No children to be detained in prison
The Bill under section 60(1) completely prohibits admission into prison of any child in conflict with the law under any circumstances. This aligns with the Child Care Protection and Justice Act which prohibits the imprisonment of children. This was reaffirmed by the High Court in 2018 in the case of R v Children in Detention at Bvumbwe and Kachere Prisons.

Health care for pregnant women and oversight of social welfare officers over unweaned children detained with their mothers
Section 61 of the Bill introduces a new provision for the admission of pregnant women and places a duty on the officer-in-charge of prison to ensure a pregnant woman is placed in a prison close to a medical facility that can provide the necessary medical service associated with the pregnancy. This aligns with Article 14 of the Maputo Protocol which obligates Malawi to ensure that the right to health of women, including sexual and reproductive health, is protected. The Bill expands on the requirements for admission into prison for unweaned children. Section 62 introduces the best interests of the child principle and requires that the admission of an unweaned child should be done on the recommendation of a social welfare officer who shall also recommend to the Chief Commissioner when the child should leave the prison. The Bill further protects the identity of those children by requiring the prison officer to keep under seal a record of unweaned children. However, the Bill takes away the requirement of provision to unweaned children of clothing and necessities at the State’s expense, which is provided under the current Prison Act. This poses a significant threat to the health of the child. Where family is unable to take care of the child, and the child remains with the mother in prison for up to three years, providing food, nappies, clothing and bedding is critical. This ought to be the duty of the State as circumstantial children are the direct result of the State’s decision to incarcerate the mother.

Humane conditions of detention
The Bill under section 71 introduces a new section on conditions of confinement of prisoners. It focuses on human dignity by requiring the Chief Commissioner to ensure that prisoners are held in cells that meet minimum standards and requirements for human dignity. This is an important provision considering that Malawi prisons remain overcrowded with an occupancy level of 236% against its capacity. The High Court in 2009 in the case of Masangano v Attorney General & Ors. already declared the current prison conditions to be inhumane. The Chief Commissioner of Prisons will be statutorily bound to ensure the decongestion of prisons in order to be compliant with section 71 of the Bill. Further section 73 of the Bill requires the Chief Commissioner to take reasonable steps to ensure that the holding capacity of a prison is not exceeded by transferring prisoners to prisons with capacity, or halfway houses and open prisons. The Chief Commissioner can further recommend to the Minister a list of prisoners to be considered for release on licence or parole and request a Presidential pardon, reduction, stay of execution, or remission of sentences. This means that once the Bill is passed into law, the Chief Commissioner will be statutorily bound to reduce the current prison population from 15000 to 8000, which is the holding capacity of Malawi’s prisons.

Right to health of prisoners
Section 74 of the Bill recognises the right to health of prisoners at the expense of the State or at their own expense. It further prohibits involuntary medical examination or treatment unless there is a significant risk to the prisoner and others. Involuntary mental health examination is only permitted under section 75 where there is no less intrusive alternative reasonably available and there is a significant risk of serious harm to the prisoner or others. Any forced feeding of prisoners is strictly prohibited under section 76 of the Bill unless by the order of the High Court on the application of the officer-in-charge of the prison.

Prisoners with special needs
Section 78 of the Bill creates an obligation on the prison to make provisions for the special needs of prisoners to ensure humane and dignified confinement in prison. This includes providing special diets to pregnant and old prisoners, sanitary materials, and related amenities. The definition of special needs includes prisoners who require special care because of physical, psychological, or medical conditions, age, mental or learning difficulties dietary problems, or chronic illness. The Bill however does not mention the needs of circumstantial children (children with their mothers in prison). The best interests of the child would require that the Bill makes specific provision for the education, recreation, and health needs of children who are in prison with their mothers.

Prisoners’ solitary confinement
The Bill under section 79 still maintains solitary confinement of prisoners. It should be noted that the Mandela Rules state that solitary confinement of more than 15 consecutive days is regarded as a form of torture. Although the Bill gives power to the officer-in-charge of the prison to terminate solitary confinement if a medical officer believes such confinement poses a threat to the physical or mental health of the prisoner, there is no maximum period for solitary confinement under the Bill. This then poses a risk of prolonged and indefinite solitary confinement which would be a violation of the right to freedom from torture inhuman and degrading treatment and punishment.

