People with Albinism in Malawi

END VIOLENCE AGAINST PEOPLE WITH ALBINISM TOWARDS EFFECTIVE CRIMINAL JUSTICE FOR PEOPLE WITH ALBINISM IN MALAWI

In Malawi, people with albinism suffer serious violations of their human rights and risk losing their lives in attacks. 2 AMNESTY INTERNATIONAL

INTRODUCTION and May 2016. In February 2018, a joint report by the Malawi Police Service and the Ministry of Justice and Violence against people with albinism Constitutional Affairs revealed that in Malawi decreased soon after the number of reported crimes had Amnesty International published its increased to 148, including 14 cases 2016 report “We are not animals to of murder and seven attempted be hunted or sold’”: Violence and murders since November 2014.1 discrimination against people with albinism. In May and June 2017, an Amnesty International delegation visited Malawi However, since the report was published and met with civil society, victims and in 2016, there was a resurgence in government officials from the Ministry attacks, with four more people with of Gender, Children, Disability and albinism being killed in Malawi since Social Welfare, Ministry of Justice and January 2017. That report recorded Constitutional Affairs, the national 69 cases involving crimes related to prosecuting authority, the Chief Justice people with albinism, comprising 18 and other members of the judiciary cases of people killed, five abducted and the police. and missing, between November 2014 This briefing is a follow-up to the 2016 report and is based on visits conducted CONTENTS in 2017 as well as follow-up interviews and desktop research. The briefing Introduction ...... 2 focuses on the current resurgence in attacks against people with albinism, Background ...... 3 stemming from an atmosphere of prejudice and a lack of understanding Attacks continue despite of the condition. The problem is official condemnation ...... 4 exacerbated by inadequate resources to Understanding the motives deal with crime, leading to a culture of behind the attacks ...... 9 impunity. The briefing analyses the causes of recurring attacks and the What progress has government’s response, and identifies Malawi made? ...... 12 gaps in the criminal justice system. Where does Malawi need It also assesses the progress made in to improve? ...... 13 Malawi towards the protection of the right to life and security of people with Conclusion ...... 22 albinism. Recommendations ...... 23

1. Joint Docket Tracing Exercise Report for Cases of Persons with Albinism in Malawi. This is a Joint report by the Malawi Police Service, Ministry of Justice and Constitutional Affairs. It was funded by the UNDP with technical assistance from UNICEF. TOWARDS EFFECTIVE CRIMINAL JUSTICE FOR PEOPLE WITH ALBINISM IN MALAWI 3

BACKGROUND brothers were stabbed in Nsanje in March 2017, amid several attempted abductions or killings. Cases of verbal The UN noted that from 2000 to 2013 insults, threats and robbery of graves it had received 200 reports of ritual containing the remains of persons with attacks on people with albinism across albinism have also been recorded. 15 African countries.2 Since November Women and children with albinism are 2014, however, an unprecedented particularly vulnerable to abductions wave of killings and other human rights and killings by criminal gangs because abuses including abductions and they are seen as easy targets. Accord- robberies against people with albinism ing to the UN, suspected perpetrators has swept through Malawi. Similar operating as gangs or individuals can attacks have occurred in neighboring gain up to US$75,000 for the sale of Mozambique. People are targeted for a full set of body parts.4 their body parts in the belief that they contain magical powers. The current population of people with albinism in Malawi is estimated at between 7,000 The current population and 10,000, representing a ratio of 1 in every 1800 persons.3 of people with albinism in Malawi is estimated Between June and December 2016, Malawi experienced a seven-month at between 7,000 and respite from attacks and killings, believed to be because of awareness 10,000, representing a brought by the launch of the Amnesty ratio of 1 in every 1800 report, the public condemnation of the 3 attacks by President Mutharika and persons. other senior government ofﬁcials. This was broken in January 2017 when According to the UN, Madalitso Pensulo, a teenage boy with albinism, was killed in Mlonda village suspected perpetrators under the Nsabwe Traditional Authority operating as gangs or in Thyolo District. In February 2017, Mercy Zainabu Banda, a 31-year-old individuals can gain up woman with albinism was found murdered in Lilongwe with her wrist, to US$75,000 for the right breast and hair removed. Two sale of a full set of body 4 2. www.ohchr.org/EN/HRBodies/HRC/RegularSessions/.../A_HRC parts. _24_57_ENG.doc Report on Albinism, UN Ofﬁce of the High Commission for Human Rights, 2013 3. Amnesty International, ‘We are not animals to be hunted or sold’: Violence and discrimination against people with albinism (Index: AFR 34/4126/2016) 4. http:/news.un.org/en/story/2016/03/525042-witchcraft-beliefs- trigger-attacks-against-people-albinism-un-expert-warns 4 AMNESTY INTERNATIONAL

