Dear President Banda
Re: An Opportunity for the New Malawian Administration to Demonstrate Commitment to Democracy and the Rule of Law and an End to High-Level Impunity
We would like to convey our condolences to you and the people of Malawi on the passing of President Bingu wa Mutharika. We write to you in your capacity as the current President of Malawi in order to urge you to use the opportunity presented to support democracy and the rule of law and to reverse the culture of impunity that was all too evident under the previous administration. We applaud your recent initiatives, demonstrably underlining that yours will be a different administration – in particular, your decision to appoint a high-level investigation into the death of Malawian student, Robert Chasowa.
The Southern Africa Litigation Centre (SALC) is a non-governmental organization based in Johannesburg, South Africa. SALC works to promote human rights and the rule of law in southern Africa and has been closely monitoring the recent attacks on democratic institutions and on human rights defenders in Malawi.
Malawi is heralded as a peaceful country and its ordered transition to multi-party democracy is much respected in the rest of southern Africa. However recent years have seen an increase in threats to and intimidation of civil society and perceived government opponents, culminating last year in unprecedented state-sanctioned violence against anti-government protestors and intensified harassment campaigns directed at civil society. The killing of protesters by police, the arrest and detention of civil society leaders and political opponents, the fire-bombing of their homes and workplaces, and the impunity with which police acted in these incidents all need to be addressed in order for Malawian citizens, and the rest of the world, to have restored confidence and faith in the Constitution of Malawi and its democratic government. Your leadership on the above issues is the key for recreating that confidence.
Reinforcing the Government’s Commitment to Freedom of Expression
The banning of the Weekly Times in 2010, the amendment of Section 46 of the Penal Code last year to allow the government to ban any publication it deems contrary to the public interest and the passing of the “Injunctions Act” by President Mutharika, despite a court interdict preventing the Act becoming law, all indicate a significant contraction of the right to freedom of expression in Malawi. SALC, like many, is encouraged by your dismissal of the Director-General of the MBC, believing this to be an indication of your commitment to reform the state broadcaster. However we urge you to review and repeal legislation passed during the previous two years which erodes freedom of expression and peaceful opposition in Malawi and to continue to reform the MBC to ensure that it becomes a truly public broadcaster.
Ensuring Accountability and Prosecution of Law-Enforcement Officials who Acted Unlawfully During the Civil Unrest of 2011.
State sanctioned violence was deployed against civil society protestors in July last year, resulting in the deaths of 19 protestors. In the aftermath, police officials intensified their campaigns of harassment and intimidation of persons perceived to be opponents of the President. In this regard, SALC applauds your decision to dismiss the Chief of Police, Peter Mukhito. We would emphasise, however, that his dismissal does not amount to accountability and justice in relation to the incidents of last year. Police brutality was widespread. Serious investigations and prosecutions must follow if justice is to prevail. Again, we note and support your appointment of an investigation into the death of student activist, Robert Chasowa but encourage you to broaden the investigation, allowing for all incidents of alleged police brutality in the 2011-2012 period to receive due consideration, scrutiny and as necessary, ensuing prosecution and/or disciplinary procedure. SALC also urges that victims and their families receive due compensation.
Guaranteeing the Safety of Human Rights Defenders and Political Opposition.
In recent months, Malawi has witnessed a horrifying spate of fire-bomb attacks. The houses of opposition politician, Salim Bagus, and civil society leader, Rev. MacDonald Sembereka, and the offices of the Institute for Policy Interaction were razed in firebomb attacks. It appears that the Institute was targeted because its executive director, Rafiq Hajat, was one of the activists responsible for organising the July protests. A private lawyer, Patrick Mpaka, has also been the victim of repeated firebombing attempts and the highly publicised arrest of Ralph Kasambara followed his apprehension of a group of men later found to be in possession of a firebomb. You are already on record as having condemned the arrest and detention of UDF member, Atupele Muluzi, which was similarly indicative of the oppressive conditions under which the political opposition was required to operate.
Those responsible for these campaigns of intimidation must be held to account: investigation and prosecution will not only allow justice for those targeted but underline that under the new administration, no one is immune or above the law. These processes will also demonstrate that your administration will neither continue nor condone the recent culture of violent repression of opposing views.
Ensuring that the Criminal Justice System is Functioning and the Remand Population is Significantly Decreased.
The closure of the courts over the past three months has resulted in a substantial increase in the already unacceptably high prison population. The egregious, often inhumane, conditions of Malawi’s prisons have been well documented.
During the judicial strike police continued to arrest and detain scores of people. In the period following their arrest and detention, many detainees have not had their core constitutional rights protected, including the right to be charged within 48 hours, under section 42(2) (b) of the Constitution, and the right to have their detention reviewed every 15 days, in terms of the Malawi Criminal Procedure and Evidence Code.
Most Malawian prisons experience severe over-crowding, and the new detainees will add to an already over-burdened system where many people have been awaiting trial for over three years. SALC urges your new administration to support the judiciary in ensuring that criminal matters are dealt with as speedily and effectively as possible, and to that end, ask you to consider endorsing innovative practices such as the holding of “camp courts” in overcrowded prisons – a practice not unknown in Malawi. In this way, those persons detained without being charged and without having had their detention periodically reviewed will be afforded recourse.
Effectively Continuing the Process of Reviewing Current Laws which Violate International and Regional Human Rights Standards
On 7 December, 2011, the then Minister of Justice and Leader of the National Assembly announced that all laws which may infringe and violate human rights would be reviewed. In their announcement, the government officials indicated that the review of the laws is as a result of “the sentiments from the general public and in response to public opinion regarding certain laws”.
A number of laws were identified including section 46 of the amended Penal Code which permits government to ban any publication not deemed in the public interest. The former government has not made significant progress on this review.
SALC urges your administration to timeously put in place a process by which such laws can be identified and revised to ensure Malawi is in line with international and regional human rights standards.
Fulfilling Malawi’s International Criminal and Humanitarian Legal Obligations
SALC calls on Malawi to recommit itself to its obligations assumed under the Rome Statute for the International Criminal Court to arrest, investigate and prosecute perpetrators of international crimes and in the spirit of cooperation transfer indicted suspects to the International Criminal Court. In particular, Malawi must undertake not to host Sudanese president, Omar al Bashir, at the upcoming African Union Summit, and arrest him if he does enter Malawi at any future date.
Thank you for your attention to these important issues. We are excited at the opportunity your new administration represents for Malawi to make clear its commitment to democracy, the rule of law and the rights of all its inhabitants and to reassume its place as a responsible member of the regional and international community. We would welcome the opportunity to discuss further with your government the possibilities for enhancing rule of law and human rights in Malawi, and any questions or points you may have about the work of SALC.
Southern Africa Litigation Centre