RIGHTS THAT ACCUSED PERSONS HAVE IN MALAWI CRIMINAL JUSTICE

SYSTEM.

All persons, whether adults or children suspected to be in conflict with the law are entitled to
fundamental rights. Human rights are universal guarantees which every person is entitled by
virtue of being human1. They cannot be taken away even for repugnant persons. Accused
person is one who has been formally charged or accused of a crime and is on trial for that
crime.2 This essay discusses rights that accused person have in the criminal justice system,
such as no detention for children suspected to be in conflict with the law, to be informed of
reasons for arrest and right to legal representation.

Firstly, the law affords protection to children suspected to be in conflict with the law. Inter
alia, section 95 of CCPJA restricts “detention of children awaiting findings, except where the
DPP satisfies the magistrate of the impending charge with a serious offence on which
sufficient evidence to prosecute is available, or to remove the child from undesirable
circumstance and if their release would defeat justice. 3 In which case, such detention shall be
in safety home.4 Safety home “means a place for reception, education, counselling and safety
of children before conclusion of trial or in circumstances requiring placement of a child for
care and protection.5

However, until now children are placed or remanded to police custody across Malawi. The
conditions of which expose them to hazardous environment. 6 Therefore, their best interest is
not taken into account as provided for under section 23 (1)(4) of the constitution of Malawi. 7
Also it is contrary to section 88 of CCPJA,8 as well as Article 3 of Convention on the Rights
of the Child.9 Similarly, this is a violation of other constitutional provisions such section 42
(1) (b) and section 42 (2) (g) (v) and (vi). These provides that, “detention must give due
regard to dignity; including the provision of reading and writing materials, adequate nutrition
and medical treatment”. And also the promotion of the child’s reintegration into society.

United Nations (2017). International Law Handbook: Collection of Instruments. New York: UN. Accessed at https://legal.un.org/avl.
2
Monson, J. (2014). Pocket Guide to Arrest and Detention in Malawi. Western Cape: Dullar Omar Institute. Accessed at
https://dullaromarinstitute.org.za/acjr/resources-centre
3
Child Care Justice and Protection Act No. 22/2010. Cap. 26:03.
4
Ibid. 3 above. Section 96.
5
Ibid. 3 above. Section 2
6
R v Children in Detention at Bvumbwe and Kachere. Review Case No. 21 of 2017
7
Constitution of the Republic of Malawi: sec. 23 (1)(4) “the best interests and welfare of children shall be a primary consideration in all
decisions affecting them and “children in situations of disadvantage shall be entitled to live in safety and security and, where appropriate,
to State assistance”.
8
Ibid. 5 above.
9
Convention on the Right of the Child. Article 3, sub-article (1)(2) and (3). Best Interest of the Child
However, safety homes are not provided for in police formations, hence promotes recidivism
rather than reintegration since child offender may learn from adults. According to social
learning theory, “observation and modelling play a role in how and why people learn”.10

Next, fair trial requires that accused person must be informed in a language which they can
understand, the reasons for their arrest. Also, that they have a right to remain silent, and to be
warned of the consequences of making any statement. 11 In spite, the Criminal Procedure &
Evidence Code, (CP&EC) provides a proviso, “[b]ut any omission by the police officer to
inform the arrested person of this right shall not render the arrest unlawful. 12 Further, the
fundamental principle of CP & EC is that “substantial justice should be done without undue
regard to technicality”,13 nonetheless, the omission may be remedied “if there has not been
miscarriage of justice.14

However, since this right is a constitutional right, provided for under section 142 (2)(a), the
constitutionality of the aforementioned proviso could be challenged in court since the
constitution is supreme and other laws are subservient to it.15

Finally, fairness requires right to legal representation. Section 42 (1)(c) provides for accused
person’s right to consult confidentially with a legal practitioner of their choice. More
importantly, to be informed promptly of this right and to be provided with the services of a
legal practitioner at the expense of the state. 16 Failure to uphold these requirements is an
infringement of the constitution. Also, the accused may feel undignified, less human or like a
second class citizen since other accused persons are afforded the right. For example, the
Legal Aid Bureau supports persons suspected of homicide or manslaughter. This is a
violation of human dignity,17 inequality and discrimination.18 It is clear that failure by the
state to provide a legal practitioner to defend the accused constitute a breach of constitutional
right to fair trial.

10
Nabavi, R.T. (2011). Bandura’s Learning Theory & Social Cognitive Learning Theory. https://www.researchgate.net
11
Ibid 7 above. Section 42 (2)(a). and CP &EC section 20A (6)
12
Section 20A (6).
13
Ibid. 12 above. Section 3
14
Dike Omeka & Henry Chima Amadu v R. Criminal Appeal No. 3 of 2003 (unreported)
15
Ibid 11 above: Supremacy of the Constitution: section 5, 10, 108.
16
Ibid 15 above. Section 42 (1)(c) of the Constitution of the Republic of Malawi.
17
Ibid 15 above. Section 19 of the Constitution of the Republic of Malawi.
18
Ibid 15 above. Section 20 of the Constitution of the Republic of Malawi.
Notwithstanding, the fore contention would not hold if the offences are not homicidal in
nature, for instance robbery.19 Also, government’s provision of legal aid may not be
discriminatory unless the accused demonstrates to the court that government’s failure to
inform about or provide a legal practitioner placed him at a disadvantage because of some
attributes that distinguishes him from suspects of homicides.

In addition, such suspects may not successfully plead miscarriage of justice due to
technicality, considering the facts of the case,20 and may not be considered fatal to warrant the
quashing of the conviction.21 Moreover, the technicality is one that is curable under section 3
of CP & EC.

This essay has discussed rights entitled to accused persons. Children are not supposed to be
detained unless for serious crimes, which nonetheless shall be in a safe home. Also, the
accused must be informed the reasons for their arrest in a language they can understand.
Finally, for the sake of equality, to be afforded legal representation. However, these
constitutional rights are violated, willy-nilly, as there are no safe homes to curter for children
and some provisions are an affront to the constitution, such as section 20A (6) proviso of CP
& EC.

19
Willias Daudi V R. Constitutional Review No. 1 of 2018 (Being Confirmation Case No. 784 of 2015)
20
Nthala & others v The Republic [2000-2001] MLR 356
21
Ibid. 14 above