Findings from Auditing Prisons in Malawi (Part 2): A Data-Driven Approach to SDG16.3.2

By Clifford Msiska, Director, Paralegal Advisory Service Institute (Malawi) and Adam Stapleton, Director, The Governance and Justice Group (UK)

The Justice for All report highlights the importance of putting people at the center of justice. This can be achieved by understanding their justice needs, preventing and resolving their justice problems, empowering them, and improving their justice journeys.

Authored by the Paralegal Advisory Service Institute (PASI) and the The Governance and Justice Group (GJG) the second blog in our Justice for All blog series summarizes the outcomes of the Malawi Prison Audit. It shows how a coordinated action (involving all justice stakeholders) can have an extraordinary impact in reducing the remand population when based on reliable data.

In our first blog, we described how paralegals from the PASI and Prison Officers worked together and conducted Prison Audits in a male (Maula) and female prison (Kachere)—both in the capital of Malawi, Lilongwe. The Audit found that poverty was a key determinant for people being held in prison (a finding cited in The Nation, a Malawi national media outlet). It also found 66 percent of male and female prisoners awaiting trial were eligible for release under Malawian laws.

Findings from the newest Prison Audit in fall 2023

In the meantime, PASI were requested by the Commissioner General of Prisons to conduct a further Prison Audit, this time in Mzuzu Prison (in the north), which was completed in October 2023 with the similar finding that 61 percent of remand prisoners (n103) were eligie for release.

These findings were presented to the justice actors in

Mzuzu and Lilongwe in November 2023 at a special meeting of the district Court User Committee (CUC). CUCs are chaired by the senior magistrate. The CUC includes senior police, state advocates, legal aid advocates, prison officers, and has secretariat support from PASI.

The CUCs in both districts agreed to conduct Camp Courts in Maula and Mzuzu Prisons to review the lists of eligible prisoners submitted by the Prison Audit teams.

Court User Committee meeting in Lilongwe. Courtesy of PASI.

What is a Camp Court?

A Camp Court is a mobile court sitting in the prison. It comprises a magistrate/judge and his/her clerk and prosecutor. The court is supported by PASI paralegals. They are courts to screen the awaiting trial caseload. PASI paralegals draw up a list of cases deserving attention, which they forward to the prosecutor and magistrate for appropriate action when the court visits prison. The Camp Court approach is borrowed from a practice developed in the Bihar state in India and has been functioning in Malawi prisons for over twenty years. The magistrate saves the prison the expense of transporting 50+ prisoners to court by attending in person to review lists prepared by the prison service and PASI.

Camp Court, Maula Prison, December 2023. Photo Courtesy of PASI.

Breaking down the Prison Audit numbers

With the support of PASI and funding from Irish Rule of Law International (IRLI), the judiciary conducted nine Camp Courts in Maula prison in December. Judges and magistrates reviewed 165 cases (assessed to be eligible for release by the Audit) and ordered the release of 108 (65 percent) whether conditionally (on bail) or unconditionally (by way of discharge). The breakdown is as follows:

TABLE 1

In the Mzuzu prison, PASI facilitated nine Camp Courts on December 8, 11, and 12, 2023. Magistrates and High Court judges sat to review the 170 prisoners on remand (including the 103 individuals identified by the Prison Audit as eligible for release).

Left: Mzuzu Camp Court, December 2023. Right: Mzuzu prisoners released by Camp Court. Photos courtesy of PASI.

The Camp Courts resulted in the release of 65 out of the 103 eligible prisoners. The Camp Courts also took pleas from those indicating a guilty plea. In this way, a further twenty-one prisoners were sentenced reducing the total remand population by 54 percent.

The breakdown appears as follows:

TABLE 2

Each Camp Court costs USD 120 to hold (covering travel and lunch for court and staff). In Maula and Mzuzu there were six Camp Courts for magistrates and three for High Court judges averaging twenty cases per court hearing, at a cost of USD 6 per case reviewed (cases cost between USD 10 per release in Maula and USD 15 per release in Mzuzu).

This is against the cost of keeping one person in prison for a month: USD 36—and taking no account of the benefit to the families by the release of these sixty-five individuals (almost all released detainees have families and children and were employed in some shape or form at the time of arrest).

PASI and the GJG have formed a coalition to take Prison Audits forward in other countries. The coalition includes: Penal Reform International (PRI), World Prison Brief (in the Institute for Crime and Justice Policy Research, Birkbeck, University of London), the Association for the Prevention of Torture (APT), African Policing and Civilian Oversight Forum (APCOF), Irish Rule of Law International (IRLI) and Coram International ational. The next step is to roll out Prison Audits to new countries.

About the Authors

Clifford Msiska is a Malawian national, lawyer and has been national director of the Paralegal Advisory Service Institute (PASI) since 2007. Previously he was first national and then Africa regional coordinator for Penal Reform International (PRI) responsible for fostering paralegal services as a legal aid service provider on the front-line of the criminal justice system (2000-2007). He has introduced paralegals in countries across Africa: in both civil law jurisdictions (such as Benin and Niger), as well as common law (Kenya, Sierra Leone, Sudan and Uganda) and in South Asia (Bangladesh). He was appointed Commissioner of the Malawi Special Law Commission on several key pieces of legislation including Legal Aid and Prisons. He holds a Masters in Law from Kyiv University. He is currently Chairperson, African Centre of Excellence-Access to Justice.

Adam Stapleton is a Director of the Governance and Justice Group (UK). Formerly a practicing criminal barrister in London, he has served as a human rights officer with UN missions in Cambodia and Rwanda and regional adviser to Penal Reform International from a base in Malawi. He was a Fellow of the Human Rights Centre at Essex University (UK), Visiting Professor of Law at Northwestern University (USA) and is a senior Justice adviser to the UK government’s Office of Conflict, Stabilisation and Mediation (OCSM). He has consulted for a number of governments and development agencies in the design and evaluation of criminal justice programes in over 25 African countries, in the Balkans and South Asia; as well as in highly fragile and post-conflict countries.