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Prison Act: A colonialism legacy not in a hurry to change

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Peter Dimba

By Wezzie Gausi:

Malawi got independence 58 years ago but many things are yet to change to reflect the status of the country at the moment.

One such area where the country is still stuck in the past is that of laws.

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For instance, the Prison Act which Malawi uses now was passed before independence in 1956 and lamentations about its archaic nature and how that is affecting lives come from various quarters including inmates themselves.

Moses Yakobe (not real name), an inmate at Maula prison, says the conditions in the prison are not conducive for human habitation.

He says inmates are provided with one meal per day, for instance, which he says is inhumane.

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Yakobe says the manner in which inmates sleep at night – packed tightly such that there is hardly space for one to turn — is not something that people should be subjected to just because they are serving sentences.

“Honestly Malawian prisons are not reformatory places; rather, they are places that are there to harden inmates.

“We are exposed to harsh conditions and treatment. When you are in prison in Malawi, it is like you are left here to die. We don’t know what kind of laws we are using but they are not good to us,” Yakobe says.

Another inmate, Josophine Banda (not real name), says something is not right with how inmates are treated, further wondering why Malawi does not have laws that reflect that people who are convicted still have rights.

“I cannot explain why the government is failing to help us inmates with laws that are progressive.

“When we hear that the laws that we are using date as far back as 1956, that is when we realise that nothing good is meant for inmates,” Banda says.

Executive Director for Centre for Human Rights and Rehabilitation (CHRR) Michael Kaiyatsa says Malawi’s continued use of archaic prison laws is unacceptable.

He says some of the provisions in these outdated laws are inconsistent with the Constitution.

“One example is the issue of corporal punishment which is prohibited by the Constitution. Section 19(4) of the Constitution clearly states that no person shall be subjected to corporal punishment in connection with any judicial proceedings or in any proceedings before any organ of the State.

“The Constitution further states that any law that is inconsistent with the provisions of the Constitution is invalid. From a Constitutional perspective, therefore, it is unacceptable to continue using the 1956 prison laws,” Kaiyatsa says.

He further says it is unfortunate that government is still dragging its feet on the review of these laws.

“The government should expedite the tabling of the Correction Service Bill to replace the archaic prison laws. Government is in breach of the Constitution by continuing to use these outdated prison laws,” he says.

Executive Director for Centre for Human Rights, Education, Advice and Assistance (CHREAA) Victor Mhango says it disappointing that the Ministry of Homeland security which is the policy holder of the Prison Bill, is not taking the lead in pushing for the bill.

“We keep getting mixed information as to the status of the bill. This speaks to the lack of political will to address prisoners’ issues in the country. If we regard prisoners as human beings, then we should not be sitting on an important bill like this one, which right now seems to have no direction,” Mhango says.

But the existence of the bill is subject to question.

Ministry of Justice spokesperson Mzondi Banda says work is in progress on the said bill and when it is ready, it will be tabled in Parliament.

“Currently the Drafting Section is working on more than 100 bills and this means that not all bills will go to Parliament at the same time,” Banda says.

However, an inside source who opted for anonymity says there is no draft Prisons Bill at the Ministry of Justice.

The source says as it stands, the Ministry of Homeland Security which is the policy holder hasn’t even made any submission as per this law to the Ministry of Justice.

“What you have been told is just diplomatic. The truth is that there is nothing like Prison Bill at the ministry.

“We are just hearing from the media on the Prison Bill, but there is no bill and no submission has been made,” says the source.

Ministry of Homeland Security Principal Secretary Oliver Kumbambe says the ministry is still working on the bill.

“Of course, there have been some delays in coming up with the Prison Bill. But we don’t want to leave any stone unturned. We want to make sure that everything is in place before tabling the bill,” Kumbambe says.

Parliamentary Committee on Legal Affairs chairperson Peter Dimba says he knows nothing regarding the bill.

He says by law, the Ministry of Justice gives them all bills for them to second eye before presenting to Parliament but the committee has never seen the Prison Bill draft.

“I don’t know what I can comment on the Prison Bill. But as a committee we have no idea on that bill,” Dimba says.

Legal Aid Bureau Director Masauko Chamkakala says it is true that the Prisons Act is in dire need of amendment.

“The consequence of using this outdated law is that these other provisions which are contrary to the constitution are still in use.

“These laws, aside from infringing on the rights and lives of prisoners, have also contributed to the unnecessary prolonged prison sentences as the new innovative correction methods like parole and half-way homes and other such processes are not available,” Chamkakala says.

According to experts, the current Prisons Act is designed to silence, punish and suppress the indigenous Malawian population.

They say it is absurd that it should still be the basis for the prison framework in the modern Malawi.

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