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Published online by Cambridge University Press: 19 October 2020
Missing court files pose a serious issue regarding access to justice for illiterate and indigent prisoners, especially if the files go missing after the prisoner has been convicted and sentenced. Malawi's High Court recently grappled with the issue of missing court files post-conviction in the course of a large resentencing process, known to the legal community as the Kafantayeni Project. The Kafantayeni Project resentenced over 150 prisoners whose mandatory death sentences for murder were deemed unconstitutional, despite the majority of them missing court files. This article outlines the state of judicial record keeping in sub-Saharan Africa, the origins of the Kafantayeni Project, the extent of the record keeping problem it uncovered, how the judiciary resolved those issues while adding to the jurisprudence on missing court files, and the future implications for Malawi and elsewhere.
Quentin Bryce Law Doctoral Scholar, Faculty of Law, University of Technology Sydney; Kafantayeni Resentencing Project lawyer. The author thanks Dr David Carter and Mr Chimwemwe Chithope-Mwale for their comments on drafts of this article, as well as Dr Katherine Biber for her helpful discussion of the field more broadly. The usual caveat applies: any views expressed are those of the author.
1 K Kamiyala “1400 on remand for murder” (12 April 2015) Nation on Sunday (Malawi) at 3.
2 K Kamiyala “Not guilty after 7 years in prison” (12 April 2015) Nation on Sunday (Malawi) at 4.
3 “Malawi prison conditions still worse: 79 inmates die due to crowding, police brutality: Report” (30 April 2013) Nyasa Times, available at: <https://www.nyasatimes.com/malawi-prison-conditions-still-worse-79-inmates-die-due-to-crowding-police-brutality-report/> (last accessed 16 September 2020).
4 The World Bank “Malawi: Data”, available at: <https://data.worldbank.org/country/malawi> (last accessed 16 September 2020).
5 K Kamiyala “Lack of resources cripple [sic] Legal Aid Bureau” (12 April 2015) Nation on Sunday (Malawi) at 7.
6 Personal email from C Chithope-Mwale (3 October 2019).
7 N Mlangeni “Malawi's judiciary supporting staff on nationalwide strike over poor condition of service” (23 July 2019) The Maravi Post, available at: <http://www.maravipost.com/malawis-judiciary-supporting-staff-on-nationalwide-strike-over-poor-condition-of-service/> (last accessed 16 September 2020).
8 Kamiyala “1400 on remand”, above at note 1 at 4.
9 Trial delays at the Magistrate Court are not as extreme as at the High Court, as there are magistrates in every district of Malawi.
10 Under the Republic of Malawi (Constitution) Act 1994, sec 42(2)(b), an arrested person must be charged or released within 48 hours after arrest.
11 Under the Criminal Procedure and Evidence Code 1968, sec 161(D)–(G), the maximum time a person can be held in lawful custody pending trial is between 30 and 90 days depending on the severity of the offence and the court in which the trial will take place.
12 Amon Zgambo v Republic [1999] MSCA criminal appeal no 11 of 1998. Prosecutors would have difficulty persuading the court that it is not in the “interests of justice” to release an accused on bail if the file is missing and the accused has already endured being held on remand for a protracted period. In those circumstances, a principled court would grant bail until the state has found the file or reconstructed it through supplementary investigation so that a trial can commence.
13 CPE Code, sec 247.
14 The author worked with many of the stakeholders in the Kafantayeni Project and relies on a range of sources for information, including case law, personal correspondence and his own knowledge of the project.
15 Meredith, M The State of Africa: A History of the Continent Since Independence (2013, Simon & Schuster)Google Scholar. Meredith provides a chronological account of the failings of post-colonial administrations to apply the rule of law and govern effectively.
16 Katuu, S “The development of archives and records management education and training in Africa: Challenges and opportunities” (2015) 43/2 Archives and Manuscripts 96 at 99CrossRefGoogle Scholar.
17 See Nengomasha, C “The past, present and future of records and archives management in sub-Saharan Africa” (2013) 46 Journal of the South African Society of Archivists 1 at 2Google Scholar, where Mazikana's assessment is summarized.
18 Namakula, C “The court record and the right to a fair trial: Botswana and Uganda” (2016) 16 African Human Rights Law Journal 175 at 176–77CrossRefGoogle Scholar.
19 Nengomasha “The past, present and future”, above at note 17 at 5.
20 Ladan, A “Management and utilisation of judicial records in Federal High Courts in northwestern states of Nigeria” (2014) 147 Procedia - Social and Behavioral Sciences 32 at 37CrossRefGoogle Scholar.
21 Namakula “The court record”, above at note 18 at 186.
22 Id at 188–89.
23 A complete court record allows the defence and prosecution to make detailed submissions to the trier of fact and the trier of law, and facilitates the delivery of a detailed judgment.
24 Ladan “Management and utilisation”, above at note 20 at 37.
25 Judiciary of Zambia “Computerization project”, available at: <https://www.judiciaryzambia.com/computerization-project/> (last accessed 16 September 2020).
