CHREAA embarks on Civic Education Drive across the Southern Region

Since last week, staff and volunteers from CHREAA have been traveling across the Southern Region of Malawi, educating prisoners on how to exercise their right to vote in the upcoming tripartite elections on May 21. So far we have visited prisons in locations including Chichiri in Blantyre, Thyolo, Makande, Chikwawa, Zomba, Mangochi and Domasi. We will be conducting educational sessions with prisoners throughout this week and into the next.

On our visit to Chichiri Prison last week, Executive Director Victor Mhango and Monitoring and Evaluation Manager Siphiwe Malihera provided inmates with information about what the ballots will look like on Election Day, and how to correctly input their vote for President, for their Member of Parliament and for their City Councillor. Victor and Siphiwe then took questions from the inmates on a wide range of topics – many of these questions raised important issues and concerns about the voting process. (For more information about what the prisoners asked, read this recent article in the Daily Times: https://www.times.mw/prisoners-feel-sidelined-from-may-21-…/)

Following our visit to Chichiri, CHREAA’s teams have been touring prisons across the Southern Region for our Civic Education Drive. (In addition to our continuing legal advocacy work on behalf of prisoners.) All Malawians including incarcerated persons have the right to participate in the democratic process, and the staff and volunteers at CHREAA are excited to help achieve greater voter participation among all segments of our society, including among the most disenfranchised.

Pettyoffencesorg Newsletter-1

Opening campaign on screening, prevention and control of Tuberculosis (TB) in Chikwawa Prison

CHREAA is implementing a project which is aimed at raising awareness on the TB related risks being faced by prisoners and increase advocacy for TB screening and quality health services in prisons with funding from the Aids Alliance for Southern Africa (ARASA).

On the 5^th of June 2018 CHREAA started the opening campaign for the project in Chikwawa Prison which faces the same problems like most prisons in Malawi: they are congested with inadequate ventilation, provide inmates with an inadequate diet frequently resulting in malnutrition and they have a higher prevalence of HIV than the surrounding communities. As a consequence, these prisons are a high prevalence setting for TB. Due to a lack of resources, discrimination and stigma, Malawi prisoners are a neglected and vulnerable population that has limited access to basic healthcare.

Prisoners showing in a play how their health is affected by the problematic conditions in the prisons.

CHREAA with the support of ARASA is rising awareness on this issue and increase advocacy for TB screening and quality health services in the prisons to tackle the problem.

 

 

 

 

 

 

 

 

 

Final Judgment on the case of children in detention at Bvumbwe and Kachere Prisons

Currently, children are in detention at Bvumbwe and Kachere Prisons either on remand or for serving sentences. This is against the Constitution and the Child Care, Protection and Justice Act. Therefore, on May 3^rd of 2018, the High Court of Malawi heard an application seeking for it to review the propriety of the orders for detention of the children. A final judgment has been made on the matter by the Hon. Justice Mr S.A. Kalembera of the High Court of Malawi on the 5^th of June 2018.

The application was argued by Fostino Maele and supported by numerous civil society organisations including Center for Human Rights Education Advice and Assistance (CHREAA) and the Southern Africa Litigation Centre (SALC). In fact, the High Court reviewed criminal proceedings from the lower courts and itemised the position of the law with the result that a child […] shall not be detained in prison.

More detailed, the High Court of Malawi ruled that it is indeed improper to detain children at prisons before or after a finding against them because [Bvumbwe and Kachere Prison] are no safety homes or reformatory centres. Furthermore, Second and Third Grade Magistrates usually have no jurisdiction over child justice courts unless they have been designated by the Chief Justice. Lastly, the High Court of Malawi ruled that it is improper to use remand warrants under section 250 and 265 and warrants of commitment under section 329 of the Criminal Procedure and Evidence Code in cases involving children because the Child Care, Protection and Justice Act provides otherwise.

 

Eventually, the High Court of Malawi gave the following instructions:

• All children that are detained in Kachere and Bvumbwe Prions pending trial […] shall be transferred to safety homes within 30 days
• Children against who a finding has been made shall be transferred to reformatory centres within 30 days
• Magistrates of grades lower than the First Grade Magistrate must not preside over child justice courts […]
• All orders made by Second and Third Grade Magistrates against children without being designated by the Chief Justice […] are null and void and are set aside and all children affected by these orders must be retried before a properly constituted child justice court within 30 days

 

This is a remarkable breakthrough and very much in the interest of the children as the prison conditions violate the children’s right to dignity and to be protected from cruel, inhumane and degrading treatment and punishment. Being transferred to safety homes and reformatory centres suitable for children will help serving their special needs and become productive members of society again.

