Boxten: and the tragic impact of Malawi’s broken justice system

Because there is no civil war, no epidemic, no oil and no Al Qaeda – just crippling poverty – this will continue to fly below the radar.

Prisoners of Chichiri Prison Vote in the Malawi Elections. Demotix/AEP Malawi. All rights reserved.

This story is my promise to an unlikely friend. His name is Boxten Kudziwe, and he has been waiting seven years to be convicted of a murder I do not believe he committed.

Malawi is a small, landlocked country with the unenviable status as one of the world’s poorest. Until Madonna ferreted her adopted children away, promising to build desperately needed schools, Malawi featured little in the international news. Because there is no civil war, no epidemic, no oil and no Al Qaeda – just crippling poverty – it will continue to fly below the radar.

I am a lawyer, originally from Australia. I recently returned to London after working for seven months on a project in Malawi with prisoners charged with homicide and awaiting trial or sentencing, and to train local law students to do the same.

I was based in the Department of Legal Aid, in the Blantyre office. On paper, access to legal aid is constitutionally guaranteed in Malawi. However, to say that Legal Aid is understaffed is a gross understatement. Three Legal Aid offices serve Malawi’s 15 million people, and the Blantyre office is down to four lawyers. They are paid about £100 per month, on a career pit stop to lucrative jobs in private practice.

The department is laughably under-resourced. Their annual casework budget for the entire year equals one hour of a top English QC’s time (about £600).  Lawyers must provide their own printing paper, and the one photocopier in the office was broken.

The Legal Aid lawyers lament that they first meet their client on the day of their trial, having only had time to peruse the file the night before. Defence witnesses are rare, and evidence from the prosecution often escapes objection. Confessions are known to be produced by savage beatings. Prisoners report that the police turn the radio on to silence the blows from their metal-tipped batons.

The trial is in English – the language of the court and the educated - but not of the three-quarters of the population who live below the poverty line. It’s all done and dusted in a matter of hours, but the stakes are high as Malawi retains the death penalty for murder.

My job involved liaising with the court to ensure our clients’ cases went ahead. Senior court staff admitted that the court had run out of money to run murder trials, resulting in a backlog of about 500 cases.  Those in this queue now have to wait until more funds become available from foreign donors, who prop up about 36 percent of the country’s budget.

Many of these prisoners have never had a bail hearing. If they have, either the sureties are too expensive for their village families to afford, or they are denied bail because everyone knows there are inadequate enforcement mechanisms to ensure that they show up at their trial.

Most of my clients had been incarcerated awaiting trial for at least three years, some up to a decade. This is inhumane: they have not been proven guilty, hence are innocent men; yet they rot for years in squalid prisons.

My first visit to prison was an assault on the senses. Overcrowding is the norm: A cell built for 50 inmates has over 150. They are packed in, sleeping head-to-toe, skin-to-skin. In this claustrophobic space, they share one bucket for their waste. Privacy is a luxury afforded to no one. Dignity is crushed out, as the bodies of their fellow inmates crush in.

Sanitation is non-existent. Chichiri Prison in Blantyre shares one working shower for all 2,500 inmates.  Until sentenced, the inmates are denied prison garb – they live in the clothes they were arrested in.

Food is scarce. Prisoners receive one small portion of nsima (a corn-based porridge), once a day. It barely provides sufficient nourishment, and so families bring goods to supplement the rations (if your family can afford the travel). For 2013, the Malawian government cut the prison food budget by half, resulting in chronic food shortages. When visiting my clients, I would bring what food I could, as they hadn’t eaten for days.

Sickness is inevitable. TB reportedly infects up to 60 percent of the prison population. Condoms aren’t allowed in prisons to prevent sexually transmitted infections, as this deeply conservative society believes such measures will condone still-illegal homosexuality.  The result is rapid infection of HIV, sometimes on the night of arrival for new inmates selected by long-termers to be their ‘wife’.

The government is aware of the prisoners’ plight. In 2009, the Malawian government was ordered by its highest court to fix prison overcrowding, food and sanitation. But since then, conditions have only grown worse.

The first thing I was advised to do upon entering the prison was to find Boxten, who would help translate my clients’ instructions. I was warned not to ask for his help around midday – he would oblige, despite missing his only meal.

Others were withered and emaciated, but I was struck by Boxten’s strength and vitality. He clearly commanded respect in the prison community, and prisoners would come to him for advice and assistance.

We began a routine - I would go to prison and ask the prisoner manning the gate for Boxten (staff shortages mean trusted prisoners perform many administrative duties). His name was put out over the prison PA system – one prisoner shouting to another – and he would cheerily emerge from the cells. We would have a chat and a laugh. On Mondays he would ask me how my weekend was. I would politely avoid returning the question.

He showed an impressive knowledge of legal issues, and would provide useful thoughts on my client matters. He cherished a book on the English legal system given to him by another volunteer lawyer.

I learned that Boxten was a church elder in the Seventh Day Adventist prison church. When he wasn’t working with us, he was busy counselling members of his congregation and teaching life-skills training to other prisoners. One day we sat down and he told me his story.

