From overcrowding and inadequate resources to lack of rehabilitation, prisons across Africa face many challenges.

In Malawi, prisons are not only overpopulated but also underfunded, leaving inmates in inhumane conditions that violate their basic rights.

Despite a sustained lobby for better budgets and conditions, much work remains to be done.

Kenya’s recent reforms offer a compelling example on how Malawi can transform its prison system into a productive and rehabilitative institution.

Kenya’s initiative to turn prisons into industries is a model worth exploring.

The east African country has 135 prisons which house over 63 000 inmates.

The Kenyan government is shifting the prison system from mere confinement to rehabilitating offenders, training them in various trades and making prisons self-sufficient.

Kenya is enhancing inmates’ skills and making prisons financially sustainable by focusing on agriculture, carpentry, construction and other industries.

Malawi, which has 23 district prisons, can learn from this approach.

Kenya’s prison reforms include introducing vocational and agricultural training to ensure that prisons are not just places of confinement but avenues for rehabilitation and personal development. Already, 8 500 inmates have learned various trades and Kenya is expanding its prison farming programmes to produce food for the correctional facilities and the country.

In Malawi, there are similar initiatives, albeit scanty. With the aid of partners, the Malawi Prison Service runs a skills project focusing on barbering, tailoring, carpentry and bricklaying.

However, these initiatives are financially constrained and they lack infrastructure.

Expanding such programmes to cover more trades and industries would offer inmates the skills to reintegrate into society, reducing recidivism.

Moreover, vocational training can help underfunded prisons become more self-sustaining, as inmates produce goods that boost the economy.

Kenya’s prison industries have already made significant contributions to the economy, producing furniture, baked goods and farm produce.

For example, Kamiti Maximum Prison has Kenya’s largest prison furniture industry and has been involved in multi-billion shilling projects such as renovating Kenya’s National Assembly chambers.

Prisons also produce food through potato farming in Nyandarua and rice milling in Mwea.

Malawi’s prisons have the potential to adopt a similar model.

The idea of converting prisons like Mikuyu and Mwanza into farms, where inmates can grow crops, raise livestock and produce food for the broader market, is promising.

The K100 million allocated for establishing megafarms in the country’s prisons during the 2022/23 Mid-Year Budget review is a step in the right direction. However, this funding must be utilised effectively to expand production and create self-sufficient facilities.

By training inmates in agriculture and other trades, the country could reduce its dependency on external resources and ensure prisons contribute to national food security.

Kenya’s prison reforms include improving inmates’ living conditions and welfare.

These include better housing, medical care and diet as well as environmental and climate change mitigation efforts such as planting trees.

These changes not only benefit the inmates but also reflect a rights-based approach, ensuring that inmates are treated with dignity and respect.

Centre for Human Rights Education Advice and Assistance (Chreaa) and the Southern Africa Litigation Centre (Salc) have long advocated improved prison conditions in Malawi.

The revised prison budget in the 2022/23 mid-year national budget review, which increased the prison food budget, is a positive step.

However, the current living conditions in many prisons remain dire, with overcrowding and low access to healthcare.

Malawi must prioritise improving these conditions to ensure that prisoners’ rights are respected and create a favourable environment for rehabilitation and productivity.

Kenya’s reforms are anchored in legal and policy changes aimed at improving prison governance. This includes reviewing the Prisons Act, the Borstal Institutions Act and the Community Service Orders Act.

In Malawi, passing of the long-awaited Prisons Bill could serve as the foundation for comprehensive reforms.

The proposed law would modernise the legal framework governing prisons for better oversight and management of emerging industries and rehabilitation programmes.

Chreaa urges the Malawi Government and all stakeholders to support reforms that prioritise prisoners’ rights, welfare and rehabilitation. n

*The author is the Chreaa executive director

31 July, 2024

By Llyod Chitsulo

Human rights organisations, including the Malawi Legal Aid Bureau, have praised a High Court ruling that gave 30 days for the State to deport illegal immigrants.