ATTACKS CONTINUE The courts, Human Rights Commission and the government have obligations in DESPITE OFFICIAL terms of the constitution of Malawi to CONDEMNATION provide assistance5 in the protection of human rights such as the right to life6, 7 8 The government of Malawi has obliga- dignity , equality and access to justice 9 tions under the African Charter on and remedies. Human and Peoples’ Rights, African Charter on the Rights and Welfare of Despite public condemnation of the the Child, Protocol to the African attacks by the President of Malawi Charter on Human and Peoples’ Rights and the Minister of Gender, Children, on the Rights of Women in Africa as Disability and Social Welfare in March well as the International Covenant on 2015, the violence has continued. Civil and Political Rights, to protect, promote and fulﬁl the right to life, Although some individuals have been dignity, personal security and safety arrested, charged and convicted, the for all people in Malawi, including majority of crimes remain unresolved vulnerable groups such as people with due to failure in the administration of albinism, and ensure equal protection justice. The charges and penalties often before the law. have not matched the gravity of the

Figure 1: Summary of cases of attacks related to people with albinism in Malawi as of 26.02.1810

50 45 40 35 30 25 20 15 10 0

In Court Sent to DPP Completed Not for PWA

Closed Undetected With RPO’s Ofﬁce Under Investigation Discontinued by DPP With Individual P/Ofﬁcer

5. Section 15 of the Constitution of Malawi 9. Section 41 of the Constitution 6. Section 16 of the Constitution 10.Joint Docket Tracing Exercise Report for Cases of Persons with 7. Section 19 of the Constitution Albinism in Malawi, Malawi Police Service and Ministry of Justice 8. Section 20 of the Constitution and Constitutional Affairs. TOWARDS EFFECTIVE CRIMINAL JUSTICE FOR PEOPLE WITH ALBINISM IN MALAWI 5 crimes, creating a climate of impunity as well as deep fear. Table of cases reported to police January 2014 to February 2018 in In a February 2018 joint report by the Malawi.11 Malawi Police and Ministry of Justice and Constitutional Affairs, the police REGION CASES CASES documented at least 148 cases in four REPORTED CONCLUDED provinces of Malawi. The most preva- Northern 8 3 lent offence was the desecration of graves of people with albinism. Most Central 39 5 such crimes are committed during the Eastern 49 22 night and witnesses are hard to find, Southern 52 14 resulting in a low rate of prosecution. TOTAL 148 44 Police figures indicate that around 10 cases of intimidation, kidnapping and abductions have been concluded since 2015. In cases involving possession Amnesty International has since and selling of body parts of people with confirmed through information from the albinism, around 16 cases have been Malawi Police Service and the Director concluded since 2015. Those involving of Public Prosecutions (DPP) that the the killing or attempted murder of total number of unresolved murder and people with albinism remain unresolved, attempted murder cases stands at 21 mainly due to inadequacies in the as of February 2018. administration of justice. Other offences committed against people with albinism include armed robberies, assaults with Statistics show that intent to cause grievous bodily harm, and conspiracy to kidnap and sell the rate at which cases children. are concluded is slow

The statistics in the table above show compared to other crimes that the rate at which cases are investigations: only 30% concluded is slow compared to other crimes investigations: only 30% out of out of 148 cases reported. 148 cases reported. By February 2018, the police had not ﬁnalized investigations in 45 cases, whilst 21 murder cases had been submitted to the DPP’s ofﬁce.12 The police had failed to resolve 11. Joint Docket Tracing Exercise Report for Cases of Persons with Albinism in Malawi, Malawi Police Service and Ministry of 14 cases and 44 cases had been Justice and Constitutional Affairs completed as of February 2018.13 12. Joint Docket Tracing Exercise Report for Cases of Persons with Albinism in Malawi, Malawi Police Service and Ministry of Justice and Constitutional Affairs 13. Joint Docket Tracing Exercise Report for Cases of Persons with Albinism in Malawi, Malawi Police Service and Ministry of Justice and Constitutional Affairs 6 AMNESTY INTERNATIONAL

