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Blantyre, Malawi – On Monday 13 May 2019, a 3-judge bench of the High Court, sitting as a Constitutional Court, handed down judgment in the case of State v Willias Daudi.

On 8 August 2018, the Malawi High Court in Blantyre heard a constitutional application relating to the case of State v Willias Daudi. Mr Daudi had been convicted of robbery after a full trial. At the time of his trial, however, he was not informed of his right to legal representation, and he further did not benefit from the offer of legal aid. His lawyer, Fostino Maele, filed an application alleging a violation of Mr Daudi’s constitutional rights. The case was heard before a bench consisting of Justice Mtalimanja, Justice N’riva and Justice Chirwa.

Writing three separate opinions, the bench unanimously held that there was a violation of the right to be informed of the right to legal representation. The majority, per Judges Chirwa and N’riva, held that the failure to be informed of the right to legal representation did not occasion a failure of justice. The minority judgment, per Judge Mtalimanja, held that the failure to inform an accused person of the right to legal representation, breached an absolute right and automatically meant any proceedings following therefrom were unfair, and any conviction and sentence ought to be set aside.

“The court unanimously held that the judiciary should set down guidelines on how every criminal court should ensure that in every trial every accused person is informed of the right to legal representation,” said Victor Mhango, Executive Director of the Centre for Human Rights Education, Advice and Assistance. “We are encouraged that the Court recognised that such guidelines are critical to protect fair trial rights, and we would welcome any opportunity to provide input into such guidelines.”

“The failure to inform accused persons of the right to legal representation has significant repercussions on the credibility of the criminal justice system,” said Anneke Meerkotter, Litigation Director at the Southern Africa Litigation Centre. “Malawi prisons frequently make newspaper headlines for overcrowding, lack of food and poor prison conditions. The inhumane and degrading treatment to which prisoners are subjected increases the urgency for guidelines to ensure the fair trial rights of accused persons and the provision of legal aid at the State’s expense where the interests of justice so require.”

Issued by: The Centre for Human Rights Education, Advice and Assistance (CHREAA) and the Southern Africa Litigation Centre (SALC).

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