the above rights to all persons. All persons have the right of appeal; however, appeals often were delayed for years and sometimes never addressed by the higher court."

Centre for Human Rights Education Advice and Assistance (CHREAA)

Blantyre-based Centre for Human Rights, Advice and Assistance (CHREAA) is an NGO which champions the right of prisoners and vulnerable citizens.

Report of the International Bar Association’s Human Rights Institute (IBAHRI), funded by the Open Society Initiative for Southern Africa (OSISA).

'Insult to the President' Malawi pretrial detainees released after 17 months awaiting trial

A Lilongwe court released five security guards arrested under insult laws after an application by the Malawi Human Rights Commission.

New Malawi President fires Police Chief

Human rights groups welcomed the decision by Joyce Banda, who succeeded Bingu wa Mutharika on Saturday 7 March after his death from a heart attack.

Centre for Human Rights and Rehabilitation

The mission of CHRR is to "contribute toward the protection, promotion and consolidation of good governance by empowering rural and urban communities in Malawi to be aware of and exercise their rights through research advocacy and networking in order to realise human development."

Paralegal Advisory Service Institute

PASI started in Malawi in May 2000 as a partnership of Penal Reform International (PRI) with four Malawian NGOs, to provide legal assistance to people awaiting trial in prison and defend their legal and constitutional rights.

Malawi Human Rights Commissioner Arrested, Police Crackdown

John Kapito, the Chairperson of the Malawi Human Rights Commission, was detained on Friday 16 March by eight policemen who accused him of possessing guns, holding seditious meetings and printing seditious T-shirts, which insulted President Bingu wa Mutharika. On Sunday security forces prevented people from attending an opposition meeting, leading to violence.

Malawi journalists, activists threatened with "insult to the President" laws

Malawi's State House issued a statement in early March 2012 in which it threatened journalists and civil society with application of an "Insult to the President" law emanating from the Banda era, which could result in fines or imprisonment.

Ralph Kasambara, former Attorney-General and lawyer who has brought many of the most recent important human rights or rule of law cases in Malawi to court, has been detained in prison after defending himself from petrol bombers.

"This matter is about the constitutionality of the applicant's detention whilst awaiting to he tried. Indeed what I am being asked to consider in this case is whether there was a breach of the reasonable time requirement as stipulated in Section 42(2)(f)(i) of the Constitution of Malawi. In this regard, I believe that the test that has to be adopted would be one that was laid down in. Attorney-General's Reference (No 1 of 1990)[1992] QJ3 630, which is that (in the absence of malpractice or misbehaviour by the prosecutor) the attention of the court is directed to the single issue whether, because of the delay which has occurred, a fair trial of the accused or defendant will or may be prejudiced."