This post was written by Andrea Vizsolyi, IRLI’s Director of Public Prosecution’s Programme Lawyer from our Malawi Project.
Malawi’s prisons are some of the most overcrowded in the world, at an estimated 260% capacity. Congestion and poor hygiene measures have had a widespread detrimental effect on the prison population. At each stage of the Malawi justice system, accused persons’ rights may be affronted by issues such as incomplete investigations, a lack of legal representation available to those who cannot afford it, unsanitary and overcrowded conditions -which the High Court of Malawi has deemed akin to torture- and long delays before trial.
Persons suffering from mental health conditions are even further disadvantaged in this system, with the prisons, police cells and personnel lacking the resources and knowledge to cater to their needs. Many accused persons with mental health conditions languish in overcrowded police cells with little attention paid to their specific needs. The already-distressing situation in these places of detention has been exacerbated by the COVID-19 pandemic: another in a long line of fast-spreading communicable diseases has entered the walls of prisons and police cells, and threatens those inside. Resources for those with mental health conditions in Malawi are severely limited (there is only one psychiatric hospital in the country), and criminal justice actors lack requisite sensitivity and/or knowledge in dealing with mental health conditions. This makes the frequent limbo of such accused persons dangerous to themselves and those surrounding them.
People are often arrested in Malawi without investigation. Many are then subject to illegal detention while investigations are conducted. Torture is a commonly reported police tactic once someone has been arrested, which is generally used to extract a confession. The negative effects of torture go beyond physical injury, and can be exacerbated by the existence of a mental health condition.
Physical torture is not the only type of human rights violation that a detainee might face – fair trial rights such as their right to understand the charges against them and their right to silence, as well as their right to food, and other Constitutionally-protected rights are also impacted.
The Constitution and Criminal Procedure & Evidence Code provide that those arrested must be brought before the Court within 48 hours of their arrest for committal. This right is not complied with roughly 40 percent of the time. Once the case has been committed, many prisoners still wait years before their trial begins.
It is possible that as early as the arrest stage, an accused person with a mental health condition could be referred to the only psychiatric hospital in Malawi, located in Zomba (ZMH) for a mental health assessment. This referral would need to come from the police. The obstacle then becomes a lack of funds for the police to transport the accused person to ZMH and back to the police station. On the rare occasion that police take the matter into their own hands, the process of transportation to ZMH, the assessment, and getting funds to transport them back can take months.
Receiving an assessment that the accused is not fit to stand trial does not necessarily signal the end of an accused person’s time in the criminal justice system. There have been several instances of accused persons being detained in police cells for months post-discharge from ZMH, with no progress on their case. Without the police flagging the case to prosecution services, these accused will remain undetected. They are often denied admission to the prisons, because the prisons do not want to cater to their mental health needs.
To detain accused persons whom have been declared fit to be reintegrated into the community, and who have been absolved of criminal responsibility, in unhygienic and non-socially distanced spaces is unacceptable. While release of these accused persons should always be prioritised- it is even more pressing in light of COVID-19.
A Magistrate or Judge may order a psychiatric assessment before trial has begun. This will require police, prosecution, or defence (in the unlikely event that the accused person has representation) to bring the matter forward.
As the assessment will determine whether the accused person can stand trial, it makes sense to present it as a preliminary issue. It is not uncommon for an assessment to be completed, and the accused person sent back to await their trial date, with no urgency placed on the fact that they have been determined not fit to stand trial. The accused person can remain without appearing again in Court for several months or years.
Due to uncertainty over whether police or prison resources should be used to ensure transportation, Court-ordered assessments are frequently not complied with – they are overlooked or ignored, with the result that those who are meant to be sent to ZMH never are. Without the assessment, they may not be listed for trial, so they remain in limbo in police or prison custody.
There are no mental health resources available to accused persons on remand. Though an assessment may mandate that they take certain medications, in practice, the prisons or police cells will likely not be able to get a proper supply. Nor do the prisons have any counselling programming to assist those in need.
It is very difficult to receive appropriate treatment while in custody, resulting in a deterioration of mental state, which may already be endangered by the inhumane conditions of detention.
In the course of the trial, if there is a recent assessment of unfit to stand trial, the Judge or Magistrate will likely accept it, and discharge the accused person. They may request a second assessment, depending how much time has passed since the first. If it has been over a year, the Court will want to be satisfied that the same is still true, and that the accused person can be safely reintegrated into their community. This can prolong the process by several more months.
Occasionally, the accused person does not get an assessment, but evidence presented at trial makes out that they do not have capacity to be held responsible. In this case, the accused person will hopefully be acquitted. This evidence may be presented by the Prosecution, if they are of the opinion that mental health could have been instrumental in the crime, or by defence. This can sometimes be the faster option, since assessment orders are not always complied with, and even if they are, the process can take several months.
If the accused person is convicted, they face many of the same challenges as they do on remand. There are very limited resources within the prisons to assist them with their mental health issues, and they will be unlikely to get the proper medications they need, unless their family members can bring these to them from outside the prison.
The Covid-19 Pandemic has exposed deeply entrenched inequalities in our societies, and has highlighted the suffering of prisoners worldwide, in inhumane conditions. The impact on this pandemic on the mental health of prisoners with or without pre-existing mental health conditions cannot be overstated; it is time to take a stand and speak up for the most vulnerable.