Malawi: Justice for the Rich, Prison for the Poor

Malawi: Justice for the Rich, Prison for the Poor

By Charlotte Mackenzie

In the last year or so, Malawi’s justice system has had more than its fair share of VIPs coming through its doors. In October 2012, several high-level officials linked to Democratic Progressive Party (DPP) were arrested in connection with the death of student activist Robert Chasowa, who was murdered in 2011 when the DPP was in office. And in light of the recent government corruption scandal – dubbed Cashgate in reference to the wads of cash found in suspects’ homes and cars – more high-ranking figures, including former justice minister Ralph Kasambara, have been taken into custody.

For once, these individuals are seeing their country’s justice system from the inside. But in Malawi, justice, like so many other things, seems to be a privilege rather than a universal right. And the experience of Malawi’s VIPs is likely to be a universe away from that of the 12,000 ordinary citizens detained in prisons across the country.

A tale of two justice systems

Robert Chasowa, a student activist and critic of the late Malawian president Bingu wa Mutharika, died in September 2011. Against much outcry and suspicion, his death was originally classified as a suicide. After Mutharika passed away and Joyce Banda took over the presidency in April 2012, however, she reopened the case. A few months later, in October 2012, several figures – many members of the DPP – were arrested in connection with Chasowa’s death, now being treated as the result of murder, and transferred to Chichiri prison in Blantyre, the largest in the Southern region.

Working in the prison at the time, the high-profile detainees were immediately noticeable. After all, it is extremely unusual to find well-fed inmates dressed in suits and laughing with the prison guards. And it is even more unusual that within an hour of arriving in the prison, these detainees had met with their private lawyers who soon set to work on their bail applications.

This treatment could not be more different from that of the majority of Malawian prisoners. Most of those who find themselves in Chichiri arrive handcuffed, emaciated, and in torn clothing. They are welcomed by being lined up in the prison courtyard and humiliatingly strip-searched. 90% of all Malawi’s prisoners cannot afford legal representation and have to rely on the country’s 28 overworked and underpaid legal aid lawyers. Defendants rarely get the opportunity to meet their lawyers before trial.

Furthermore, the conditions for ordinary prisoners are dire. Overcrowding means prison cells built to hold 60 men are often filled with 200. The disease spreads easily, resulting in a high number of deaths from the likes of tuberculosis and AIDS. And if you manage to avoid catching an infectious disease, you are also at risk of dying from malnutrition as inmates may only be given one small cup of Nsima (a maize-based staple food) a day, depending on the prison budget.

Waiting for ages

Malawi’s ordinary prisoners can also expect to stay a lot longer in these prisons. In the case of Chichiri’s high-level guests, the suspects spent seven days in the prison’s VIP section before being brought to court and released on bail the same day – and to the tune of an estimated 7 million Kwacha ($17,000). When releasing the accused, High Court judge Sylvester Kalembera declared that the defendants should not remain in custody as they await their trials “unless the State justifies why the applicants must remain in custody.”

Unfortunately, this is not a test that is rigorously applied to all who find themselves in prison on murder charges. In Chichiri, there are currently over 300 men awaiting trial on murder charges, and the average wait is around 3 years. When speaking to these men, it is hard to think of reasons the state can justify these prolonged pre-trial detentions, and even harder when you discover that the majority of these men don’t even have a case file.

One of the most devastating examples of unjustified pre-trial detention was the case of Boxten Kudziwe, who was recently found not guilty and released after a staggering seven years in Chichiri prison. Boxten had been held on remand since 2006 on the basis of a false confession signed after days of beatings by police.

To try to support these inmates, a small group of paralegals at the Centre for Human Rights, Education, Advice and Assistance (CHREAA), headed by Executive Director Victor Mhango, have been working hard for the past 12 years to educate prisoners on their basic legal rights and assist them in applying for bail whilst waiting for trial. Since January 2012, I have also worked with CHREAA to help establish an access to justice project, focusing on educating arrested persons on their right to bail using booklets, audio tapes, and a 24/7 toll-free paralegal advice line. By informing those arrested of their right to bail prior to their first court appearance, the aim is to increase the number of bail applications granted and consequently reduce the large number of people unnecessarily held in pre-trial detention across Malawi.

Every defendant should be able to receive the “privileged” treatment of having legal advice and being able to apply for bail.

Justice, minister?

Earlier this month, former justice minister Ralph Kasambara was arrested in connection with the attempted murder of Paul Mphwiyo, the government’s budget director and a prominent figure within the Anti-Corruption Bureau. While updating his Facebook status from his prison cell, Kasambara’s lawyers were speaking with various judges across the country to arrange for his bail application to be heard as quickly as possible.

His case was submitted to the High Court on 11 November. However, his bail hearing was unexpectedly delayed until 22 November. Then, in a surprise verdict last week, Justice Esme Chombo chose not to release Kasambara on bail and ruled that he should remain in custody for another 30 days to give the prosecution time to finalize their preparations for trial.

This could be interpreted as the judiciary taking a stand against the rich and well-connected. But this seems unlikely. Instead, it probably has more to do with Malawi trying to show it is taking a strong approach to Kasambara’s charges as it tries to convince its aid donors it can be trusted. Many international partners suspended budget support in light of Cashgate and want to see signs that the country is dealing with high-level corruption before it restarts its aid programs.

In an unexpected twist of fate then, Kasambara finds himself on the other side of the justice system he once oversaw. He may well be wishing he’d done more to change things when he had the chance.

(First published by Think Africa Press and used here by permission)