Destination Justice


August 18, 2021 | posted by | 5sc

Destination Justice and Irish Rule of Law International sign a memorandum of understanding (MOU).

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Magistrates' Trainings - Montfort Richard Misunje


August 12, 2021 | posted by | 5sc

Continuing with our series, interviewing Magistrates in Malawi who have availed of our trainings, today we're profiling Montfort Richard Misunje. His Worship Misunje is a Senior Resident Magistrate in Malawi’s capital, Lilongwe.

Magistrate Montfort Richard Misunje

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Child Diversion in Malawi


July 29, 2021 | posted by | 5sc

Our Child Diversion programme in Malawi centers on diverting children, who come into conflict with the law, away from the formal criminal justice system. We’re continuing with our monthly series, profiling some of the children/teenagers who have taken part in our programme. Today, 16 year old James (we’ve used a pseudonym to protect his identity).

Child Diversion Participant Malawi

IRLI: Tell us about your life in Malawi?

J: I stay with my parents and my life in Malawi is pretty good.

What sort of difficulty with the law were you involved with?

I used to do drugs mostly with my friends. I used to hang around the wrong crowds.

How has the IRLI’s Child Diversion programme benefited you?

It has helped me stop a lot of negative things that I was doing and also break off friendships with people who were bad influences in my life. I now surround myself with positive influences and friends. I have mended a lot of broken friendships and relationships, particularly with my parents because they were not happy with what I used to do. But now they are happy.

What has your involvement with the programme been?

I was part of Mwai Wosinthika 11. We graduated in 2019.

Do you feel happy to have been involved in the programme?

I am really happy to have taken part in the programme because it really helped me. It helped me change my bad habits and helped me start hanging around good friends. The programme also helped me stop doing drugs and helped divert me from the criminal justice system.

What would you like to do with the remainder of your life?

I would like to become an engineer.

 

 


Lawyer Cóman Kenny


July 16, 2021 | posted by | 5sc

In the latest in our series profiling Irish and Northern Irish Lawyers who have worked, or are working abroad, we spoke with Cóman Kenny from Roscommon who is currently working as a lawyer with the Independent Investigative Mechanism for Myanmar, which was created by the UN Human Rights Council to investigate the most serious international crimes and violations of international law committed in Myanmar since 2011. Cóman previously worked as a lawyer in the prosecution at the Extraordinary Chambers in the Courts of Cambodia (ECCC), commonly known as the Khmer Rouge Tribunal.

Irish Lawyer Comán Kenny

IRLI: What is your background/training?

CK: I knew I wanted to pursue international law after studying a module during my law degree at NUI Galway, so I went to Leiden University in the Netherlands for an LLM in public international law. I was fortunate to get an internship at the International Criminal Tribunal for the Former Yugoslavia through my coursework and that motivated me to try and find a job in international criminal law. First, though, I returned to Dublin to train to become a barrister at the King’s Inns. Then I left to the Netherlands to get additional work experience and was extremely lucky to get a job as a lawyer with the prosecutor’s office at the Special Court for Sierra Leone. Since then, I have also worked as a prosecution lawyer at the International Criminal Court and the Extraordinary Chambers in the Courts of Cambodia and as a defence lawyer at the International Criminal Tribunal for the Former Yugoslavia.

Why did you become interested in legal work?

It was when I started to learn about social justice and human rights, and to understand that there was a possibility for lawyers to work to effect societal change. The influence of events in Northern Ireland was particularly important as I became cognisant of what had happened there as I got older. I also came to understand that people with a background like mine, coming from a small farming community with no family and other connections in law, could have a place in the profession.

What do you hope to achieve from the work you are doing?

International criminal law is still developing and has a distance to go before there is universal acceptance that it be applied in every situation where the facts warrant, irrespective of national interest or political considerations. I would like to do all that I can to help that process along.

Can you tell us some of your professional experiences that have left quite a mark on you personally?

