An article by Immaculate Malzua (DPP Programme Lawyer) and Susie Kiely (Country Director) from IRLI's Malawi Programme.
Section 19(3) of the Constitution of Malawi prohibits the use of torture or cruel, inhuman and degrading treatment or punishment. The Malawian Constitution also prohibits the use of forced confessions at Article 42(2)(c).
Photo credit: Kadir van Lohuizen, who travelled to Malawi to for collaborative project with Young in Prison, a Dutch NGO that campaigns for the rights of juveniles in prisons.
The Malawian Constitution also prohibits the use of forced confessions at Article 42(2)(c). Though Article 42 is not listed as one of the non-derogable provisions under S45 of the Constitution, S45 mandates that a right can only be derogated from in a state of emergency. The Malawian Constitution also protects the right to a fair trial at Article 42(2)(f), which includes the right to silence at 42(2)(f)(iii) and the right against self-incrimination at 42(2)(f)(iv). Malawi is a signatory of the Convention Against Torture, the International Covenant on Civil and Political Rights, and the African Charter on Human and People’s Rights, all of which which expressly prohibit torture and enshrine due process rights. Finally, Malawi is a common law jurisdiction, under which forced confessions are inadmissible.
However, in spite of the previous constitutional and international provisions, Section 176 of the Malawian Criminal Procedure and Evidence Code (CP&EC), permits the use of forced confessions - noting that a confession is admissible in court, regardless as to whether it was freely or voluntarily made. The only criteria for admissibility are that a) it was made by the accused b) it is “materially true”. Whether a confession is “materially true” has largely been interpreted by the courts as meaning that it points to and yields corroborating evidence.
The CP&EC dates back to 1967, when the country was under one party rule and political dissent was not tolerated. It is well documented that many people were interned and tortured during this period before democracy, and no doubt this law reflected the priorities of the Government at that time. Furthermore, the law borrowed heavily from its colonial predecessor, and from a regime that again was not interested in human rights.
The new Constitution of Malawi was brought in by the first democratically elected Government in 1994. On the face of it, it is quite clear that S176 offends the Constitution, as well as common law and Malawi's various international human rights obligations. Although the Constitution should have supremacy over the CP&EC, the courts have still found that torture tainted evidence is admissible.
Jurisprudence
There have been a number of High Court decisions that have argued that S176 is unconstitutional, such as Nyirenda J in the case of Republic v Chinthiti Criminal Case. No 17 of 1997. In the case of [1] Palitu and Others v Republic (Criminal Appeal No. 30 of 2001) ((Criminal Appeal No. 30 of 2001)) [2001] MWHC 43 the court found that if the confession is found to have been elicited forcibly, it should still be admitted as evidence, but no weight should be given to the confession at all.[1]
Most High Court judgments however adhere to the dicta of the Supreme Court of Malawi (MSCA), which remains the law of the land, in the judgment of Thomson Fulaye Bokhobokho and Another v The Republic (Criminal Appeal No. 10 of 2000) [2001] MWSC 5 (17 October 2001). In this case it was pronounced that if torture is alleged, the confession is admissible, but S176(3) means that corroborating evidence should be found so that the confession can be found to be “materially true”. However, often no investigation is carried out into whether torture or ill-treatment actually occurred and furthermore, frequently no corroborating evidence is submitted to prove the confession was “materially true”.
Photo credit: Kadir van Lohuizen, who travelled to Malawi to for collaborative project with Young in Prison, a Dutch NGO that campaigns for the rights of juveniles in prisons.
The country openly summarised its position to the United Nations on this issue in its State Report to the UNCAT in 2020 when it said:
“The Criminal Procedure and Evidence Code under section 176 does not expressly prohibit the use of confession evidence obtained under torture, cruel or inhuman and degrading treatment or punishment. It would be expected that evidence so obtained would generally violate the broader rights to fair trial. This is how the courts in practice have interpreted it. In the High Court decision of Republic v Chinthiti Criminal Case No. 17 of 1997; the court concluded that section 176 of the Criminal Procedure and Evidence Code violated the right not to self-incriminate in section 42 (2) (c) of the Constitution. The court never considered the relationship between the admission of involuntary confession evidence and absolute prohibition of torture, cruel and inhuman, degrading treatment. However, in the Malawi Supreme Court of Appeal decision of Thomson Fulaye Bokhobokho and Another v The Republic Malawi Supreme Court of Appeal, Criminal Appeal No. 10 of 2000; the Court stated that section 176 settles the law regarding admission of confession statements, this entails that confession evidence is admissible regardless of allegations of torture, and upon admission of such evidence, if the Judge is convinced beyond reasonable doubt that the confession is materially true”.
In the recent case of the Republic v Humphery Elia & Anor (Criminal Case No.164 of 2018) [2019] MWHC 77 (26 April 2019), the accused alleged that his caution statement was not given freely, and showed the court scars on his backside which he alleged had occurred through police beatings. The court however referred to S176 of the CP&EC and confirmed that “any caution statement or confession is admissible regardless of how it was obtained. In other jurisdictions, a confession must be made voluntarily and freely for it to be admissible. That seems not to be the position in this country though with our current section 42 (2)(c) of our Republican Constitution one would have expected the position to be like in those other jurisdictions.”
Torture and Police Investigations
Torture-tainted confessions are frequently used as the only evidence to secure a conviction against a person in Malawi. The Malawi Police Service (MPS) has little to no access to forensic evidence such as: DNA, finger prints, CCTV etc. and so most cases rely solely on testimonial evidence, which makes confession evidence paramount to a case. Despite a constitutional right to a lawyer, the vast majority of those who come into conflict with the law do not have one.