26 T Mosweu “Does the adoption of electronic records systems improve access to information? A Gaborone magisterial district, Botswana case study” (paper presented at 24th ESARBICA Conference on Public Sector Reforms: Transparency and Accountability, Lilongwe, Malawi, 7–11 August 2017) at 5.
27 Id at 7–8.
28 The Penal Code 1930.
29 Id, sec 210, as enacted.
30 Novak, A “The abolition of the mandatory death penalty in Africa: A comparative constitutional analysis” 22/2 Indiana International and Comparative Law Review 267 at 268Google Scholar.
31 Id at 279. Malawi's Constitution, arts 41 and 42.
32 The Death Penalty Project, a UK based anti-death penalty advocacy organization, partnered with human rights advocates from Malawi to challenge the mandatory death penalty.
33 Republic v Kenneth Langanyiwa and Others [2005] MWHC criminal case no 135 of 2005.
34 Republic v Paul Jasi [2002] MWHC criminal case no 10 of 2002.
35 [2007] MWHC constitutional case no 12 of 2005.
36 Ibid.
37 Mclemonce Yasini v Republic [2010] MSCA criminal appeal no 29 of 2005 at 12.
38 Center for International Human Rights, Northwestern University School of Law “Concept note: Kafantayeni resentencing project” (30 March 2013). The 192 Kafantayeni beneficiaries comprised 23 prisoners on death row, and 165 men and four women whose mandatory death sentences were commuted to life in prison by executive fiat.
39 [2005] UGCC 8.
40 The Death Penalty Project “Pathways to justice: Implementing a fair and effective remedy following abolition of the mandatory death penalty in Kenya” (January 2019) at 22.
41 Id at 26.
42 See letter from S Mdeza, assistant registrar of the High Court of Malawi (11 May 2012) granting the team unrestricted access to the National Archives of Malawi and the country's criminal registries.
43 The author of this article led the team in the file search.
44 It was important to cross-reference each prisoner's name with their case number as Malawians spell names phonetically. For example, a person who spells his name Aaron John may have his name recorded as Aron Jon on his prison file, Aaron Jon on his court file and Aran John on his committal warrant.
45 E Carreau “File search for those sentenced to the mandatory death penalty” (memorandum, 23 August 2012).
46 Files were classified as complete if they contained a trial transcript with the accompanying exhibits (which typically included the post-mortem report and caution statement). Incomplete court files were missing one or more of these documents and included those files that contained none of these documents but did have some other document(s), such as the prosecutor's précis of evidence, an appeal judgment and / or a bail application.
47 F Kanyongolo “Malawi: Justice sector and the rule of law” (Open Society Initiative for Southern Africa discussion paper, 2006) at 11.
48 [2014] MSCA civil appeal no 5 of 2012 at 8. This test is similar to the one used in a United States case in which the court reporter's notes were lost. See People v Morales (1979) 88 Cal App 3d 259 (Cal Ct App 1979): “The test is whether in light of all the circumstances it appears that the lost portion is ‘substantial’ in that it affects the ability of the reviewing court to conduct a meaningful review and the ability of the defendant to properly perfect his appeal. It is not every loss of any part of the reporter's notes that requires vacating of the judgment.” See Opinion of Compton J, available at: <https://www.casemine.com/judgement/us/5914939badd7b049345ad656?utm_source=amp&target=amp_impara#> (last accessed 25 September 2020).
49 Kasunda v Republic [2006] MWHC criminal appeal no 103 of 2005 at 3.
50 As Kafantayeni abolished the mandatory death penalty in 2007 and sentence rehearings began in 2015, the delay between conviction and receiving a constitutionally valid sentence was at least eight years.
51 Special Committee “Guidelines on sentence re-hearing” (17 February 2015).
52 Id at 3–4.
53 Id at 2.
54 S Babcock “Navigating the moral minefields of human rights advocacy in the global south” 17/1 Northwestern Journal of Human Rights 47 at 70.
55 Republic v Lackson Dzimbiri MWHC sentence rehearing cause no 4 of 2015; Republic v Geoffrey Mponda MWHC sentence rehearing cause no 68 of 2015.
56 Republic v Thom Pofera Phiri MWHC sentence rehearing cause no 25 of 2016; Republic v Stoneki Kachala MWHC sentence rehearing cause no 30 of 2016; Republic v Clement Master MWHC sentence rehearing cause no 33 of 2015; Republic v Funsani Payenda MWHC sentence rehearing cause no 18 of 2015; Republic v Gift Ngwira MWHC sentence rehearing cause no 22 of 2016.
57 Lackson Dzimbiri, above at note 55. In his reasoned judgment, Nyirenda J adopted these principles, which had been established in the “Newton hearings” (R v Hawkins [1985] 7 Cr App R [S] 351; and R v Kerr [1980] 2 Cr App R [S] 54).