There are many things that have impacted me in some way and a few that stick particularly clearly in my mind. In 2013, I attended a public outreach event in Freetown, Sierra Leone, that was organised to discuss and explain to people there the appeal judgment issued against former Liberian President, Charles Taylor, by the Special Court for Sierra Leone. It was a large open air gathering with hundreds of people sitting on plastic chairs and many others standing around the perimeter. Taylor had been convicted of, among other things, planning an attack on Freetown in 1998 – which had been named “Operation No Living Thing” and involved the commission of heinous crimes against the civilian population. Having worked on the case, it was very moving and humbling to meet and interact with people who had suffered so much as a result of Taylor’s actions, and to get some understanding of what the process meant to them.

In 2015, while undertaking a rule of law project in the Libyan city of Misurata, I interviewed lawyers who kept the blinds drawn in their offices and loaded weapons by their desks, for fear of being attacked by factions opposed to accountability efforts related to the civil war. Misurata had experienced some of the bloodiest conflict and attempts to come to terms with the crimes that had been committed were extremely complicated. It was a very stark reminder of the grave risks that some people face in merely trying to do their job.

Another that left a deep impression was examining in court a victim of forced marriage in a trial against Khmer Rouge leaders in 2016. The individual spoke about having been engaged prior to the Khmer Rouge coming to power and being subsequently separated from his fiancee, and them both being forced to marry other people and consummate those marriages. He also said that he had not been able to talk about what had happened and that the trial was an opportunity to speak and be heard. The testimony was very emotionally charged and impactful. And it was highly relevant to the criminal allegations that we subsequently succeeded in prosecuting.

Irish Lawyer Comán Kenny

You have worked at the Extraordinary Chambers in the Courts of Cambodia (ECCC), can you tell us a little about the work?

The work was very varied and challenging. We were a small team of lawyers in the prosecution office working on multiple cases involving crimes against humanity, war crimes, and genocide relating to the Khmer Rouge regime. The court was a UN assistance mission to Cambodia, so we were working alongside Cambodian colleagues to bring to account those most responsible for what had occurred from April 1975 to January 1979. We worked on cases at pre-trial, trial, and appeal, and the tasks ranged from investigation requests to litigation between the parties and challenges to rulings on points of law and fact. Being in the country where the crimes took place meant that many people could attend proceedings, see what was going on, and learn about the process. Many victims were also able to participate in the proceedings as civil parties, meaning their interests were represented by lawyers in the proceedings. Part of our job was also to engage in public outreach activities – to explain our role as prosecutors to the public and how the court worked.

What sort of cases have you been involved with that you would like to discuss?

The Charles Taylor case at the Special Court for Sierra Leone was important for several reasons. It was the first conviction of a former Head of State (am not counting the case of Karl Doenitz, because he only briefly succeeded Hitler before standing trial at Nuremberg) and related to his involvement in the crimes committed in neighbouring Sierra Leone while he was President of Liberia. Taylor had never put a foot inside Sierra Leone, yet he was fuelling the atrocity crimes that greatly scarred the country. The case stands as significant international precedent for the individual criminal accountability of those responsible for facilitating and perpetuating conflict beyond their own borders, irrespective of their position.

Case 002/2 at the Extraordinary Chambers in the Courts of Cambodia is also a significant case. That was the trial of Nuon Chea and Khieu Samphan, the highest-ranking surviving leaders of the Khmer Rouge, and was one of the largest criminal trials in history. It involved the gravest of crimes that victimised millions of people throughout the territory of an entire country during a span of nearly four years. The case resulted in convictions for crimes against humanity such as extermination, deportation, enslavement, imprisonment, torture, persecution, forced marriage and rape; war crimes such as wilful killing, inhuman treatment, and depriving prisoners of war of a fair and regular trial; and genocide of two groups, the Muslim minority known as the Cham, and the Vietnamese population in Cambodia. It brought some measure of justice to one of the darkest episodes of the twentieth century and showed that accountability can still take place even decades after crimes are committed.

You now work in Geneva on the UN mechanism, investigating crimes in Myanmar/Burma, what does this work involve?