The ruling, delivered at the Mzuzu Registry,  followed a case brought before the court by 25 immigrants who were illegally detained at Mzuzu Prison and, during routine prison visits between July 2 and 4 this year, the Malawi Legal Aid Bureau discovered that over 100 illegal immigrants were kept there.

The immigrants were being kept despite their remand warrants having expired in January this year while others had finished serving their respective sentences; hence, being detained illegally.

In a joint statement yesterday, Centre for Human Rights Education, Advice and Assistant (Chreaa), Southern Africa Litigation Centre (Salc) and Malawi Legal Aid Bureau, described the ruling as a progressive, stressing that people should not be detained indefinitely.

Chreaa executive director Victor Mhango said a huge number of undocumented immigrants continue being detained in the country’s prisons for indefinite periods.

He said: “Sometimes the number of immigrants is equal to the prison’s capacity.

“This puts undue pressure on the prisons which are already overcrowded and do not have enough food to feed prisoners.”

Salc criminal justice cluster lead Chikondi Chijozi said it is commendable that the Malawi Legal Aid Bureau took up the matter having observed that there were many immigrants that are detained illegally in prisons.

“The judgement is progressive as it urges the State to consider alternative options such as issuing temporary permits, release on bonds/recognisance and encouraging self-repatriation,” she said.

Malawi Legal Aid Bureau assistant director Chimwemwe Chithope Mwale also expressed delight at the ruling. He said Legal Aid Bureau was compelled to take up the matter as it was concerned about the situation.

He said: “When we visited Mzuzu Prison and found that over 100 immigrants were being detained, we were concerned with the overcrowding in the prisons and our assessment of the cases showed that they were illegally detained and we decided to challenge that.”

In his ruling on Monday, Mzuzu High Court Judge Justus Kishindo said under the Immigration Act, 30 days ought to be ample time within which undocumented immigrants ought to be deported.

He ordered that the State should provide to the court a progress report on the steps taken to deport the illegal immigrants and further sustained an order that children should not be detained in prison.

Chithope Mwale represented the immigrants in the case with support from Chreaa and Salc.

22 July, 2024

By Thomas Kachere

Patricio, now 45, does not remember the year 2003.

“I was in prison that year, when prison conditions were bad. This is despite that some of the convicts that are sent to prison do not serve prison sentences with hard labour while others are imprisoned with hard labour, depending on the magistrate’s pronouncements in court.

“That time, I was one of the prisoners who were serving sentences without the condition of hard. As such, we were supposed to be treated well, albeit this was not the case. We could, sometimes, be asked to go and slash the grass along the road. What makes me remember the year 2003 is that we were informed that the Prison Act was being reviewed and that, in some cases, inmates would be given a chance to earn an income while in prison,” he said.

However, Patricio came out of prison in 2018 without any progress on the issue.

Now the Ministry of Justice has said that the Prison Bill is in its priorities’ tray.

Ministry spokesperson Frank Namangale said they are aware of the challenges that are being faced by the Malawi Prison Service.

“There is that possibility [of taking it to Parliament]. It is one of the bills on our priority list,” Namangale said.

The Prisons Bill was first drafted in 2003 with support from Penal Reform International.

The exercise was meant to reform the current Act, which was enacted in 1956.

The current Prison Act predates the establishment of democracy in Malawi and the Malawi Constitution.

Due to worries that the bill which had been drafted was not reflecting socio-economic circumstances of that time, review exercises on the bill were suspended indefinitely.

In 2013, a renewed attempt to redraft the bill was supported through the establishment of a Special Commission of the Law Commission.

The activity was funded by UNODC, with a report and subsequent updates being published in 2018.

The bill moves away from the theme of retribution and punishment, which is ingrained in the Prisons Act of 1956, towards a more humane treatment of individuals through rehabilitation and reintegration.

It also includes suggestions of open prisons, halfway houses and prisoner release on temporary licence as well as the release of prisoners on parole.

It also removes corporal punishment.

Commissioner General of the Malawi Prison Service Masauko Wiscot confirmed that the bill has stayed for a long time without being taken to Parliament, a development that continues to put more pressure on their department.