Without a lawyer, and having given a forced confession, people may plead guilty to the case and no trial will occur, and so the police and prosecution will not have to present any further evidence to substantiate their case. As noted above, the High Court continues to defend s176, and regularly references it when the defence tries to raise the use of torture in a case. It is not known whether the courts genuinely believe that torture and beatings are valid and legal tools in the arsenal of interrogation, or whether their defence of s176 is due to a resigned fear that law enforcement would be nearly impossible without them. The prolific use of torture by police means that potentially many people confess to crimes they never committed, so the amount of persons languishing in Malawi’s overcrowded prisons who are innocent of their crimes could potentially be high.
Cases of Torture
The use of torture or ill-treatment by police officers, primarily to secure a confession, is prolific in Malawi. In the above MSCA judgment Thomson Fulaye Bokhobokho and Another, Mr Bokhobokho was sentenced to death, despite there being little to no evidence against him except for his confession elicited through torture; he maintains his innocence. Courts have admitted torture-tainted evidence, nearly all of which included forced confessions, in every recent capital case in which a death sentence was handed down.
In 2020, two persons were arrested for the murder of a man, despite no body being found. They were both tortured and one confessed to the murder. They were held on remand for two years, when eventually the “alleged deceased” turned up alive. The men were then granted bail, but it took another 8 months to have them discharged. They are now preparing for litigation against the state.
Although the majority of the time there is no accountability for the use of torture, occasionally when enough media attention is drawn to a case, the Government will take action. For example, there is the highly publicised case of Buleya Lule. Mr Lule was arrested in 2020 for the alleged murder of a boy with albinism. He was tortured using electrocution and died as a result of his injuries. The Malawian Human Rights Commission undertook a special investigation into the death of Mr Lule and found that he had been electrocuted to death by police. In July 2020, 13 police officers, including the Commissioner of Police for the Central Region, were arrested and charged. All 13 police officers were granted bail at the end of July 2020. The prosecution has not progressed beyond this to date.
The occasional compensation of victims of torture, despite the MSCA’s defence of the constitutionality of s176, creates a highly ambiguous and arbitrary situation regarding the use of torture in Malawi.
Hope for the future
There could be light at the end of the proverbial tunnel with the recent ruling of the MSCA in R v Chanthunya (Criminal Case 11 of 2018)[1]. The appellant in this case had been found guilty of murder in the High Court. In his appeal he alleged that the trial court had erred in finding that Section 3 of the Criminal Procedure and Evidence Code (CP&EC) rectified the police's violations of rules and laws related to illegally obtained evidence. Section 3 states that “the principle of substantial justice should be done without undue regard for technicality shall at all times be adhered to”. The trial court recognised the transgressions by the police but noted that in circumstances where there was sufficient collaborative evidence to convict the accused, Section 3 could be used to cure any illegality.
In his Supreme Court challenge, the appellant argued that Section 3 only related to technical errors rather than substantive errors, and the trial court could not therefore use it to cure these substantive transgressions, regardless of any other evidence.
In its decision, the MSCA made many notable pronouncements. It noted that Malawi is now in “the era of Constitutional superiority…. where all laws and acts must pass constitutional muster or risk being declared illegal and therefore null and void.” They also noted that “it is now obligatory that all laws, human rights and constitutional freedoms are, except to the extent to which they are lawfully limited, fully respected by all branches of government namely the Executive, the Judiciary and the Legislature.”
The MSCA went into detail about the constitutional rights of the accused enshrined in S42 of the Constitution, which encompass due process rights. The court dealt with principles surrounding the manner in which prosecutors bring charges, the right to not be compelled to make a confession, the right to a fair trial and the presumption of innocence. The court reaffirmed the exclusionary rule, which stipulates that evidence obtained through illegal means, such as unlawful searches and seizures, should generally not be admissible in court. This principle is grounded in the need to uphold the rule of law and deter law enforcement authorities from engaging in and benefiting from unlawful practices.
Photo credit: Kadir van Lohuizen, who travelled to Malawi to for collaborative project with Young in Prison, a Dutch NGO that campaigns for the rights of juveniles in prisons.
Crucially, the Court also directly referenced S176 (1) and (3) of the CP&EC. It referenced the case of Rep v Kara [2002] (which referenced the cases of Rep v Nalivata and Others and Chiphaka v Rep) and Mwaondo v Rep MSCA criminal Appeal Case no 8 of 2008, which had noted that S42(2)(c) (the right not to be compelled to make a confession or admission which could be used in evidence against him or her) had no effect on the legality and therefore admission of evidence. The court said that it “must depart from that position” and that the original cases of Nalivata and Chiphaka took place before the enactment of the 1994 Constitution and are therefore irrelevant.
The MSCA ultimately found that the trial court had erred in its finding that Section 3 of the CP&EC cured the transgressions of the prosecution. It disregarded the impugned evidence, but ultimately found there to still exist a significant amount of evidence against the accused, and so retained the guilty verdict.
This case is clearly crucial with regards to the contradiction occurring in Malawi’s courts regarding the use of aged legislation to justify the admission of evidence, including forced confessions, in a way that directly contravenes the constitution. It will be extremely interesting to see what further cases are brought on foot of this case that may wish to strike down S176 once and for all.
[1] MSCA Criminal Appeal No.1 of 2021