SALC receives a disappointing judgement from Malawi on Prisoners’ Rights.

December 14, 2011

SALC has tried to support criminal justice reform in Malawi for the last four years. We have managed to work with attorneys and civil society to identify the most pressing issues and have supported cases that tests the right to a trial within a reasonable time, the right to bail, and we have fought for change to the law allowing juveniles convicted of murder to be sentenced   “at the pleasure of the President”.

In this period we have been disappointed by the judicial response to our litigation advocacy.  Members of the judiciary seem to be unwilling to engage on issues of criminal justice reform and do not want to acknowledge clear international and constitutional rights of a fair trial.

SALC supported the matter of Felix Paul v The Attorney- General. Briefly the issues in this matter were as follows: Felix Paul was detained whilst awaiting trial for murder since 2002. He was originally one of the applicants in the constitutional case on the right to a trial within a reasonable period of time that SALC tried to run in 2009 – 2010.  When we failed to get certification that the matter was a constitutional case from the Chief justice we proceeded to apply for bail for the individual applicants. Mr Paul was released on bail in 2010, to await trial, some 8 ½ years after being incarcerated. SALC then approached the civil courts to seek appropriate orders to remedy the breach of the right to a trial within a reasonable period of time, to seek a stay of prosecution and to seek compensation for an unreasonable length of detention. SALC advanced arguments that the length of time that Paul has been awaiting a trial means that it is no longer possible that any trial will now be fair and therefore the charges against him should be stayed.

The case was heard on the 27th June 2011. The state did not file a response to our legal submissions nor did they appear in court for the hearing of the matter.  Judgement was received on the 25th October 2011. (See full judgement on http://www.malawilii.org/mw/judgment/high-court-general-division/2011/10).

The judgement in this matter was very disappointing and it is SALC’s view that the judge stepped down into the arena from his position as an independent and impartial adjudicator and used the judgement to argue the state’s case for them. None of the applicant’s authorities are referred to or distinguished in the judgment. The judgement makes several egregious mistakes in interpreting the law and the facts. The judge has relied on a small section of an outdated judgement to fit his own personal view of what the outcome of the case should be.  The judge not only failed to consider whether the applicant was entitled to a stay of proceedings but also the constitutional and international fair trial rights as well.

 

 The failure of the state to defend the matter seemed to have prejudiced the applicant, instead of the state, in the matter. At several points in the judgement the judge assumes facts to support a rebuttal against the claims of the applicant, where no facts are presented from the state.  . SALC is concerned about this lack of impartiality and clear bias against the applicant. For a full critical analysis of the Felix Paul judgment see our legal analysis on the matter; http://www.southernafricalitigationcentre.org/library/item/analysis_of_the_judgement_in_felix_paul_v_the_attorney_general_malawian_high_court_misc_civil_cause_ . SALC will provide support for an appeal in this matter.

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