The Mechanism is conducting investigations into the most serious crimes and violations of international law that have occurred in Myanmar since 2011. The mandate is prospective, so we are monitoring events there daily. The situation of the Rohingya population has obviously received much international attention in the past years. Additionally, and less known, are the various conflicts that have been ongoing between the military and ethnic armed groups in different parts of Myanmar. Most recently, there have been extensive reports of violence since the military’s seizure of power in February. Our role is to conduct an independent and impartial investigation of what has occurred. We collect and analyse evidence in order to prepare legal files to facilitate criminal proceedings in national, regional, or international courts that have or may in the future have jurisdiction over such cases.

Irish Lawyer Comán Kenny

Why did you decide to work abroad?

The simplest answer is that the work is taking place abroad.

Your hopes working as you do?

It is a privilege to get to work on these kinds of issues – that have shaped countries and peoples. I think the motivation is a mixture of recognising how fortunate you are and feeling that you have been entrusted with the hopes of people who desperately want accountability and striving to your best to honour that.

What sort of an impact would you like to make?

Criminal accountability for international crimes (meaning those deemed to be of concern to the international community as a whole because of their seriousness) can take a long time – sometimes decades. It is difficult to keep public attention fixed on an issue to ensure that there is continued pressure on authorities to pursue justice. I would like to contribute to making the process more ingrained in people’s thoughts and in societies more broadly.

Would you like to work elsewhere?

It is an extremely positive thing to experience a new culture and history through your work, and it is something I have really enjoyed. I hope I am fortunate enough to have the chance to get other opportunities to do so again in the future.

Your advice to young people entering the legal profession?

Keep building the core skills (e.g. research, analysis, drafting, and advocacy) and do not be too worried about taking professional diversions, so long as the experiences you are gaining are transferable to the type of role you ultimately want.

Anything else that you would like to add?

I would encourage people who are interested in law but do not think they can financially sustain a career at the bar to think about pursuing opportunities in international law. It is a broad field, with many different aspects to it and potential avenues to pursue.

 

 

 

 


Magistrates' Trainings - Madalitso Khoswe Chimwaza


July 15, 2021 | posted by | 5sc

Continuing with our series, profiling Magistrates in Malawi who have availed of our trainings, today we're profiling Madalitso Khoswe Chimwaza. Honour Chimwaza is an Assistant Registrar of the High Court of Malawi, Lilongwe Registry, Criminal Division. She is a Judicial Officer who handles cases, and who holds the responsibility for the day to day administrative work of the registry, along with case management and examination of sureties when bail is granted.

IRLI: What is your opinion of the justice system in Malawi?

MC: My opinion regarding the Malawi Justice system is that since we adopted the new Constitution in 1994, there has been tremendous improvement in the governance institutions, which has led to improved access to justice and respect for the rule of law among others. There has been increased awareness and use of governance structures that ensure accountability across constitutional bodies, and that call on public officers and institutions to account for their actions or failure to act. E.g. The office of the Ombudsman, the Anti-corruption bureau an the Malawi Human Rights Commission. Malawians now know that they have rights and that duty bearers can be taken to task to account if some rights are violated. They know that they can have legal representation if not provided by government, and that they can hire a lawyer to represent them in court.

What is the biggest challenge accused persons face within the Malawian Justice System?

The biggest challenge that accused persons face in the Malawian criminal justice system is access to legal representation. Most offenders come to the lower courts (Magistrate Courts) without legal representation and in some cases this affects the way they handle their defence in a case.

It is only offenders in Homicide trials that have access to Legal Aid Bureau lawyers who are government lawyers. The main reason for this is the shortage of lawyers at Legal Aid Bureau.

What would you like to change about the legal system in Malawi?

Our legal system is adversarial in nature and in criminal matters it only focuses on the accused person. The victim is sidelined and only needed and thought of when it comes to giving evidence. Mostly the victim is a spectator.

I would like to see the law focusing more on the victims of crime, offering more support, because punishment of your offender alone does not suffice to a victim who has suffered emotional, physical and material loss, especially in cases involving sexual violence and human trafficking. Currently this is not possible because the system is crafted in such a way that it just looks at the offender and the punishment they deserve.