Access to legal advice
In another significant reform, under section 82, the officer-in-charge of a prison is obligated to inform on admission, every prisoner of their right to seek legal advice from a legal practitioner of their choice, where it is required in the interests of justice, to be provided a legal practitioner at the expense of the State. If this provision is passed into law, it will significantly improve access to justice for prisoners who overstay on remand or await judgments for a long period without recourse to legal representation.

Labour performed by a prisoner
It is interesting to note that section 84 of the Bill introduces labour fees for prisoners. A prisoner at the approval of the Chief Commissioner, may engage in labour within or outside the prison at a fee or other consideration. Section 85 establishes a Prisoners Labour Fund which shall among other things be used for reintegration of prisoners back into society on completion of sentence. The composition of the Labour Fund Committee however only comprises of prison officials and does not have prisoners’ representative or an external person to provide checks and balances for the Fund.

Compassionate release of terminally ill prisoners
Section 119 of the Bill empowers the Chief Commissioner to petition the High Court for compassionate release of a prisoner who has been certified by an ad-hoc committee of three medical practitioners that the prisoner is terminally ill. Further section 120 of the Bill empowers the Chief Commissioner to recommend to the Minister or the President that a prisoner be considered for pardon, release on parole, or licence where it is certified by an ad-hoc committee of five medical practitioners that the prisoner needs home-based care.

Release on licence
Section 121 of the Bill empowers the Minister to release a prisoner sentenced to life imprisonment on licence after consultation with the Chief Commissioner. The Minister has the power to recall the prisoner to prison and the licence would cease to have effect. The Bill however does not have clear guidelines to safeguard against abuse of power by the Minister in giving and recalling the licence. Section 122 permits prisoners to apply for release on a temporary licence through the officer-in-charge, sixty days before the proposed date of release. The officer-in-charge shall consider among other things the good behaviour of the prisoner, their likelihood to return to prison, the sentence already served, resources for monitoring the prisoner, and if the prisoner is in the category of prisoners excluded from release on temporary licence. The Minister has the power to grant the temporary licence on the recommendation of the Chief Commissioner and any decision to grant or refuse the temporary licence shall be communicated in writing with reasons.

Release on parole
Section 123 of the Bill establishes a Parole Board which is chaired by a retired Chief Commissioner, with members being one member of good standing in the community, an officer of the rank of Commissioner in Service, a prison chaplain, a psychologist, a psychiatrist, and a parole officer. The Board will among other things select and place prisoners on parole. Under section 130, a prisoner who is not disqualified by his or her sentence and has exhibited good behaviour may apply to the Board to be released on parole. In terms of section 131 where an application is refused, a prisoner can re-apply if new grounds to support the application have arisen. The Board has powers under section 133 to revoke the parole licence and inform the Chief Commissioner to take the prisoner back into custody if it is discovered that they were not eligible for parole or they have contrived the conditions for parole. The High Court has powers under section 134 to review the decision of the Board to deny or revoke a parole licence and a prisoner can make an application for review within thirty days of receiving the decision of the Board.

Inspectorate of Prisons
The Bill makes provision for the functions of the Inspectorate of Prisons under section 138 and sets up the secretariat of the Inspectorate under section 140 which is headed by the Executive Secretary. The Bill also sets up the Funds of the Inspectorate which is a positive development considering that the Inspectorate despite being a constitutional body did not have any established funds to discharge its important constitutional mandate. The Bill therefore increases the independence of the Inspectorate, allowing it to better fulfil its oversight functions. The Bill, however needs to provide for accountability of the Inspectorate by ensuring that visits are conducted as required by the law and the Inspectorate should be able to inspect the prisons where need arises without being restricted to quarterly visits.

