PROBLEMS ASSOCIATED WITH ASSESSMENTS IN RESPECT OF WRONGFUL IMPRISONMENT

The examples of incidents of unlawful detention which have already been alluded to occurred at different times and involved many people of different ages, educational and cultural background. In other instances it has been noted that children were born when their mothers were in custody. These few facts already present a lot of problems.

Firstly, how does the Tribunal ascertain the period of detention? Very few people would still be keeping their Detention Orders of 1965. Therefore the reliable sources would be the Police and Prison Authorities. It has been observed in many cases that the Detention Orders were not issued on the day of arrest. Sometimes a month would lapse before it was issued or else the period of detention would not indicate the time spent in Police custody elsewhere if that person was not sent to Chichiri, Zomba, Maula, Mzuzu and Karonga prisons straight away i.e. that person could have been kept in Blantyre Police Station or Machinga Police Station or Kachere Remand Prison or Chitipa Police Station.

Secondly, thee is problem of accuracy of the Police and Prison reports. It is an obvious fact that Government does not keep all its records forever. i.e. there is a lifetime of validity of a document and thereafter it is either sent to the National Archives for storage or it is threshed and becomes garbage. Thanks for recycling technology.

Thirdly, even where the Police or Prison authorities have submitted reports it has been observed that discrepancies appear. For example a Police report may indicate that a claimant was detained because he misappropriated party cards funds while the Police Report for the same claimant indicates that the detention was political.

Assuming there was no Police Report in this situation the claimant would be compensated because the Tribunal would not know the true background information that led to the detention of the claimant. The dictionary has got a word spelt CONCEALMENT and pronounced “KONSILUMENTI”. This word is practically employed by some claimants during assessment. Reverting back to the definition of false imprisonment what may come back to mind is the problem of claimants who were released on bail after being in custody. Some of these claimants have obtained Police Reports or Prison which include the period they were out on bail probably up to the time they were acquitted in Court or the Police indicates the date when the claimant was released. As a matter of policy the claimant was not in detention after his or her release on bail. It would actually be a contradiction if a person who was released on bail would be said to be under detention. Therefore it must be made known that the Tribunal will not compensate anybody in respect of the period they were not in Police or Prison custody. It is equally wrong for the Police and Prison authorities to include on their reports such periods unless we are talking of those claimants who were put under restriction orders.

Fourthly when some parents were detained they had young children who could not be left at home because of their tender ages or those children were born in prison. The prison may not have their records or due to some cultural practices the children may have assumed other names. Therefore there would be a discrepancy in the information from prison and that given by the claimants on registration.

Fifthly, in some Malawian Culture, a nephew or niece or grandchild assumes name and responsibility of an uncle or aunt or grandparent upon death of the latter group. Therefore, if the uncle, aunt and grandparent was detained but is now dead, this other person registers the claim. It is no laughing matter when you see a person born in the 1980s and claims that he or she was detained in 1965 for political reasons. Those who do it in good faith and in pursuant to their culture are excused and advised that the claim will be treated as a claim by a deceased estate. However, there are some who willfully and fraudulently do so, their destination would be Limbe Police Station for further investigations.

Sixthly, Malawi’s illiteracy level is put at 65% and thanks to the Gable and Free Primary School Education Programmes. These are recent programmes. Think of 1965 o 1971 and think of some parts of Malawi where children could not be allowed to go to school for fear of religious conversion. It is extremely difficult for most claimants to indicate the dates of their detention. Even for the educated claimants, the detention was untold trauma and negatively impacted on their memory.

Seventhly, the expectation of claimants has been that the Tribunal will compensate them up to the levels of High Court award of damages for similar claims. For example claimants peg their claims to that of Machipisa Munthali who was awarded over K4 million by the High Court. There are times when you hear names of leading politicians such as Hon. Aleke Banda and others who were awarded damages by the High Court or had their claims settled out of court by the Attorney General. Sometimes these claims referred to by the claimants relate to defamation or wrongful dismissal but not unlawful detention. What claimants should know is that there is no mathematical formula for assessing non pecuniary loss. However, general principles are there and these are guided by precedents, economic factors and general policy at any given time. At the moment unless contrary views are made known the policy is that the awards of compensation by the Tribunal shall be lower than the High Court awards and shall follow the tradition or condolences.

This will not be found in any document but it is word that will pass on in the generations of the Tribunal Board. The reason for this is that the Tribunal is more flexible and accommodating than the Courts. If the strictness that is followed is the courts were to apply to the Tribunal, most of the claims would have been dismissed either for lack of evidence or lapse of time. Furthermore, it should be clear in the mind of everyone that the Tribunal was established through the people’s wish for extending an olive branch to those afflicted souls and Minds and imploring them to join in the social, political and economic development of Mother Malawi. It would be wrong to think that the Malawians thoughts of restituting the afflicted claimant to the position they would have been but for the wrong. The Tribunal would therefore wish to appeal to all claimants who were wrongfully imprisoned to bear in mind that the spirit behind the establishment of the Tribunal was to say sorry to our brothers and sisters who suffered for no fault of their own.