There is a need for more training to equip Magistrates to be pro-active and ensure that some accommodating laws that we have are implemented and institutions and structures for services that support victims are made readily available and are adequately resourced to ensure that the victims are assisted beyond being a witness in criminal Justice process. Victims/Survivors should not just be spectators, but active participants in the justice delivery as it directly affects them.

How is Malawi playing a leading role worldwide in its application of the law in the country?

Malawi, lately, has demonstrated that the Courts are the guardians of Justice, the corner-stone of a democratic system based on the supremacy of the Constitutional principles and values and rule of law.

It has been rated as a nation where the rights of the people are respected and people are free to demand their rights up to the extent of taking government institutions and public officers to task to account for failure to respect the rights of the people.

What motivates you to do the work that you are doing?

What motivates me is the satisfaction I get when someone has been able to go through the criminal justice system and is either vindicated as being innocent and those found guilty get the appropriate punishment. At least, it gives me comfort that the victim has been assisted by seeing the perpetrators of crime being punished.

Do you see a bright future for Malawi and its people?

Most definitely, Malawi and its people have a bright future in terms of having a nation that put the rule of law first, upholding the Constitution and democratic principles.

What has your involvement been with the IRLI?

I have been coordinating and facilitating the IRLI lawyers that have been assigned to the Judiciary and facilitate their work with Judges and other institutions. I have also been coordinating with IRLI lawyers assigned to the other justice sector stakeholders, like Director of Public Prosecution’s Chamber and Legal Aid. I have been attending Homicide working group meetings, comprising of Lawyers and other key officers from DPP Chambers, Legal Aid Bureau, Malawi prisons on how well to handle homicide trials.

Have you been involved in training with the IRLI?

I have not been trained by the IRLI, but I have been involved in facilitating trainings (as a trainer) for Magistrates on sentencing principles, weighing mitigations and aggravating factors when sentencing. I also facilitated training for Paralegals from Legal Aid Bureau, Ministry of Justice, Paralegal Advisory Service (PASI) and other institutions on bail applications for homicide suspects.

 

 

 


Lawyer John Coughlan


June 14, 2021 | posted by | 5sc

In the latest in our series profiling Irish and Northern Irish Lawyers who have worked, or are working abroad, we spoke with John Coughlan from Carlow town. John is working in Cambodia at the UN Office of the High Commissioner for Human Rights, having previously worked in Bangladesh with Rohingya refugees who had fled Myanmar. He studied law at University College Cork and afterwards did a Masters at the Irish Centre for Human Rights at NUIG, graduating from Queens University in Belfast.

John Coughlan, giving a talk with Samantha Power at Harvard

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Bar of Ireland Chair Conference


May 31, 2021 | posted by | 5sc

In June, The Bar of Ireland Chair Conference will take place, promoting #HumanRights & the #RuleOfLaw. We are delighted to be be one of the two charities that an attendee can donate to on registration. Speakers include Mr. Justice Donal O'Donnell (Judge of the Supreme Court), Paul Gallagher SC (Attorney General of Ireland), Michael P.O’Higgins SC and Professor Claire Hamilton.

Registration here: https://lnkd.in/dMgW8A9


Child Diversion in Malawi #2


May 31, 2021 | posted by | 5sc

Our Child Diversion programme in Malawi centers on diverting children, who come into conflict with the law, away from the formal criminal justice system. We’re continuing with our monthly series, profiling some of the children/teenagers who have taken part in our programme. Today, 17 year old Chimwemwe (we’ve used a pseudonym to protect his identity).

IRLI: Tell us about your life in Malawi?

C: I stay with my parents and I am happy with my life in Malawi.

What sort of difficulty with the law were you involved with?

I used to hang around the wrong crowds. We would do drugs and sometimes they would tell me to go steal from people. They used to teach me a lot of bad things that were detrimental to my life.

How has the IRLI’s Child Diversion programme benefited you?

The programme helped me get the courage to stop hanging around the people who were bad influences. I had even stopped going to school, but now I go to school.

What has your involvement with the programme been?

I believe that if I had not been part of this programme, I would have probably ended up in prison. So it really had a positive impact on my life.

