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Injustice after delivery of justice

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By Richard Chirombo:

CHIJOZI— Delays to confirm cases handled
by first grade magistrate courts is another challenge

Twenty-year-old Yusuf Asipolo— once a prominent member of Mchika Village in Traditional Authority Nyambi, Machinga District— now basks in the sunshine of namelessness, dwarfed by the vastness of Zomba Central Prison, a maximum security facility constructed in 1937.

The prison, according to a Malawi Inspectorate of Prisons Report to Parliament, submitted by Chairperson Justice Kenan Tilombe Manda in July 2016 and titled ‘Prisoners’ Health and Staff Welfare, the facility was designed to house a maximum number of 800 prisoners “but it had 2,151 on the day of inspection”.

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This means, in the confines of Zomba, Peter is a tiny mass weighed down by bodies of other prisoners.

Asipolo, who got a sentence of 12 years imprisonment with hard labour (IHL) for defiling a 14-year-old girl, may end up serving his sentence without knowing whether the High Court confirmed it or not.

When Liwonde First Grade Magistrate Jones Masula meted out the sentence, the 20-year-old man did not believe it.

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His first reaction was to faint in the courtroom.

When he came to, he complained, loudly: “The sentence is excessive. I am a bred-winner for my family. It is excessive.”

He did not faint again but has been hoping that, somehow, there will be justice after justice.

After all, he represented himself.

Secondly, magistrates are human beings, too.

Surely, any procedure followed to review the sentence may go a long way in making him appreciate that, at least, the court tried its best.

“I am convinced that the sentence is excessive,” were the last words he said, before being thrown in the cooler.

The problem is not with the First Grade Magistrate Court, though; the problem is with the High Court, which has, of late, been caught sleeping on the job, in terms of confirming, within two years, cases presided over by first grade magistrate courts in the country.

This means 27-year-old transporter, Frank Namanja, who the Liwonde First Grade Magistrate Court sentenced to six years IHL for abducting a six-year-old girl, in line with the Child Care, Protection and Justice Act, may have to wait for over two years to know if the High Court will find nothing wrong with the sentence.

He faced the wrath of justice and was convicted in January this year.

He, too, may not see justice after justice since the High Court, which is mandated to be confirming rulings which first grade magistrate courts make has been failing to do so.

Not that this has always been a challenge, for the confirmation of cases has been a tradition.

Precedent

For example, in the High Court of Malawi Registry, one will come across ‘Confirmation Case Number 276 of 2001’, ‘Republic v Mawaya and Others (Confirmation Case No. 794 of 2000’, ‘Confirmation Case NOs 22, 411 and 662 of 2011’, ‘Confirmation Case No. 237 of 1999’, ‘Confirmation Case No. 149 Of 2000’, among others.

In one of the cases, for example ‘Confirmation Case No. 494 Of 1997— The Republic versus Francis Ndisale— the first grade magistrate court’s ruling is being questioned.

The judgement reads like this: “This case was set down by the Honourable Mr Justice Tembo to consider the severity of the sentence. The defendant, Francis Ndisale, was convicted by the First Grade Magistrate sitting at Salima for burglary and theft. There is no problem with the sentence imposed for the theft charge. It is the six years’ imprisonment passed for the burglary that the learned judge queried.

“The complainant’s house was broken into on the night of 20th June, 1996. The defendant was seen selling a basin stolen from the house shortly thereafter. The defendant was convicted after full trial. He was sentenced as mentioned earlier.

“The court below got the cue from the remarks of the prosecutor that a stiff sentence should be passed. There was concern that the offence was commonplace in the locality and something should be done about it. The court below however did not give reasons for the sentence it imposed. The sentence it imposed cannot be justified on any premise.”

In the end, Justice D.F. Mwaungulu approved the sentence of the lower court in the burglary case and ruled as follows:

“Here there is very scanty evidence of damage to the premises. All we know is that the house was locked in the night. The complainant was woken up by the sound of a basin. When he went out, the intruder was in and out of the house. This was by definition a simple burglary for which this court now approves a sentence of three years’ imprisonment with hard labour.

“I set aside the six years imprisonment. The defendant will serve three years’ imprisonment with hard labour. The sentences will run concurrently as the court below ordered. Made in open court this 31st Day of July 1997.”

That is how things go.

However, issues like these can, surely, not be grasped by Asipolo and other ordinary folk.

