Exclusive on Malawians suspects left to rot in jail

By MacDonald Thom
The death of his wife on January 16 2014 in Mozambique, where he went to work in a tobacco farm, was a sad occurrence. He had just married her four months earlier.
He went to Mozambique with the wife’s uncle; but when tragedy struck, everything was shrouded in suspicion. Samson Kwananda had a list of suspects responsible for his wife’s death.
Little did he know that, to others, he was the suspect. They took Kwananda’s wife’s body to Malawi on January 17. But, when he arrived, he found himself in the hands of police officers who eventually took him to Maula Prison.
In this story, MACDONALD THOM exposes gaps in the country’s justice system, which has resulted in Kwananda spending close to half a decade on remand. He is not the only one.
From January 2014, days turned into months, months into years. And the counting continues. Every new day brings renewed despair to Samson Kwananda, who has resigned that to
the fate that trial in his murder case would never commence. Hopelessness is all he has.
“I am worried. The year 2014 is a long time. I do not know what is happening. Is it because I do not have money? Is it because of poverty? My wish was to have this case concluded so that I can have peace of mind,” he said.
Following his arrest, he only went to the magistrates’ court in Lilongwe, where he was told the reason for his arrest: murder of his wife. Thereafter the matter was committed to the High Court and he was told to go back to Maula Prison. Since then, the correctional facility has become his home.
Despite his current status, Kwananda maintains he is innocent.
“What happened is that on January 16 2014 she [Kwananda’s wife] died. I do not know what led to her death. Sometimes I think she was bewitched. I also think it is because she had a heart problem. I am not very sure. No postmortem was done. People just believe I killed her,” Kwananda said.
He has questions. People may accuse him of killing his wife, he may accuse others. But it is only the process that he has denied for close to five years that can prove his guilt or innocence.
But dumped and forgotten within the walls of Maula Prison, Kwananda seems to have resigned to fate.
“I am here, it is difficult to follow up on what is happening. My only hope are organisations that assist inmates in following up these issues. Since coming here, I am surviving by God’s grace,” he said.
The Daily Times understands that there are many inmates in the country’s prisons who have been on remand for many years. Some are waiting for trial, others are waiting for judgements, others sentencing.
Sources at Chichiri Prison indicate that Allan Francis Tebulo, who was remanded in 2007, had his murder trial concluded in 2013. Since then, he has been waiting for judgement. A related story is that of Stafford Vasco, who was remanded in 2006. His trial was concluded in March this year. He is waiting for judgement.
The Criminal Procedure and Evidence Code of 2010 introduced a 90-day pre-trial period custody time-limit. This entails that being on remand beyond 90 days is illegal.
A report by Paralegal Advisory Service Institute (Pasi), on Promotion of Adherence to Pre-trial Custody Time Limits in Malawi notes that, years after the amendment of the Criminal Procedure and Evidence Code, some accused persons in Malawi continue to languish in prisons awaiting commencement of trial beyond custody time limits.
The report highlights that camp courts for homicide remandees have reduce the number of remandees held in prisons in excess of custody time limits.
It states that, between November 2017 and April 2018, NGO Consortium, through Pasi, managed to release from prison over 200 remandees
“In six-month period the Consortium has facilitated the release from prisons of 225 homicide remandees some of whom have been in prisons for over 10 years,” reads the report which was submitted to Open Society Initiative for Southern Africa.
As people continue being on prison remand for many years, Malawi Prisons Service (MPS) continues grumbling over the problem of overcrowding in prisons.
MPS spokesperson, Mike Shaba, said the problem of lack of space is still affecting prisons.
“The number of inmates we have exceeds the capacity of our cells. If people are on remand for a long time, that worsens the problem. But we know there are a number of initiatives being implemented with the aim of easing the problem of congestion,” Shaba said.
Ministry of Justice and Constitutional Affairs spokesperson, Pilirani Masanjala, said there are many factors that cause delays in prosecuting cases.