Finally some justice accessed

Four murder suspects have been granted bail in the months of April and May 2018 after they waited for the date to appear before court for years.

One of them is Shadreck Jackson John, aged 32, who was finally granted bail today on the 3rd of May 2018 after being in prison for 10 years. All these years – almost a fourth of his life – he has been waiting for his court date to be set. Shadreck was working at his brother’s butchery before he got arrested for an offence he claims he did not commit.

The underlying crime happened in 2006 already when a person that Shadreck did not know before had been killed. Two years later, in 2008, the police arrested him although he claimed that he had nothing to do with the crime. While being in prison his brother who had children died and Shadreck had no chance to help his family during this hard time.

The other suspects who were granted bail recently are Frank Tepeya, Mike Chindiwo and Sankhani Tomasi.

CHREAA deputy director and also a lawyer, Chikondi Chijozi, is the one working pro bono on the bail \application cases and so far the four applications have been a success.

CHREAA conducts training for correctional officers in screening for mental disorders among offenders

On Thursday and Friday, 26-27^th April 2018, Centre for Human Rights Education Advice and Assistance organized a workshop in cooperation with Kamuzu College of Nursing to train correctional officers of the Bvumbwe, Chichiri and Zomba prisons in screening for mental disorders among offenders. The training aims at improving the mental health status of offenders by equipping correctional officers with the knowledge, skills and attitudes for screening mental disorders and make appropriate referrals.

Prisons throughout Malawi are overcrowded which results in a higher number of prisoners with mental disorders. Moreover, being in prison already exposes prisoners to different mental and psychosocial challenges, being in overcrowded prisons even increases the pressure. Therefore, there are chances that prisoners develop mental disorders while being imprisoned.

To help prisoners that suffer from mental disorders CHREAA executed this workshop in order to train correctional officers how to screen prisoners and refer those that have been tested positive to receive appropriate treatment in medical facilities. Moreover, they have been briefed about the health rights of offenders, characteristics and causes of mental health or mental illness, types of mental disorder, screening instruments and counselling and therapy.

On the second day of the workshop comprised a practical for all participants to apply the knowledge and instruments for screening and develop a routine on how to conduct the screening.

CAMP COURT ORGANISED BY MBP-CHREAA RELEASE’S 9 YOUNG OFFENDERS

On friday, 2nd june 2017,Malawi Bail Project (MBP) under Centre for Human Rights Education Advice and Assistance (CHREAA)  organized a ‘camp court’ that was facilitated by the Blantyre Child Justice sitting at Bvumbwe Young Offender Prison, releasing   total of 8 young offenders who had overstayed on remand for various offences.

Second Grade Magistrate Euphrasia Moyo and Magistrate Angella Dossi reviewed 18 cases whose warrants had overstayed and expired. Out of 18 young offenders that went before the court at that time 3 were discharged 5 were released on bail and 10  were adjourned for further hearing due to other circumstances pertaining to their  cases.

Among the young offenders who were given bail, a 17 year old boy Pangison Kafose was very relieved to have been granted bail since he has been at the prison since 16^th December 2016. He claimed to have appeared in court once and was then denied access to bail because his witnesses were a no show during the court session. He was glad that his nightmare finally came to an end. Pangison was in school before he got arrested and with this opportunity of accessing bail he says he is ready and set to continue with his education.

In the same events, a 22 year old Frank Fred was also released from prison. He was not listed for camp court but his case had overstayed.  He was arrested when he was 16 years old with offences of house breaking contrary to section 309(a) and theft contrary to section (278) Of the Malawi penal code. He stole a DVD player. The then Child Justice court that was sitting at Zomba ordered Mr. Fred on 12^th December 2013 to be sent to reformatory centre to be kept there until released on the recommendations of the Child Case Review Board. Mr. Fred explained that he was sent to Chirwa Reformatory Centre where served  two years, then he was later transferred to Bvumbwe Young Offender Prison where he continued to do so and no one came to update him concerning his per given order. Yesterday he pleaded with the Magistrates to consider his case. The Magistrates reviewed his case and Mr.  Fred was finally released.

MBP organizes these camp courts with aim to expedite justice delivery particularly to those with minor offences, whose remand warrants   expired, overstayed or accused sickly.

 

CHREAA HELPS WOMAN ACCESS JUSTICE

Following the appeal supported by Centre for Human Rights Education Advice and Assistance (CHREAA), The High Court in Blantyre (Malawi) has today ruled in Favor of a 66 year old woman Eliza Maduwazi Davison who was facing 2 years of jail time.