In another case in the High Court of Malawi Principal Registry, Confirmation Case No. 149 of 2000 [the Republic versus Ndelemani], the upper court had to assess a case from the First Grade Magistrate Court at Dalton Road in Limbe, Criminal Case No. 78 of 2000.

The judgement reads: “The judge who reviewed this matter from the Dalton Road First Grade Magistrate Court thought this Court should review the sentence. The First Grade Magistrate at Dalton Road Magistrate Court at Limbe sentenced the defendant to eight months imprisonment with hard labour. The First Grade Magistrate convicted the defendant of theft by servant. Theft by servant is an offence under Section 286 of the Penal Code. The judge probably thought the sentence was manifestly excessive.

“The First Grade Magistrate sentenced the defendant to eight months imprisonment. Factoring in the rebate in section 107 of the Prison Act, the prison authorities should have released the defendant around the 7th July 2000. Setting the case for review for 4th August 2000 undermined the efficacy of the review process. Were this Court to reduce the sentence the defendant would have served the objectionable sentence. Conversely, were the Court to enhance the sentence, this Court is reluctant, properly in my view, to recall a prisoner already released to serve an enhanced sentence. The Registrar or those in charge of the criminal appeal and review list should set cases in a way that preserves the review or appeal process.”

However, the High Court judge in this case observed that there are conditions for reducing a sentence after confirmation.

“This Court does not interfere with a lower court’s sentence merely because it would have passed a different sentence. It interferes where the sentence is manifestly excessive or inadequate as to involve an error of principle, the lower court ignored, accentuated or undermined a factor or there was an error of principle. The First Grade Magistrate’s sentence is faultless in all regards.It is confirmed.”

Behind the scenes, within two years of making a sentence, this is what goes on behind the back of the Asipolos of this world.

It is like the justice system follows through its own processes to ensure that the soup of justice served at first grade magistrate courts is delivered to the satisfaction of all.

Without doing this, the sense of oppression would prevail and become a state of mind in the country’s prisons and juvenile centres. These are Mzuzu Prison, Chitipa Prison, Karonga Prison, Rumphi Prison, Nkhata Bay Prison, Mzimba Prison in the Nothern Region; Byanzi Juvenile Centre in Dowa, Kachere Juvenile Centre, Nkhotakota Prison, Kasungu Prison in the Central Region, and; Ntcheu Prison, Mpemba and Chilwa Reformatory centres, Mulanje Prison, Makande Prison, Thyolo Prison, Mwanza Prison, Bvumbwe Prison, Balaka Halfway House [run by the Prison Fellowship Malawi, which promotes rehabilitation of offenders], Domasi Prison, Chichiri Prison, Zomba Prison, Mikuyu 1 Prison and Mikuyu 2 Prison in the Southern Region.

Last year, the Paralegal Advisory Services Institute (Pasi) decried delays, by the High Court, in confirming sentences passed by lower courts.

The organiSation’s team leader for the Central Region, Alfred Munika, says the High Court should be exercising its powers and start confirming cases to address problems associated with such delays.

This is because, when a person is sentenced to serve a jail term which is passed by first grade magistrate courts, the law provides that such a sentence should be confirmed by the High Court within two years.

“Otherwise, in an event where the first grade magistrate errored in passing the sentence, the convict will end up staying in prison illegally because such a sentence was not confirmed by the High Court.

“We have observed tremendous problems as regards the delays in confirmation of sentences in criminal matters. There are a lot of convicted prisoners who have been in prison because the law— I am talking of the Criminal Procedure and Evidence Code— provides that there are time-frames set for the High Court to confirm [cases] but you find that 75 percent of cases of prisoners who are in our prisons are not confirmed.

“There is a substantive debate to say should the officers-in-charge of prisons release all the prisoners whose sentences have not been confirmed? But we should make sure that the system should be energised to ensure that the High Court reviews and confirms these sentences,” Munika says.

Considering that, according to the Malawi Inspectorate of Prisons, Mzuzu Prison has a holding capacity of 200, Chitipa Prison 150, Karonga Prison 25, Rumphi Prison 300, Nkhata Bay Prison 50, Mzimba Prison 500, Byanzi Juvenile Centre 72, Kachere Juvenile Centre 150, Nkhotakota Prison 270, Kasungu Prison 400.

Indeed, considering that, according to the Malawi Inspectorate of Prisons, Ntcheu Prison has a capacity of 180, Mulanje Prison 200, Thyolo Prison 100, Bvumbwe Prison 100, Mwanza Prison 250, Domasi Prison 120, Chichri Prison 800, Zomba Prison 800, Mikuyu 1 Prison 269 and Mikuyu 2 Prison 250, 75 percent of unconfirmed cases is a big number.