Do you feel happy to have been involved in the programme?

I am really happy that I look part in the programme. I learned a lot from the Mwai Wosinthika programme. I particularly enjoyed the Sexual Reproductive Health session. It taught me ways in which I can prevent diseases. It has also helped divert me away from the criminal justice system because I stopped hanging around the wrong crowds.

What would you like to do with the remainder of your life?

I would like to learn how to fix cars so that I can become a mechanic.


Magistrates' Trainings - Felix Phaiya


May 27, 2021 | posted by | 5sc

Continuing with our series, profiling Magistrates in Malawi who have availed of our trainings, today we're introducing Felix Phaiya, a first grade Magistrate based at Salima court with criminal and civil jurisdictions in district courts.

IRLI: Why did you decide to become involved in legal work?

FP: I became involved in legal work because of the problems Malawians have in accessing justice, especially the underprivileged and the vulnerable. Most don't know their rights, or how to enforce them due to high levels of illiteracy. So I thought I wanted to become part of a team, helping to enable justice to the vulnerable and underprivileged.

What is your opinion on the justice system in Malawi?

Malawi has one of the best justice systems in the world, such that given good support in terms of funding and human resources, we would be a model country in areas of justice.

What is the biggest challenge accused people face within the Malawian justice system?

There are so many. Firstly, the post of third grade magistrate (TGM) needs to be abolished. Many are positioned in remote courts, where a large amount of people live. But because of their lack of jurisdiction, people are forced to travel to district courts to access justice and not many can afford to do this. So TGMs are there only as figureheads, without any impact in their areas of work.

The second issue is how police record suspect statements. Many suspects claim to be beaten/unduly influenced to confess offences. The problem is that when recording statements, whilst police recorders have witnesses, suspects don't. In this kind of situation, there can't be fair play. I would propose that legal aid officers, or paralegal officers, be present when witnesses are recording statements.

How is Malawi playing a leading role worldwide in its application of the law in the country?

Malawi has elevated itself to be a country where justice really is dispensed without fear or favour. There is total independence in adjudication of matters. Typical example is the 2019/2020 election case.

What motivates you to do the work that you are doing?

Seeing many people rushing to courts for redress on their issues gives the impression that many have confidence in the Judiciary. This gives me great motivation to do more.

What has your involvement been with the IRLI?

IRLI has been a good partner to all magistrates in Malawi. Apart from organising trainings, they have been touring rural courts to hear from magistrates themselves on problems they face in the dispensation of their duties. For example, they have helped us access tools like pieces of legislation.

Have you been involved in training with the IRLI? How has this benefited you?

Yes, I have attended a number of trainings with the IRLI. This has helped me in keeping abreast with new developments in the application of laws and in the handling of our day-to-day duties. The flow of information in the Judiciary is a big problem. So IRLI has been a bridge between magistrates in rural courts and top managers. For example, with the intervention of IRLI, we have seen the timely dispatchment of Acts of Parliament to rural courts.

Do you see a bright future for Malawi and its people?

The future is very bright, as far as justice issues are concerned. Vibrant justice systems do compliment national development because there is always the rule of law. With help of donor partners, eg, IRLI and EU, there has been capacity building of magistrates and mass rehabilitation of court structures. Given the relevant jurisdiction, and resources, yes, the future is bright.

I would like to thank the IRLI for the good job they have been doing. As numbers of COVID cases become negligible, it is my hope that IRLI will organise some refresher courses or trainings to help magistrates keep up to speed.

 

 

 


African Accountability: Reconceptualising the ICC in Malawi


May 24, 2021 | posted by | 5sc

By Robert Gleeson

Malawi’s police Independent Complaints Commission (ICC), finally established last September, could be more successful in its operation if organised with local context in mind. The ICC’s key mandate is to improve the accountability of the Malawi Police Service and, thereby, potentially curb the public perception of distrust and dissatisfaction towards the police. Such distrust and disharmony can be evidenced by Senior Resident Magistrate Michongwe’s recent in-court statement that the police need to be better at not issuing unreasonable orders (R v Lusewa & Pahuwa (Criminal Case Number 118 of 2021) [2021] MWMCA 1). To combat this lack of confidence however, the ICC must not resemble or regurgitate structures influenced by western colonialism.