Independent prison visitors
The Bill also introduces another oversight mechanism of independent prison visitors under section 143 of the Bill. A person with a demonstrable interest in the affairs of prisons, can make an application to the Inspectorate to be an independent prison visitor. The Inspectorate will assess the application and look at the suitability of the person as an independent prison visitor by consulting with community organizations. The Minister shall publish in the Gazette the names of persons appointed as independent prison visitors. The Independent prison visitors have duties under section 144 of the Bill to visit prisons in which they are appointed, at least once every two months, and visit parts of the prison. Problematically, the Bill provides that female independent visitors may visit only those parts of each prison set aside for the detention of female detainees. Although this provision might be for the protection of female independent visitors, it might limit the inspection of male prisons in an area where there is only a female independent visitor. Similarly, it does not place the same limit on male independent visitors to not visit female facilities. Instead, any independent prison visitor should have access to all sections of a prison and be provided with their own security during this inspection. Prison visitors can also test the quality of the food for prisoners and inquire into the complaints of prisoners. The Minister is mandated to make regulations for the operation of the duties of the independent prison visitors.

Visitors Committee
The Bill under section 145 sets up visitors’ committees which are established by the Inspectorate for a particular area consisting of independent prison visitors appointed for the prisons in that area. The Committee is mandated to meet at least once every three months to determine complaints of prisoners not resolved by the officer-in-charge, submit to the Inspectorate complaints that they fail to have resolved, schedule visits, promote the interests of the community in prison matters, and submit reports to the Inspectorate.

List of remanded prisoners and those whose sentences have not been confirmed
Under section 161, the officer-in-charge is obligated to provide the High Court during the session of the Court, a list of remanded prisoners and those whose sentences have not been confirmed within his or her prison. This provision will address the backlog of cases of prisoners who overstay on remand or complete their sentences without being reviewed by the High Court.

Is the Bill a win?
The Bill has brought a lot of transformative provisions that will significantly reduce overcrowding in prisons, improve access to justice, and protect of rights of prisoners if it is enacted into law and fully implemented. However, there are still some gaps, that must be addressed concerning the protection of circumstantial children, solitary confinements, management of the Labour Fund, effective prison oversight, and adequate nutrition. This Bill when passed into law will require adequate resourcing by the Government to fully implement it.

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.

“We are happy with the High Court’s judgment because we have seen a huge number of undocumented immigrants being detained in prisons for indefinite periods. 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.” Said Victor Mhango, the Executive Director of CHREAA.

Commenting on the judgment, Chikondi Chijozi, said “It is commendable that the Legal Aid Bureau took up this matter “having observed that there are so many immigrants that are detained illegally in prisons. The judgment is very progressive as it urges the State to consider alternative options such as issuing temporary permits, release on bonds/recognisance and encouraging self-repatriation.

“As the Bureau, we are very happy with the judgment of the Court. When we visited Mzuzu prison and found that over 100 immigrants were being detained at Mzuzu Prison with the offence of illegal entry, we were concerned with the overcrowding in the prisons and our assessment of the cases, showed that there were actually some immigrants that were illegally detained and we decided to challenge that,” said Chimwemwe Chithope Mwale, Assistant Director of the Bureau, who represented the applicants.

Background

The Case was brought by 25 immigrants who were illegally detained in Mzuzu prison. During its routine prison visits, the Legal Aid Bureau between 2- 4 July discovered that there were over one hundred persons of foreign nationality incarcerated in Mzuzu prison for the offence of illegal entry into Malawi. The Applicants have been under illegal detention as they continued to be detained in Mzuzu prison despite their remand warrants expiring in January 2024, and others are still being detained even though they had finished serving their sentences and were supposed to be deported by 26 June 2024. The Applicants were represented by Counsel Chimwemwe Chithope-Mwale of the Legal Aid Bureau with support from SALC and CHREAA.

For more information contact:

SALC: Chikondi Chijozi, +265888647847 or chikondic@salc.org.za

Legal Aid Bureau: Chimwemwe Chithope Mwale,+265999421873 or cmwale@legalaidbureau.org

CHREAA: Victor Mhango, +26599952256 or victormhango@chreaa.org