“The prosecution of homicides involves four institutions: DPP [Director of Public Prosecutions], High Court, police and prison. And in most cases it also involves the Legal Aid Bureau when the accused can’t afford a lawyer. This is very common in homicide cases. It, therefore, requires that all involved institutions should be ready in order for the matter to proceed in court for completion,” he said.
He added: “The other side is that homicide trials take place where the offence occurred. So the High Court moves from Blantyre, Lilongwe, Mzuzu or Zomba and goes to the district where the offense was committed.”
Masanjala, however, said Ministry is trying to interface with stakeholders to quicken the processes.
“Currently homicide trials are taking place all over the country so that everyone should appear before court and know his [or her] fate,” Masanjala said.
Legal Aid Bureau Director, Masauko Chamkakala, said there are many inmates whose cases are taking long to be concluded.
He blamed the situation on resource constraints.
“We have a criminal justice system that needs more resources. The demand [for services] is so overwhelming,” he said.
Pasi is one of the non-governmental organisations (NGOs) trying to assist “forgotten” homicide suspects. Its Paralegal Coordinator, Chimwemwe Ndalahoma, said although they are assisting the people affected, more has to be done.
“We have visited the country’s prisons, trying to compile a list of people in that situation. We have even organised camp courts. Some [suspects] have been released on bail, others have been released unconditionally. We have heard of cases where people have been waiting for judgments for many years,” he said.
Like Chamkakala, he blames what is happening to some people on remand on lack of funding.
“Homicide cases are heard where they were committed. As such, they require a lot of money. It seems government is running away from its responsibility. The system that has become popular is camp courts. But this relies heavily on donor support,” he said.
In February this year, Chief Justice Andrew Nyirenda issued a directive that all pending judgements should be delivered by the end of September this year.
Supreme Court of Appeal and High Court Registrar, Agnes Patemba, said Nyirenda warned that judges who fail to comply would be punished.
It is now about three weeks since the deadline passed. Patemba was not readily available for comment on the latest with regard to judges’ compliance to the directive.
As Kwananda and many others are on remand for many years waiting for trial, judgements or sentencing, conditions in prisons are not good. A Police and Prison Monitoring Study which Malawi Human Rights Commission (MHRC) conducted in 2017 has revealed that there are still human rights violations in prisons and police cells in the country.
The MHRC study was aimed at assessing the extent to which Malawi prisons have adhered to the Gable Masangano case ruling of November 9, 2009 which determined that conditions of prisons in Malawi are unconstitutional.
Masangano sued Attorney General, Minister of Home Affairs and Internal Security and Commissioner of Prisons over living conditions in prisons.
Some of the key issues he said the prisoners are subjected to are insufficient or total lack of food stuffs, insufficient or total lack of cell equipment such as blankets, sleeping mats and mugs and that prisoners were harassed and physically tortured by warders in front of their relatives.
The MHRC report says there is a lot to be done to improve conditions under which people are detained and the enjoyment of their rights as detained persons.
The report observes that Maula Prison has a capacity of 800 but, at the time of the monitoring exercise, it had over 2,800 inmates while Zomba Prison had over 2200 against the capacity of 800.
It attributes the development to slow trials of people on remand, incarceration of people convicted of petty offences, among other factors.
MHRC Director of Civil and Political Rights, Peter Chisi said there is need to find ways of reducing the time people stay on remand as well as increase the capacity of prisons.
“What we have observed is that prisoners have stayed a long time, some of them even up to four years, without being tried. There is an assumption that a person who is on remand has not been convicted and therefore they have to be presumed innocent. Now, when you stay four years on remand, you have already been punished for a crime that has not been established. So there must also be a way of reducing time that the people can spend on remand,” Chisi said.
With delays in trial and no bail granted to them, or indeed delays in judgements or sentencing, Kwananda and many other “forgotten” remandees are being subjected to the conditions which were faulted by Masangano.

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