THE Malawi Human Rights Commission (MHRC) and some legal experts, including the High Court Judge, have called for radical reforms in the way the courts handle murder cases. They feel the handling has been unfair to some of the suspects, leading to their being on death row even without a case to answer.
MHRC Director of Civil and Political Rights, Peter Chisi, said after going through the three-year homicide cases rehearing project named Kafantayeni, the commission has observed a lot of things that need urgent action. Chisi said since the use of jury trial in homicide cases has been found wanting, the commission proposes the use of professional magistrates in trying, and not necessarily passing judgements, in such cases.
“And when I talk about professional magistrates I am talking about people who have received professional training in law like through the University of Malawi and are qualified lawyers. These can try and then, once they hear the cases, the judgements will be at the High Court level,” Chisi said.
He also said the issue of record management in the judiciary needs a lot of improvement to prevent loss of some important case files and, if possible, the court records must be automated for accessibility to both Malawi Police Service and Malawi Prison Service.
Chisi made the court records’ proposal in response to the loss of some of the files connected to the homicide cases that were earmarked for the rehearing, forcing the commission and others involved to reconstruct the files through village mitigations and other means.
Renowned legal expert, Chikosa Silungwe, who was the Kafantayeni project consultant, said the rehearing has resulted into some legal pressure. He said the reforms that have been used in the process of rehearing 154 cases, the immediate release of 112 of the convicts, the giving of ordinary sentences to 41 convicts and life imprisonment of one convict need to be formalised.
According to Silungwe, a number of legal practices have been done in the project and the hope is that they will find their way into the formal justice system. The legal scholar said the interaction between defence lawyers and the prisoners could also have been better. High Court Judge Zione Ntaba said time and resource constraints are hampering justice delivery and hopes for improvement
. “If you are on a death row for over 12 years, that is torture,” Ntaba said. Minister of Justice and Constitutional Affairs, Samuel Tembenu, who responded in affirmative to the calls for reforms, wondered how a criminal case takes over 15 years to conclude.
“Let’s use what has been used in Kafantayeni to reform,” Tembenu said. He, however, faulted the justice system for emphasising on the offender and not the victims. “More often, the courts, defence and prosecution emphasise on offenders instead of the victims. As we reform, we need to come up with deliberate efforts that will see the victims in these cases considered,” he said.
In a 2007 case of Francis Kafantayeni, himself a murder convict, and others versus the Attorney General, the High Court of Malawi invalidated the mandatory death penalty and found that all prisoners that had been given a mandatory death sentence were entitled to a new sentencing hearing.
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