Eliza Davison was convicted on 15^th August 2016 by the Third Grade Magistrate court under section 6 of the Witchcraft Act for representing herself to be a wizard and was sentenced to two years of imprisonment.  Magistrate James Jakalasi found the woman guilty after a confession stating that she tried to kill her grandson Rafael Chimgama aged 25 by witchcraft or magically inserting an insect in his throat  which chocked him and instantly  made him stop to speak or drink water.

CHREAA offered to help Davison appeal against her sentence on the basis that some of the country’s laws conflict each other and that the woman might have then pleaded guilty due to ignorance. For instance section 6 of the Witchcraft Act; chapter 7 of The Laws of Malawi says “Any person who by his /her statements or actions represents him/her to be a wizard or witch or as having or exercising the power of witchcraft shall be reliable to a fine of 50 pounds or 10 years imprisonment with hard labour” but at the same time the constitution of Malawi says “anyone who accuses another of practicing witchcraft should be punished.

 

 

The SALC E-Newsletter Issue 21 Promoting Human Rights and rule of law in Southern Africa ———————————————————— http://mailchi.mp/c9aaaf9fd309/the-salc-e-newsletter-issue-21?e=87ce590aaf

In Malawi, SALC successfully intervened in the case of a person with
albinism who was being discriminated against on account of his disability.
In a huge win over laws which criminalise poverty, SALC together with
long-time partner CHREAA challenged the constitutionality of rogue and
vagabond offences in Malawi. In another strategic intervention to protect
land owned by an indigent mother and daughter, the Malawi High Court
confirmed that they were rightful occupiers with exclusive rights over the
land in question, which land has now been restored to the women. SALC also
intervened in an appeal in support of a young Malawi mother who was
convicted of the negligent transmission of HIV for breastfeeding a child.
The mother has been released from prison where she was incarcerated with
her infant child. SALC intervened in Malawi to challenge the suspension of
pregnant learners from learners attending schools.

**
Malawi: S v Precious Michael
————————————————————
SALC worked with the Centre for Human Rights Education, Advice and
Assistance (CHREAA) and a private lawyer, Daniel Kalaya, to review a
discriminatory sentence against a man with albinism. The appeal was heard
in the Thyolo High Court on 8 February 2017. Justice Kamanga delivered a
judgment on the same day. The Court set aside the appellant’s sentence
as unlawful and excessive, having exceeded the statutory minimum. The
Court, however, declined to declare that the lower court’s sentence was
discriminatory. A written judgment remains outstanding. Read more here
(http://southernafricalitigationcentre.us6.list-manage1.com/track/click?u=5f596c8c482afbd041982b18f&id=eb86ecc873&e=87ce590aaf)
.

** Malawi: State v Gwanda
————————————————————
SALC and the Centre for Human Rights Education, Advice and Assistance
(CHREAA) supported a case challenging the constitutionality of the offence
of being a rogue and vagabond. In March 2015, the applicant was arrested
by police whilst on his way to a market where he works as a street vendor.
He was charged with the offence of being a rogue and vagabond. Section
184(1)(c) of the Penal Code provides that “every person in or upon or
near any premises or in any road or highway or any place adjacent thereto
or in any public place at such time and under such circumstances as to
lead to the conclusion that such person is there for an illegal or
disorderly purpose, is deemed a rogue and vagabond.” The offence of
being a rogue and vagabond exists in the same wording in the Penal Codes
of many African countries and dates back to the era when these countries
were subjected to British colonial rule.

On 4 October 2016, the High Court heard substantive arguments by the
parties and amici curiae. Judgment was delivered on 10 January 2017
declaring the offence unconstitutional and invalid. The judgment was
widely reported on in Malawi and was also discussed at the African
Commission on Human and Peoples’ Rights consultation
(http://southernafricalitigationcentre.us6.list-manage.com/track/click?u=5f596c8c482afbd041982b18f&id=30428eb692&e=87ce590aaf)
on the draft principles on decriminalisation and declassification of
petty offences. In February, SALC and CHREAA met senior police
commissioners in Malawi to discuss the judgment and its impact. The
meeting led to a directive for the police to refrain from arresting
persons under the offence. Since then, CHREAA has visited police stations
and prisons to monitor whether there were any arrests under the offences
subsequent to it being declared unconstitutional. CHREAA and SALC also
arranged a training session with magistrates in Malawi in March to ensure
that they were aware of the recent judgments on the rogue and
vagabond, living on earnings of prostitution and HIV criminalisation
cases. Read more here
(http://southernafricalitigationcentre.us6.list-manage.com/track/click?u=5f596c8c482afbd041982b18f&id=786242026e&e=87ce590aaf)
.

