Access to counsel in Malawi; a matter of theory than reality

By: Akometsi

World Day Against the Death Penalty, commemorated on 10th October every year, is a day to advocate for the abolition of the death penalty and to raise awareness of the conditions and the circumstances affecting people with death sentences. Each year, a theme is chosen that speaks to the issues that arise from imposition of death sentences.

This year’s theme being on “Access to counsel: A matter of life or death”, Reprieve hosted a workshop on obstacles to effective counsel in Malawi, with break-out sessions to strategize solutions to overcome these barriers.

There was consensus among the participants of the workshop that without access to effective legal representation during arrest, detention, trial and post-trial, due process (fair trial) cannot be guaranteed. In a capital case, the consequence of lack of effective legal representation being death, the duty is absolutely higher.

The right to legal representation is enshrined in Malawi’s domestic and international law. Unfortunately, as echoed during the workshop this right is often denied to people who are most vulnerable and in need of protection. Death sentences continue to be handed down in Malawi, currently at a spike rate, in spite of barriers to effective counsel.

During break-out sessions, participants established that, competent and effective legal representation is critical at every stage of a capital defence case; from arrest, police interrogation, court hearing to detention. If a suspect does not have legal representation, they are more likely to be tortured in police custody, denied bail, receive an unfair hearing and ultimately are more likely to be sentenced to capital punishment.

Fresh from Henry Dickson’s testimony in the workshop, it was appreciated that death row inmates in Malawi have many things in common, most notably that they come from the most marginalised (poor) sectors of society.

Taking the floor, Judge Prof. Redson Kapindu laid the legal framework on the right to legal representation as entrenched in the domestic and international law. Commenting on the case of Willias Daudi v the Republic, Constitutional Case No 1 of 2018, the Judge analysed the reasoning of the judges on the Court’s/prosecution’s duty to advice an accused person of their right to legal representation and that failure to do so may have implications on the fair trial.

He wondered how failure to inform the accused of their right to legal representation can be violated thereby affecting the right to fair trial without rendering the entire proceedings unfair, as the majority ruled in this case.

Professor Kapindu lamented the fact that this case did not find itself to the Malawi Supreme Court of Appeal, for final settlement of the position of law on this issue. He concluded by stating that ‘the key challenges on access to counsel in Malawi lies in two limbs; the first being that consultations is a challenge as Counsel is not accessible to the majority of Malawians and secondly, on experience of counsel being a critical issue needing addressing in homicide cases.

The highlight of the workshop/training was Henry Dickson who narrated his story from arrest to him being sentenced to death. Being the key-note speaker, he testified that he was arrested in 1992 when he was 16 years old in connection of a robbery that happened where a person died. Upon arrest, he spent 21 days without being told the reasons of his arrest and was tortured on daily basis to the extent that one accused person died from a gun-shot wound inflicted by the police.

He was forced to confess as having committed the offense and it was only 5 years later (1997), two months before the actual trial when a lawyer from legal aid visited us in prison to inform us that he was our lawyer and that he would speak to us. Mr Dickson disclosed to the audience that he felt that his story could not be properly presented to Court, as his two co-accused were being represented by the same lawyer, despite them having different stories, conflicting.

It was hence no surprise that all were sentenced to death, despite Henry being innocent and a minor at the time of the alleged commission of offence. On the impact of effective legal representation Henry said; “Reprieve’s lawyers who assisted me in my resentencing trial knew my story, they did a thorough investigation, they even spoke to my family and I had a whole lawyer to myself which meant that I could tell my story freely without jeopardizing my co-accused case.

My release, was a resurrection, for I had died the moment I was sentenced to death. My mother cried when she saw me, they never thought they would see me again. Death penalty is evil, for it serves no purpose, and yet an innocent man like me, could have been hanged for murder I did not commit.”

In Malawi, the majority of those facing murder charges are represented by Legal Aid Bureau (LAB), hence it was refreshing to listen to the Director of LAB, Mr M. E. Chamkakala, who boasts an immerse knowledge on legal representation barriers and opportunities, being the first and only director of the institution, this far.

