Individuals languish behind bars for years in nations like eSwatini and Malawi earlier than their circumstances come to court docket.
In a world more and more outlined by impunity and political repression, the erosion of the rights as soon as championed by the African Constitution on Human and Peoples’ Rights and the post-independence constitutions of many African nations is an alarming actuality. Forty years after adopting the African Constitution, autocratic regimes throughout the continent are chipping away at its guarantees. eSwatini and Malawi, like many within the Southern African area, aren’t any exception.
As civil society actors and human rights defenders, we should reimagine what entry to justice really means and demand on reforms that make it actual. With out accountability, authorized protections are simply ink on paper. With out motion, justice stays a privilege for the related and a fable for folks experiencing poverty.
On the coronary heart of the African Constitution lies within the precept of truthful and well timed entry to justice. It enshrines the best to a speedy trial and affirms that everybody is entitled to hunt redress for rights violations. These aren’t luxuries of democratic societies; they’re basic human rights.
Nonetheless, these rights are persistently undermined in nations like eSwatini and Malawi. Pretrial detention has change into not only a authorized device however a punitive measure in opposition to the politically inconvenient and economically powerless.
Throughout Africa, the pretrial detention charge stands at 36%, outpacing the worldwide common of 29%. That determine alone suggests systemic dysfunction. However the actual story lies beneath the numbers within the lives of individuals languishing behind bars for years, their circumstances stalled or by no means introduced earlier than a reliable court docket.
Take the case of a person in Eswatini who has been in pre-trial detention since 2019, on critical prices, but has not been introduced earlier than a choose. Then there may be political activist Mpandlana Shongwe, arrested in 2009 below the Suppression of Terrorism Act and launched on bail, however whose case stays unresolved extra than 15 years later. Regardless of approaching the courts in 2021 to have his matter enrolled, he continues to dwell in a authorized limbo, below the cloud of state surveillance and the burden of unresolved prices.
In Malawi, Wyson Bannet Large was arrested in 2007, remanded in jail, and convicted in 2009. However he waited 14 years for sentencing, which got here in 2024. The Malawi Bail Undertaking has reported that 800 of the 1 800 inmates in one of many greatest prisons within the nation had been detained for months, and even years, with out trial.
These tales aren’t distinctive; they replicate a broader, profoundly regarding, pattern in these nations’ prison justice programs. They violate the best to liberty and to be tried inside an affordable time below articles 6 and seven(d) of the African Constitution.
Such extended pre-trial detentions and delays additional violate the express provisions of part 161 of the Malawi Legal Process and Proof Code, which units out 30 days as the utmost time an individual ought to spend in custody pending trial, and part 21 of eSwatini’s structure, which supplies for the best to a good and speedy public listening to.
Whereas pre-trial detention just isn’t a human rights violation in and of itself, the place it’s extended, justice is delayed, and thus, justice is denied. Justice just isn’t a favour granted by the state. It’s assured to everybody, poor or rich, activist or apolitical. We can not afford to disregard the human value of a failing justice system.
What wants to vary
Africa should take severely its dedication to the values of the African Constitution and different regional obligations. The prison justice system should be reformed from the within out, beginning with accountability and oversight.
The minister of justice in eSwatini should instantly set up an unbiased oversight physique for correctional providers as per sections 123 and 124 of the Correctional Providers Act. This physique should be empowered to observe the situations and period of pretrial detention, examine circumstances of abuse or illegal arrest, and make binding suggestions for reform. It ought to embrace members of parliament, civil society representatives, judicial officers and human rights establishments.
Malawi’s parliament lately handed the Jail Invoice of 2025, which goals to align jail administration with worldwide human rights requirements. The Invoice will increase jail oversight by introducing inspections by unbiased guests. It additional strengthens the effectiveness of the inspectorate of prisons by making a secretariat.
These reforms, if applied, will enhance oversight of the prisons and monitor problems with pre-trial detention. Legislative our bodies should make ample monetary provisions for these oversight mechanisms to translate into efficient safety of prisoners’ rights.
Nelson Mandela as soon as mentioned, “Nobody really is aware of a nation till one has been inside its prisons.” He argued {that a} society’s true character is revealed by the way it treats its prisoners. Immediately, legal guidelines present the instruments — what’s lacking is the political will to determine efficient oversight our bodies. The folks deserve a prison justice system that serves them, not silences them.
The African Constitution can not stay a ceremonial doc. Its values should dwell within the day by day experiences of our folks. That begins with guaranteeing justice just isn’t delayed, denied or depending on one’s standing, however accessible, well timed and truthful for all.
Melusi Simelane is the civic rights cluster lead and Chikondi Chijozi is the prison justice cluster lead on the Southern Africa Litigation Centre.