A booklet summarising the judgments in SALC’s recent cases in Malawi is
available here
(http://southernafricalitigationcentre.us6.list-manage.com/track/click?u=5f596c8c482afbd041982b18f&id=1a1094325b&e=87ce590aaf)
.

**
Malawi: Prosecution of a Woman Living with HIV for Breastfeeding
————————————————————
SALC worked with the International Coalition of Women (ICW) based in
Malawi and a private lawyer, Wesley Mwafulirwa, to support an appeal
brought by a woman living with HIV against her conviction under section
192 of the Penal Code after breastfeeding a child. Section 192
criminalises any negligent act likely to spread disease. The woman
approached the Zomba High Court appealing her conviction and sentence and
challenged the constitutionality of section 192 of the Penal Code alleging
that it is vague and overbroad. The State agreed that the appellant’s
conviction and the sentence imposed on her should be overturned and set
aside. The appeal was heard by the Zomba High Court on 2 December 2016.
The Court, per Ntaba J, granted an order that the appellant’s identity
be concealed to protect her confidentiality and that of the children
concerned and released the appellant on bail pending the determination of
the appeal. On 19 January 2017, the High Court acquitted the appellant on
the basis that the charge against her was ambiguous and her plea
defective, noting the trial Court’s violation of her fair trial rights
and bias against her. Read more here
(http://southernafricalitigationcentre.us6.list-manage.com/track/click?u=5f596c8c482afbd041982b18f&id=adf7e8f7ef&e=87ce590aaf)
.

**
Malawi: Madikhula and Another v Goba and Another
————————————————————
On Friday 2 December 2016,  the High Court of Malawi, sitting in Mzuzu,
dismissed an action brought by the plaintiffs, a wealthy couple, against
two female defendants. The plaintiffs claimed that the land inherited by
the defendants, a single woman (57) and her widowed mother (87) from their
deceased father and husband respectively in 2006, was allocated to the
plaintiffs in 2010 by the Dwangwa Cane Growers Trust. The plaintiffs
sought a declaration that they were the rightful occupiers with exclusive
rights over the land in issue. The defendants were not aware that the
government acquired and leased their land to Dwangwa Cane Growers Trust
and were never consulted. The plaintiffs commenced this matter in the High
Court in November 2013, some three months after the Magistrate’s Court
declared that the property belonged to the defendants. The plaintiffs took
over the defendants’ only property, which was their source of income and
livelihood, forcing them into landlessness and
destitution.

On 2 December 2016, the High Court ruled that the Magistrate’s Court
that gave the land in issue to the defendants was a competent court with
jurisdiction to hear customary land matters. The High Court noted that the
plaintiffs who were aggrieved by the decision of the Magistrate’s Court
did not seek leave to appeal nor did they apply for a stay of execution.
Instead, the plaintiffs instituted a fresh action in the High Court to
circumvent the appeal process. Without deciding on the merits, the High
Court dismissed the matter and ordered the plaintiffs to pay the costs of
the proceedings. In compliance with the Mzuzu High Court decision, the
plaintiff surrendered a 2 hectares sugar cane plot to the defendants. On
2^ March 2017, the plaintiffs also deposited a sum of MWK 566,472-16 in
the Mzuzu High Court Registry to be paid to the defendants as partial
reimbursement for the value of the sugar cane that was sold while the
matter was pending in the High Court.  The defendants
were supported by SALC and Youth Watch Society. Read more here
(http://southernafricalitigationcentre.us6.list-manage.com/track/click?u=5f596c8c482afbd041982b18f&id=5cccbe57ac&e=87ce590aaf)
.

** ON THE DOCKET
————————————————————

** Malawi: ON and Others v Child Protection Team
————————————————————
SALC is working with Youth Watch Society (YOWSO) on a case involving the
suspension of several students from a school in Malawi over pregnancy. The
applicants filed for review of a Magistrates Court decision to fine
parents of students who were pregnant and those responsible for the
pregnancies. The applicants are also challenging the unlawful detention of
students and parents who were held in police cells for failure to pay
fines imposed on them, immediately. The matter was filed in the Mzuzu High
Court in November 2016 and argued on 2 May 2017. A summary of the case is
available here
(http://southernafricalitigationcentre.us6.list-manage.com/track/click?u=5f596c8c482afbd041982b18f&id=ee0cb67a99&e=87ce590aaf)

Find full details of the and other cases in the newsletter on the link posted above.

African Commission Grants CHREAA The Observer Status.

Source: African Commission Grants CHREAA The Observer Status.