Over 8 600 inmates are in detention unlawfully because the High Court has not confirmed their sentences within legally stipulated periods, says a human rights group.
The number represents about 62 percent of the inmates in the country’s prisons, according to our calculations based on figures from the Centre for Human Rights Education, Advice and Assistance (Chreaa).
Chreaa executive director Victor Mhango on Tuesday said 8 693 are in prison illegally and condemned the court’s failure to review cases for potential confirmations.
Legal experts say where the High Court has not reviewed a sentence for confirmation during a stated period, the person concerned should be deemed free. That, however, is not what has been happening as most such people have remained imprisoned.
Apart from people being detained illegally, the inertia means that people who should not be in prison eat up jail space, which leads to congestions that have at times led to deaths of inmates.
But while acknowledging that some people committed to prison by lower magistrates’ courts have served longer than the periods in which the High Court should have confirmed their cases, the Judiciary this week could neither confirm nor deny the number of inmates that Chreaa said are still in detention well after their sentences were up for confirmation.
“Most of these prisoners are serving illegal sentences, more especially if they are serving beyond the two years in cases determined by a resident magistrate, one year for first and second grade magistrates and six months for third grade magistrate. Speedy review and confirmations of sentences from the lower courts is important.”
Mhango said inmates committed to prison by lower magistrate’s courts that have completed their initial two-year jail terms at the maximum are still serving longer sentences, especially those that do not have legal representation from the Legal Aid Bureau designed to assist poor people.
He said this is a violation of the law and of human rights, especially to prisoners that are not represented.
It is difficult for inmates coming from poor families to push for review of their cases, he said.
Prison Inspectorate chairperson Justice Ken Manda also confirmed on Tuesday in an e-mailed response that prisons had no legal mandate to hold inmates who had completed their initial sentences of two years.
“Technically, if a sentence is not confirmed beyond the periods which have been stipulated in Section 15(3) of the Criminal Procedure and Evidence Code (CP & EC),the person should be in prison for the period of two years, one year or six months, respectively, until the sentence is confirmed. Thus, if the sentences have not been confirmed beyond the stipulated periods, there would be no legal mandate for the officer-in-charge of a prison to keep an inmate whose sentence has not been confirmed,” said Manda.the law deems that Malawi Human Rights Commission (MHRC) chairperson Justice Dzonzi said on Wednesday the legal implications of the failure by the High Court to evaluate sentences passed by lower courts remained critical.
“The legal implications are that where a convict is sentenced by a Resident Magistrate Court [RMC] to a jail term exceeding two years, the officer in-charge of the prison has to treat the sentence as if it were a sentence of two years until the High Court confirms the original sentence as such. In a situation where there has not been any review including confirmation, the convict must be released upon expiry of two years,” he said.
Questions have been raised as to which entity is responsible for pushing for the review of sentences to take place but the MHRC boss said it was not specific.
“According to Section 15  of Criminal Procedure and Evidence Code, first the obligation is with the Magistrate Court to submit to the High Court for the review of the sentences. The High Court can on its own motion review sentences since it has general supervisory powers over Magistrate Courts. Convicts with legal representation can also initiate the review process. The State [Director of Public Prosecutions] can also initiate sentence reviews,” he added.
He, therefore, said in the present case, the liability falls within the State apparatus. Said Dzonzi: “The current scenario indeed does impact on the right to fair trial. Looking at the number of cases that have not been reviewed, definitely the issues of resources come into interplay. This assignment requires reasonable resources for it to be accomplished. But much as we can agree that lack of sentence reviews is one of the contributing factors to prison congestion, there are several other factors for the same.”
Judiciary spokesman Mlenga Mvula partly attributed the court’s failure to confirm the sentences to human resource constraints.
But he was quick to say that from November last year, the High Court has processed 471 cases.
“This [8 693] is a cumulative figure which can be traced to around 2010. The problem has been that we have had no assistants [interns] to assist in the confirmation of cases but also to help judges in conducting research on criminal cases. But since last year we have engaged some  at Blantyre registry. As of November 2015, the interns had prepared legal opinions in 471 confirmation case files,” he said.
“We are making strides to reduce the backlog as we had initially planned that by Easter 2016, we should have exhausted the backlog at Blantyre registry. With extra funding, we should bsuch as Zomba, Lilongwe and Mzuzu,” he said.
Clause 15 (3) of the code states that “any sentence of imprisonment upon a first offender which is not suspended under SSection 340, [the court] shall immediately send the record of the proceedings to the High Court for the High Court to exercise powers of review under Part XIII.”
Meanwhile, Chreaa’s Mhango has accused government of failure to comply with internationally agreed standards of prisoner welfare.
According to standard rules for treatment of prisoners adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Geneva in 1955, which was also approved by the Economic and Social Council among others, stipulates that prisoners should be given decent accommodation as in article 10, which says: “All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation.”
Apart from hygiene, the convention also emphasizes the need for authorities to give prisoners enough nutritional food as stipulated in part 20 (1) of the convention.
It reads: “Every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served.”
While part 22(1) charge governments to make available enough resources both in terms of qualified medical personnel and drugs to ensure that prisoners maintain health standards, challenges that have all been pointed out as critical in the country’s prisons. n