The commissioner general also noted that the law commission report has created new divisions, which will help them to implement the new changes.

Further to that, the government has given them the authority to start recruiting officers to fill positions.

“We want the members of Parliament to support the bill when it goes to Parliament. One of the challenges that we, as a service, are facing is overcrowding in our cells and this bill introduces a new division of community correction, where it has the parole, public works and community service.

“Currently, the only way used to decongest our prisons is through pardoning. We feel if this bill is passed with the areas that have been introduced, it will help to decongest our prisons. So we would want the members of Parliament to support the bill once it is taken to Parliament because the Act we are using was enacted in 1956 and most of its provisions have been outlawed by the Constitution,” he said.

As at June 2024, the prison population was 16,536 against a capacity of around 7,000 individuals.

Meanwhile, Legal Affairs Committee of Parliament Chairperson Peter Dimba has said they, as a committee, are ready to support progressive laws in the country.

“The Prison Bill is one of the bills that is in our hearts. We have had this bill for more than a decade now and we have been talking about prison reforms for a long time. What is remaining is to take an action so that the bill is taken to Parliament and passed. “Otherwise, we are not happy that government has done nothing on this, apart from just talking. We, as a committee, will be engaging stakeholders on the issue. It is sad that we are the only one in the region with archaic laws governing the prison service. Our friends in Zambia have moved ahead on this,” Dimba said.

On her part, Southern Africa Litigation Centre lawyer Chikondi Chijozi has expressed worry that Malawi is still using archaic laws at a time several things have changed.

The guiding principles of the new bill, according to Victor Mhango, Centre for Human Rights Education, Advice and Assistance Executive Director, would incorporate rehabilitation, reintegration, social cohesion and reformation and states that conditions of detention shall be humane and in accordance with international human rights principles.

Mhango said through reintegration, released individuals can then contribute to the financial and economic development of the country and break the cycle of repeat offending due to poverty.

“The new bill will create a parole system which will help to alleviate the major overcrowding and inhumane conditions that detainees face currently and signal a move towards humane treatment and rehabilitation and reintegration of detainees guided by the Constitution and international instruments,” Mhango said.

According to Mhango, there is enough support from those within the Prison Service to enact the bill in order to help decongest prisons and improve conditions for those detained, leading to a better-functioning prisons system.

“Is it because it is talking about the prisoners? The process started in 2000 and we have seen bills coming and passing. But this bill was never taken to our Parliament, which means it is an issue of copy and paste from our colonial masters.

“Several things have changed. We have the 1994 Constitution, which has the Bill of Rights,” he indicated.

In 2018, the Malawi Inspectorate of Prisons found that “failure to provide adequate food and medical care is a serious breach of national and international legal and policy instruments and amounts to a breach of human rights”.

It further found that almost all prisons had failed to comply with statutory regulations where they were serving non-diverse diets of nsima with beans or peas, which is notably lacking in vegetables or meat.

Surely, these are indications of a prison system overtaken by events.

BY James Chavula

Two of the three arms of government, the Legislature and the Executive, risk contempt of court sanction for delaying to review colonial penal laws fuelling random arrests of the poor while the well-off go scot-free.

The risk comes after a July 22 2022 High Court of Malawi order issued in Zomba for the Executive and the Legislature to review Section 184 of the Penal Code by July 22 this year.

High Court Judge Zione Ntaba also ordered the two arms to report to the court on June 22 what they have done about the offences deemed petty and discriminatory by activists.

When The Nation asked both the Ministry of Justice and Parliament on the status of implementation of the orders three weeks before reporting to court, the duo could not outline the steps so far taken.

On behalf of the Legislature, Speaker of Parliament Catherine Gotani Hara said: “Our understanding is that the court order was directed at the Ministry of Justice because we don’t generate Bills. Parliament was only mentioned because the House has the duty to debate proposed laws from the Executive and private members.”