Boxten was born in 1978 into a family of five children. He finished school in 1995; a year later was married and was soon blessed with two daughters. He trained as a secondary school teacher but soon left, as a teaching salary could not support his growing family. He became a self-employed businessman, selling second-hand phones in the marketplace.

On 10 April 2006, he was stopped by two police officers and taken to the local police station for questioning about a business associate. He was held in a police cell until he disclosed the associate’s hiding place. (This is a common practice in Malawi, where police arrest friends and family as a tool to get their hands on a suspect.) He was beaten with the butt of a rifle for three days and to this day cannot remember this brutal interrogation. What followed was two months of detention in the police station. He was never informed of his right to remain silent, or any charges against him.

On 23 June, he was hauled up to the local Magistrate Court. He had spent 1776 hours in police detention, flagrantly over the maximum 48 hours guaranteed by the Malawian Constitution.  He then learned for the first time that he was being charged with multiple murders.

His first days in prison were, in his words, ‘unforgettable’. He could not sleep in the filthy mass of bodies. His clothes were stolen off his back. He was bewildered and alone and away from his family.

His wife could not cope with the separation. She left him, sold off the family home, and abandoned their children with his parents.

The years wore on, and negotiations progressed to secure his release, as the prosecutor conceded there was little evidence to link him to the crimes. However, in 2008, this all came undone. Through volunteer lawyers he complained to the United Nations Working Group on Arbitrary Detention, who emphatically held that Boxten’s incarceration violated his due process and fair trial rights under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, and that he should be immediately released.

Boxten suffered the wrath of a now embarrassed Malawian government prosecutor. As punishment, the government pushed ahead with a baseless trial. I have reviewed the ‘evidence’ used against him. No prosecution witnesses were present at the alleged killing and the typed signed confession they rely upon suffers from amateurish police tampering – not only does it bear a false signature, but the words “denied the allegation” is crossed-out with pen and “admitted” is shoddily written above, in its place.

Boxten’s trial began in 2010 and finished in September 2012, but to say it lasted two years would be misleading. Actually, it lasted 2 days, with a two-year adjournment in between.  At the end of March 2013 (over 180 days after closing arguments were due from the parties), the judge received all submissions and would finally consider whether Boxten was guilty of murder.

Tragically, Boxten’s case is neither shocking nor unique in Malawi. Many prisoners detail similar stories of delayed prosecution, missing lawyers and part-heard trials. The problem, as I see it, is more than lack of funding for trials. The justice system is not only broke, but broken.

The country doesn’t have enough judges, prosecutors and defence lawyers. There is no separate criminal division of the High Court. There is no system for efficient case management to ensure timely trials and judgments. The court has an archaic filing system, resulting in inevitable lost files. There appear to be no effective penalties for lawyer misfeasance, so submissions timetables are blatantly disregarded. Without systemic change, international donors are throwing good money after bad, and any further funding must be linked to reforming these critical administrative areas.

I ended my time in Malawi frustrated and exhausted.   Before leaving I sat down with Boxten and we had a long chat. He told me he has learned more from prison society than in the outside community. It is a place where you learn, you grow, have friends, and share a laugh. He worries about his daughters. All he wants for them is to grow up knowing they are well cared for and supported. He dreams that God will give him a second chance to be with them, and that he could make up for the lost time cruelly taken away.

He feels lucky – he at least has had some legal representation. He is concerned that other prisoners have no representation and are convicted through their ignorance of the law and of their rights. When he leaves prison, he hopes to become a paralegal with a local human rights organisation called CHREAA. I have no doubt he would be a fierce and fearless advocate. Before we said our goodbyes, he pulled out of his pocket a brown paper bag and gave it to me.

Inside was a ring, forged in the prison from worthless Malawian coins. I was struck by its exquisite craftsmanship, produced with improvised tools and polished down against the prison walls. It was from this place of despair that this item of beauty emerged, and reminds me that humanity survives even the most inhospitable environments.

Next to the ring was a letter from Boxten to the news media. It was to congratulate CHREAA for their work in the prison, and implores international donors to assist. He described this organisation as “the platform for those who are in dungeon for many years with no access to justice and their eyes blind to human rights”. Here was a man with everything to complain about. Instead, he writes on behalf of all prisoners an articulate piece about the good works done by others. Out of Boxten’s adversity, and within a system of brutal injustice, has come leadership, empathy, and poetry.

I left Boxten with two promises. The first was to give his letter to the newspapers. I did so on my last day in the country, but have no idea whether it made it to press.

The second promise was to tell this story. This I could make sure others would see.

Boxten ended his letter thus: “CHREAA, it is our humble prayer that though you are facing challenges, don’t give up, keep on paving the way for our rights until the cock craws, GOD bless.” 

Epilogue: On 27 September 2013, Boxten had his day in court. The prosecution case was found to be inherently unreliable and the charges were thrown out. Justice was not done – he had lost seven years of his life with no possibility of compensation. But an injustice had finally ended. We spoke briefly on the phone, outside the prison walls. He had no words to say – he was completely overwhelmed by the enormity of his freedom, to be with his daughters and be a father again.

 

About the author

Toby Collis is a human rights and international lawyer, originally from Australia. He has worked on a diverse range of cases, from defending Croatian alleged war criminals, fighting anti-homosexuality laws in Singapore, to murderers awaiting trial in Malawi.