Instead of organising around a Western model, African (Malawian) systems and values should be incorporated to solve African problems. There is a profound benefit in utilising African structures, as opposed to colonial influences in gaining the trust and support of the local communities. As Sefa Dei stated “curriculum homogenisation, assisted by African local and indigenous knowledges can solve problems instead of using colonial influences.” (G.J Sefa Dei, ‘Ingidenizing the school curriculum’ case of the African University, Springer 2004, pg. 2). Further, Morgan Ndluvu argues that “colonial domination in African ways leads to a crisis of repetition without change. Africa needs to break from colonial ways to move forward.” (Morgan Ndluvu, Coloniality of knowledge and the challenge of creating African Futures. Ufahamu: A Journal of African Studies, 40(2), 2018). The utilisation of colonial influences and structures has rooted many African colonies in a perpetual state of distrust of institutions. Malawi, through the ICC, could instead conceptualise the institution in line with African values, which would harness a greater sense of community trust, lead to an effective and progressive complaints commission, influence the police service, and serve as a strong precedent for other African nations striving to diverge from the scars of colonialism.

A potential alternative structure (or at least focus) for Malawi’s ICC would be to utilise local and community indigenous leaders, either in the structural makeup of the ICC or set up some form of communicative dialogue with local community representatives to shape policy or review governance of the commission. This would allow the commission to be influenced by the people of the various cultural communities in Malawi, improve its utility and efficacy to those same people, as well as ensure it is less beholden to the central government. As stated by Chiguda,

traditional leaders wield substantial influence in rural areas in Africa that is often realised by politicians. In both pre and post colonial times, politicians have solicited the assistance of traditional leaders to influence governance and electoral processes in Southern Africa.” (Chiguda D, Assessing policy initiatives on traditional leadership to promote electoral democracy in Southern Africa. Mediterranean Journal of Social Sciences, 6(1):120, pg. 121).

Chiguda goes on to argue that “traditional leadership provides an effective communication mechanism due to their hierarchical structure and geographical spread.” (Ibid pg. 121). In the article, Chiguda references Namibia’s Traditional Authorities Act 1995, which allows for traditional community leaders to give support to policies by the central government, and South Africa’s department of traditional affairs, set up to accommodate and secure the role of traditional leaders in state affairs. From this regional, historical experience, it is reasonable to conclude that local councils could be used effectively to improve the societal perception of the ICC and indeed the entire police service of Malawi. They must be representative though, rather than reinforcing of patriarchy and inherited titles that exist in the wake of colonialism.

And the Malawian people are willing. In the wake of the 2019 presidential election, where public pressure on the authorities caused an election result to be set aside by the Constitutional Court and Supreme Court of Appeal, there is a high level of willingness for the public to engage with democratic processes. This is evidence that the ICC or the police service (or even the Malawi Government itself) should engage with the people to create a stronger sense of unity and trust in institutions.

A potential influence and road map for the ICC (and police) could be found in New Zealand, where there is considerable public trust in authorities and in the police force in particular. This trust has been achieved by incorporating indigenous tribal influence into the police force, which has worked to remove perception that police public authority is a result of colonial influence. The New Zealand Commissioner of Police has a regular meeting and dialogue with indigenous Maori tribal leaders, known as the Commissioner’s Maori Focus Forum, where the group helps guide policing strategy and plays a role in governance of the police. Further, the police receive training in line with indigenous ideals as opposed to colonially influenced principles.

In conclusion, a more community-focused regime for the ICC could improve public sentiment towards the police in Malawi, whereby accountability mechanisms are transparent and proximate to the communities themselves, not far removed from the people in echo of past colonial structures. This could happen in Malawi by having community advisory boards involved in the ICC’s governance or policy itself, or by having consultative powers to improve transparency in policing complaints. Direct community involvement is essential in improving how the people of Malawi see their police.