Indeed, Centre for Human Rights, Education, Advice and Assistance Deputy Director, Chikondi Chijozi, observes that delays to confirm cases is one of the challenges her organisation faces as it helps prisoners get legal representation, benefit from psycho-social support, among other things.

Her organisation fights laws that are deemed “discriminatory”.

This is exacerbated by the fact that access to a lawyer remains a privilege for the majority of the population.

“Over 80 percent of prisoners in Malawi are people who cannot afford services of a lawyer. So, our organisation, as a human rights organisation, promotes social justice, which includes [fighting for the rights of] prisoners. We provide them with knowledge and other services,” Chijozi says.

She says this is necessary, especially when the courts continue to send people with minor offences to prison.

SUFFER INJUSTICE AFTER JUSTICE DELIVERY—Prisoners

The organisation has been championing initiatives such as The Bail Education Project, aimed at disseminating information on how to apply for bail to those that are in police cells or answering charges in court; Decriminalisation of Vagrancy Campaign, in the wake of the observation that The Malawi Penal Code provides for various nuisance-related offences, including common nuisances; as well as Protecting Sex Workers From Abuse Project.

Chijozi says, while the organisation has been successful in ensuring that human rights are respected, challenges abound.

“For example, we still have cases where cases take long before being heard; there are people who have stayed a long time without appearing in court after the adjournment of cases— sometimes because magistrates or police prosecutors have not been available.

“Delays to confirm cases handled by first grade magistrate courts is another challenge. That is why we work with those affected to ensure that there is justice,” she says.

Judge Edward Twea recently put the issue of delays in confirming cases in context when he said the problem arises because the country’s criminal justice system is dependent on magistrates, most of whom are not lawyers.

“About 90 percent of the magistrates [in the country] are not lawyers and prosecutors in the magistrates’ court are police officers. The law provides for confirmation and reviews so that, even when one does not appeal, the High Court will look at the process and the sentence [to check] if it had complied with the law to ensure that one has gone through a fair trial.

“So the problem is that this takes too long for the cases to be moving from districts to the High Court,” he is quoted in The Daily Times as saying.

Even Chief Justice Andrew Nyirenda acknowledges the problem last year, saying the Judiciary was doing its best to address such challenges.

In the near future, he says, such cases will be a thing of the past.

Malawi Law Society Honorary Secretary, Martha Etta-Kaukonde, says the law on confirmation is “an over-sight law”.

“It is based on the fact that magistrates are not qualified lawyers and can, therefore, make mistakes.

“The confirmation is similar to appeal; just that there is no hearing. The High Court judge may say conviction is not in order or uphold it.

“But the issue, as I see it, is lack of enforcement,” Etta-Kakonde says.

She, however, says delays to confirm cases do not negatively affect the delivery of justice because “convicts still have a right to appeal to the High Court. People can still appeal”.

Malawi amended its 1930 Penal Code to conform to the aspirations of the people of Malawi which are reflected in its 1994 Republican Constitution, which includes respect for human rights for all.

Personnel shortage

Malawi is faced with a number of challenges, including shortage of personnel, in the legal sector, forcing some stakeholders to suggest that formalising the role of paralegals— which would see them being allowed to represent clients facing trial— could go a long way in solving the challenge.

Pasi National Coordinator, Chimwemwe Ndalahoma, observes that failure to recognise the role played by paralegals is limiting citizens’ right to access justice in the country.

He says Pasi has 70 paralegals across the country and 2,400 community paralegals who have helped stakeholders reduce the number of cases being sent to the formal justice system.

“These paralegals are currently doing a commendable job in enhancing access to justice among the poor. This needs to be reinforced further by formalising their role in the country,” he says.

However, paralegals cannot serve as High Court judges, which means their integration may do nothing to expedite the process of case confirmation.

Ray of hope

Meanwhile, there seems to be light at the end of the tunnel for those whose cases passed through first grade magistrate courts but, over two years later, their cases have not been confirmed.

This is because officials from the Judiciary, Malawi Prison Service, among others, have come up with a bench-book which, in the long run, will ensure that the process of confirming cases is done in time.

Twea is upbeat that this will go a long way in addressing the problem.

Irish Rule of Law International Alternative Justice Programme Officer, Jolene Quinn, says justice must not only be seen to be done, prisoners must “feel” that it was done.

Confirmation of cases does just that.

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