58 Republic v Aaron John and Tonny Thobowa MWHC sentence rehearing cause no 13 of 2015.
59 See Republic v Anderson Mabvuto [2009] MWHC criminal case no 66 of 2009, where the convict was spared death because (at 12) the “[o]ffence [was] not the worst of its type and the convict [was] not the worst offender”.
60 Above at note 55 at 11 (emphasis added). Reaffirmed in Republic v Richard Maulidi and Julius Khanawa MWHC sentence rehearing cause no 65 of 2015; Republic v Patson Mtepa MWHC sentence rehearing cause no 9 of 2017.
61 Republic v Thomson Fuleya Bokhoboko MWHC sentence rehearing cause no 33 of 2017.
62 Republic v Jamuson White MWHC criminal case no 74 of 2008 (unreported). According to this judgment (at 2): “The offence must have been occasioned in very decrepit and gruesome circumstances meticulously intentioned and planned and that the convict is highly likely to offend again to justify his total removal from associating with other persons even in prison. He must be a threat to society so much so that society would without thinking twice approve of his elimination from planet earth. The motive for the killing must be extremely heinous so as to cause a deep sense of society abhorrence and condemnation that such human being does not qualify to live. I may put deliberate mass murders and serial killers in this category.”
63 Above at note 60 at 2.
64 Mental health experts from the United States and South Africa assessed over 25 prisoners who seemed to be mentally ill or intellectually disabled. The mental health experts produced reports from their assessment findings for the court. See Babcock “Navigating the moral minefields”, above at note 54 at 69.
65 Malawi Human Rights Commission “Project progress: Detailed, Kafantayeni sentence rehearing project” (working document, on file with the author). Calculations are based on this project progress document.
66 Ibid.
67 Republic v Bisket Kumitumbu MWHC sentence rehearing cause no 59 of 2015; Republic v Clitus Chimwala MWHC sentence rehearing cause no 56 of 2015; Republic v Richard N'dala MWHC sentence rehearing cause no 42 of 2015; Lackson Dzimbiri, above at note 55.
68 Geoffrey Mponda, above at note 55.
69 Some Kafantayeni beneficiaries are unable to appeal their convictions as the Supreme Court upheld their convictions (and confirmed their death sentences) on appeal before they were resentenced.
70 Supreme Court of Appeal Act 1964 (Malawi), sec 17(1).
71 This is evidenced by the fact that the located court records and prison files showed very few of the 192 Kafantayeni beneficiaries managed to file a notice of their intention to appeal, or launched appeals within the prescribed period after their initial trial. The majority of those without legal assistance did not do so.
72 Supreme Court of Appeal Act, sec 17(3).
73 CPE Code, sec 3.
74 Supreme Court of Appeal Act, sec 12(3).
75 Lackson Dzimbiri, above at note 55 at 11. Those Kafantayeni beneficiaries whose court files are entirely missing could challenge their conviction and rely on the Chalera ruling to argue for their release. Although the court file in each case has been reconstructed through additional investigation by defence lawyers and prosecutors, they all have “vital” components of the record missing, such as the trial judge's summing up to the jury (as in Chalera), which could lead to an injustice on appeal. Moreover, as with Mr Chalera, all the Kafantayeni beneficiaries who are yet to file an appeal have been imprisoned for eight years or more; as such, a retrial would be “inappropriate”. In these circumstances, the Supreme Court may be persuaded to set aside their conviction without the full appeal being heard or, alternatively, grant them bail pending appeal.
76 Ibid.
77 Above at note 60.
78 Republic v Thomson Bokhobokho MWHC sentence rehearing cause no 33 of 2017. The Supreme Court's affirmation of these sentencing principles would be binding on the High Court.
79 Republic v John Nthara and Jamu Banda MWHC sentence rehearing cause no 15 of 2015; see Lourtau, D et al. Justice Denied: A Global Study of Wrongful Death Row Convictions (2018, The Cornell Center on the Death Penalty Worldwide) at 39Google Scholar.
80 Francis Karioko Muruatetu and Another v Republic [2017] Supreme Court of Kenya petition no 15 of 2015.
81 African courts may be influenced by the sentencing principles arising from the Kafantayeni Project. See Cornell Law School “Cornell Center on the Death Penalty Worldwide wins world justice challenge” (17 July 2019), available at: <https://www.lawschool.cornell.edu/spotlights/Cornell-Center-on-the-Death-Penalty-Worldwide-Wins-World-Justice-Challenge.cfm> (last accessed 16 September 2020), in which Prof S Babcock (Cornell Law School) states: “We are urging the African Court to consider the positive jurisprudence generated by our project, in the hope that the principles adopted by the Malawian courts may ultimately affect the application of the death penalty across the continent.”
82 The Death Penalty Project “Pathways to justice”, above at note 40 at 38.
83 It would be a mistake for well-resourced jurisdictions that rarely, if ever, lose court files to become complacent. As courts and lawyers move increasingly towards filing documents online, the system is exposing itself to new risks. Despite improved online security, the possibility that files are digitally misfiled or intentionally deleted will always remain.