CLAIMS FOR WRONGFUL IMPRISONMENT

The people who are claiming that the former Malawi Congress Party Government wrongfully arrested and detained them are many. The question which often arises is what is wrongful imprisonment or unlawful detention? The mandate of the National Compensation Tribunal arises from the Constitution and specifically the Tribunal has to deal with claims arising from the civil and/or criminal liability of the past regime. It is therefore imperative that claimants should establish that a legal wrong was committed against them. The lawyers call it a tort. In law the tort of wrongful imprisonment or false imprisonment or unlawful detention has been defined as follows:-

“False imprisonment is the infliction of bodily restraint which is not expressly or impliedly authorized by law. It consists of the complete deprivation of liberty at any time, however short without lawful cause.”

What happened to the people who are submitting their claims to the Tribunal? Obviously there are a myriad situations which cannot be exhaustively listed here. However a common trend can be discerned. Firstly, there are a number of claimants who allegedly owed allegiance to the late Henry Masauko Chipembere during the famous Cabinet Crisis. Immediately after that incident some went into the bush and were agitating for military confrontation while others simply went into hiding. Government machinery arrested and detained those people. The situation degenerated further when anyone who was perceived to have been a relative, friend or in any way associated with the late Chipembere was dubbed a “rebel supporter” and was arrested and detained. As if this was not enough, every person from late Chipembere’s home area in Malindi was liable to imprisonment. Those who were not arrested were the ones who were truly seen and thought to be Government supporters and informants. Obviously, the seat of the Government was in Zomba and as such Chipembere had friends in Zomba from within Zomba and other districts of Malawi who were arrested and detained because of their friendly association.

Secondly, at independence and attainment of republican status, the members of Jehova Witness Sect did not participate in the political processes which brought about the political changes. This was seen as being unpatriotic. In 1967 life was almost unbearable for Jehova Witnesses. A number of them were charged with the offence of being members of banned associations and were duly convicted and sentenced to imprisonment. There was a repeat process in 1971 and by 1972 most of them had fled into neighbouring Zambia and Mozambique. Upon their return in 1975 most of them were charged, prosecuted and sentenced to two years imprisonment with hard labour.

Thirdly, by 1983 it was quite clear that any person who had alternative but not necessarily dissenting views was a thorn in the flesh and had to be removed. The only places for them were Mikuyu Prison, Dzaleka Prison and Nsanje prison. There are claimants who were either forced to flee into exile or detained in prison because they raised their eyebrows on the so called Mwanza road accident.

Fourthly, in May 1992 there was the labour unrest mostly in Blantyre, Lilongwe and Chitipa. At the same time the then Pressure Groups had intestified their campaign for political pluralism. The government used arrests and detentions to quell the pressure.

Fifthly, in December, 1992 there was mass arrest of people who were going to court to attend the trial of Thom Chakufwa Chihana who had openely challenged the then Government on its tainted human rights record. A lot of claimants were detained in Mulanje, Blantyre, Lilongwe, Mzuzu and Chitipa.

From all the above given examples of incidents which took place, the crucial issue becomes whether or not those people were unlawfully imprisoned or justifiably imprisoned. If the yardstick to judge these actions is the standard set down by the 1994 Malawi Constitution the answer is obvious that a legal wrong had been committed by the Government. For example, what wrong does a person commit by being a friend of another? What wrong does a person commit by abstaining political involvement? What wrong does a person commit by recommending and not imposing an alternative solution to a perceived problem? This is a plausible argument. However, the 1994 Malawi Constitution which established the National Compensation Tribunal and the Rules of Procedure clearly provide that in the operation of the Tribunal it shall take into account the Constitutional human rights provisions and observe principles of natural justice. This simply means that the atrocity which occurred should be subjected to the test of human dignity. As a result whether or not there was due process of the law, the Tribunal should assess and determine whether or not that law was fair, reasonable and in accord with human dignity. It is for this reason that even those claimants who were prosecuted or persecuted for their religions beliefs are compensated by the Tribunal. 

Lastly, the Tribunal is not compensating those people who themselves committed some wrong. An example is those people who held positions in the MCP and were selling membership cards and ended up failing to account for the proceeds of the sale and were locked up. Equally, the people within our society who committed offences like murder, manslaughter, theft, rape, house-breaking etc. but due to other technical aspects of the law were not prosecuted and ended up being released after a stint in custody. As long as evidence is available of their involvement in those offences, they cannot be compensated. A person who seeks equity (fairness, justice) must come with clean hands. Those people have soiled hands. Although technically at law those people were wrongfully detained, this would be an area where equity would drag its feet and refuse to follow the law. It would be like rewarding a person for dong a wrong thing. 

Again, whether in the past or now or in future there will always be need for police to have investigative powers because that is the only way the Police determine that a crime was committed. The Police summon suspects and detain them at their stations for a day or two for questioning. There is nothing illegal about that practice and it did not and does not offend any constitutional, statutory or moral rights. Unless the nation is prepared to cripple the operations of the Police, room must be given to the Police for proper investigation time. Therefore those people who claim that they were detained for a day or two for Police investigations into alleged commission of crime cannot be compensated unless there is strong evidence that the detention was not for proper investigation but a ploy to mete punishment on an innocent soul.