Addressing the participants in the training on “Barriers to effective representation, he alluded to the fact that legal representation is required from the point of arrest, to interrogation/interview, investigation and trial which ordinarily should include appeal.

He attested that barriers ranges from institutionalized attempts by police to deny the suspects legal representation, to institutionalized torture which they up to date is intended to be inflicted on the suspect uninterrupted.

The Director gave examples of instances of Counsel not being allowed to meet their client, as police push them from one police station to another. Counsel Chamkakala further highlighted the issue of accessibility of Counsel at all stages as a mountain on the highway, citing that LAB has 9 offices against 48 police stations and 32 prisons, which makes access to counsel at arrest, interrogation and investigation impossible.

Again, even at trial, he highlighted that LAB has 24 lawyers against a population of 18 million and that currently they are handling more than 16 000 cases. With such backlog, it is impossible to guarantee quality legal representation, to the demanded standard, especially in homicide trials, it was viewed.

Lastly, he bemoaned diminished scientific expertise /evidence for defence, and that the available public experts are wary to testify against the State. Despite the task being huge, solutions lie in “expanding legal training, recruiting more lawyers at LAB, capitalizing legal aid fund, effectively managing pro bono scheme under MLS Legal Practitioners and Legal Education Act and allowing paralegals limited audience in the courts (Magistrate)”, he concluded.

In concluding the workshop, deputy ambassador to the delegation of European Union to Malawi, Aurelie Valtat stated that the workshop revealed how much we can learn from each other. She postulated that justice is a concept that is intrinsic in every human being, such that from early age, we pursue just treatment, be it from our siblings or friends. ‘But when injustice leads to death, then thus a systematic injustice that needs elimination before it eliminates us”. She highlighted that whereas quality of counsel can be a shared challenge across the board globally, but access to Counsel should be a guarantee always thereby raising alarm on the workshop’s findings in Malawi.

The Deputy Ambassador revealed that through the Chilungamo project, EU supports the criminal justice system to the core, and that the project has shown that it is possible to improve through its achievement of turning over-population in prisons from 260% to 186%. On death penalty, Aurelie addressed that the absence of deterrent effect of death penalty and that the societies in which the sentence is used experience more violence, calls for political will to revisit the punishment. “Lack of inclusive access to counsel, barriers on technical expertise and the shift of direction on the matter from regional and international partners, calls for action.

Echoing Aurelie Valtat, the moderator of the workshop Alexious Kamangila, Reprieve’s fellow and volunteer of Sant Egidio, cemented that considering the challenges of our criminal justice system as revealed, it is clear that there is need for massive change and improvement. Whereas improving is generally required and should be pursued; “should the improvement be for the purposes of maintaining the death penalty, which clearly as shown serves no purpose? he challenged the participants. This training has clearly shade light that the majority of death sentences in Malawi are unsafe, marred by inaccessible counsel, challenged quality of counsel, lack of resources to ensure a fair trial properly so construed, discriminatory application on the basis of economic status and torture-tainted almost in all cases.

While we improve the criminal justice system, death penalty should be abolished in Malawi. Of course, we need more trainings in criminal law practice, and importantly a more active national conversation on death penalty.”

Following the Kafantayeni v Attorney General decision which struck down mandatory death sentence, Malawi made tremendous progress which saw Malawi Human Rights Commission and Reprieve (among other NGOs) lead the resentencing project. Of 158 people re-sentenced, none were re-sentenced to death and since 2014, 145 of the people formerly on death row have been released to their families having completed their new sentences. Which means, all 158 people were wrongly sentenced to death.

Between 2016 and 2019 no new death sentences were handed down and so the rejection of death penalty appeared to be increasingly achievable until from May 2019 to present, 1200% increment has been attained. Such retrogressive steps might become worse, as 50 cases are on trial with high likelihood of death sentence being issued out, considering the recent policy by judiciary on similarly matters.

Whereas the death-row currently has 25 inmates awaiting their executions, with a halt on clemency since 2005, the population is likely to tremendously increase. With the revelations of barriers in the criminal justice system being highlighted, and access to counsel floored by colossal barriers, serious questions to disparities and discrimination on death penalty implementation have been raise.

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