However, the court ruling stated: “The Executive through the Ministry of Justice [the Attorney General, Director of Public Prosecutions and Chief Legislative Counsel as well the Ministry of Home Affairs [now Homeland Security] and Inspector General and the Legislature through Speaker working with the relevant committees should within 24 months from the date hereof, effectively review the entire Section 184 of the Penal Code and effectively amend the provisions, especially those declared unconstitutional in a manner that ensures consistency with the Constitution and to take care of any unintended gaps in the law.”

The judge warned the said officers, including Attorney General Thabo Chakaka Nyirenda, that the court judgement “remains a valid order” unless vacated and “non-compliance of the same is contempt”.

On the steps the Executive has undertaken, Ministry of Justice spokesperson Frank Namangale said: “We are mindful of that court judgement. We are taking care of this.”

Since Malawi attained self-rule from Britain in 1964, policymakers and lawmakers have missed critical junctures to modernise laws in line with the wind of change, the Bill of Rights, Malawians’ aspirations and international obligations.

Periodically, some citizens have risen to challenge repressive laws as did nightclub DJ Henry Banda, imbiber Ishmael Mwale and roast meat vendor who were randomly arrested alongside 20 others in Kasungu on March 27 2018.

In the Constitutional Court ruling, Ntaba abolished the sweeping arrests of the Kasungu trio as unconstitutional, a breach of human rights and the State’s departure from its duty to protect all citizens.

Strangely, the court in 2017 had declared the offence, commonly known as vakabu (rogue and vagabond), unconstitutional after vendor Mayeso Gwanda challenged his wee-hour arrest on his way to buy fish.

The vendor who brought changes to the law said he was appalled that the police shoved him into a vehicle driven by someone who went scot-free despite being equally on the prowl the morning he was detained.

Lawyer Chikondi Chijozi represented Gwanda and the Kasungu petitioners with support from the Centre for Human Rights Education, Advice and Assistance and Southern Africa Litigation Centre.

She questioned government arms’ failure to table the law review in Parliament, wondering when they realised the court order was misdirected and what did they do about it.

Some lawmakers have lamented Parliament’s delays to facilitate the review of Section 184 of the Penal Code, which provides for the offence of rogue and vagabond. The development has since riled human rights defenders.

In 2018, three people from Kasungu challenged police sweeping exercises after they were arrested for the offences of rogue and vagabond.

High Court Judge Zione Ntaba then overturned the earlier conviction of the applicants and ordered that their fines be returned and that they also be compensated.

In the case, which was supported by Southern Africa Litigation Centre (SALC) and Centre for Human Rights Education, Advice and Assistance (CHREAA), Ntaba ordered Parliament to quickly review the provision under Section 184 of the Penal Code.

She went further to refer to the High Court’s previous decision, in the case involving the State and Mayeso Gwanda, where it made the same order.

Ntaba reiterated that the laws had to be reviewed.

The Court also expressed concern that no action had been taken by the Legislature to make sure that the review of the laws was done.

The Court then ordered that by July 22, 2024, Section 184 of the Penal Code and other laws that violate human rights should be reviewed.

But after 22 months from the time the Court made its orders, some lawmakers have confided in us that nothing has happened on the issue.

“We do not know anything to that effect,” said a member of the Legal Affairs Committee of Parliament.

Another lawmaker, who is not in the Legal Affairs Committee, corroborated the sentiments, saying, so far, they have not been told anything about the issue.

Meanwhile, lawyer for the applicants, namely SALC’s Chikondi Chijozi, has expressed worry over the development.

“If you recall, the Court had given Parliament 24 months to review Section 184 of the Penal Code, which provides for the offence of rogue and vagabond and now we are in the 22nd month and we have not seen any progress. However, according to the court order, Parliament is supposed to report to the Court by June 22, 2024 on the steps it has taken to review the said section. So far, we have not heard or seen any progress; so, it is quite worrying to note that nothing has been done on the issue to comply with the order,” Chijozi said.

Parliament spokesperson Ian Mwenye referred us to the Ministry of Justice, whose spokesperson Frank Namangale asked for ample time before he could comment on the issue.