Despite some successful prosecutions District, Southern Malawi, near the outlined above, abductions, disappear- border with Mozambique. His body was ances and murders have continued. found buried in a shallow grave on 1 On 7 December 2017, a family in April after suspects confessed to the Phalira, Thambani District, woke to murder leading to the arrest of seven discover that their two-year-old daugh- people. According to the Association of ter Jean Ngwedula was missing. Her Persons with Albinism Malawi (APAM),14 father reportedly sold the child to a seven people were arrested by police traditional doctor for ritual purposes in and charged with murder. The murder Mozambique. He was later arrested on of Masambuka has shown how some charges of murder and investigations of the attacks against people with are continuing. albinism are rooted in organized crime and concerted efforts are required to Macdonald Masambuka, aged 22, was combat impunity and strengthen last seen on 9 March 2018 in Nakawa accountability. Village, Nkoola Authority, in Machinga On 3 May 2016, the Chief Justice of Malawi, Andrew Nyirenda, issued a 14. Joint Docket Tracing Exercise Report for Cases of Persons directive to all magistrates in the with Albinism in Malawi, Malawi Police Service and Ministry of Justice and Constitutional Affairs country pointing out that only Chief Resident Magistrates, Principal Resi- TOWARDS EFFECTIVE CRIMINAL JUSTICE FOR PEOPLE WITH ALBINISM IN MALAWI 7

dom of movement. They need legal and “the police are one of the social protection to fully enjoy their rights. primary agencies of the As observed by the Constitutional state responsible for the Court of South Africa in the case of protection of the public in Carmichele v Minister of Safety and Security, “the police are one of the general and women and primary agencies of the state responsi- children in particular ble for the protection of the public in general and women and children in against the invasion of particular against the invasion of their fundamental rights by perpetrators of their fundamental rights violent crime.”16 The police have, by perpetrators of violent however, raised concerns about delays in concluding trials due to the limited crime” number of senior magistrates qualiﬁed to deal with cases relating to people Constitutional Court of South Africa with albinism.17

In addition, there have been efforts at coordination between the police and dent Magistrates and Senior Resident the office of the DPP to conclude Magistrates are allowed to handle trials investigations more promptly and of offences concerning people with efficiently. Amnesty International calls albinism.15 Amnesty International on the Malawi authorities to continue acknowledges the efforts by the Chief with the positive steps towards Justice with the aim of prioritizing accountability and access to justice cases of people with albinism in the and effective remedies for people with judiciary and to delegate them to albinism and to expedite the prosecu- qualified senior magistrates. People tion of murder cases currently pending with albinism have become margin- at the High Court. alised and vulnerable as they are subjected to intimidation, abductions Since Amnesty International’s visit to and killings, thereby curtailing their Malawi in June 2017, magistrates’ right to life, security, dignity and free- courts have handed down harsher sentences than previously in cases that involve crimes against people with 15. Handbook on offences relating to attacks against people with albinism, Report compiled by Justice Redson Kapindu at page albinism. These cases were all complet- 90. ed in 2017. Amnesty International 16. Carmichele v Minister of Safety and Security 2001(4) SA 938 (CC) para. 62 recognizes efforts by the Ministry of 17. Joint Docket Tracing Exercise Report for Cases of Persons with Justice in the following matters: Albinism in Malawi, Malawi Police Service and Ministry of Justice and Constitutional Affairs 8 AMNESTY INTERNATIONAL

causes through human rights education • Eight people were sentenced to six and raising awareness must be part of years’ imprisonment for conspiracy the strategy to stop further attacks. to the murder of Enelesi Nkhata in An accountability strategy will require Dedza in April 2015. One of the more concerted efforts in identifying accused is Enelesi’s uncle. The and stopping criminal gangs, including charge of murder remains out tracing and identifying the source of standing. demand for the body parts of people • Three men - Tomasi Ndini, Dezieu with albinism and cooperation with Jonasi Ogala and Enock Banda - neighbouring countries where there is were convicted and sentenced to reason to believe that people or body 14 years’ imprisonment for parts are being trafﬁcked across conspiracy to exhume the body of borders. According to the Canada- a person with albinism. based NGO Under the Same Sun,18 there has been cross-border trading of • Alison Samson and Jafuli Ligomba body parts of people with albinism in from Nkhatakata were convicted Democratic Republic of the Congo, and sentenced in November 2017 Mozambique, South Africa, Swaziland to 21 years’ imprisonment for and Tanzania. kidnapping with intent to kill a child, Amadu Wasi. Malawi and all the Southern African • Francis Dick and John Chilape Development Community (SADC) states were convicted on charges of should be guided by Article 9 of the abduction with intent to murder SADC Gender and Development and were sentenced to 20 years’ Protocol which urges states to adopt imprisonment. According to the measures and laws to protect persons charges, they had abducted 24- with disabilities that consider their year-old Silaji Mbalaka in October vulnerabilities. People with albinism 2017 with intent to sell him to a would qualify as having disabilities businessman at Ntaja District. owing to their visual impairment and would therefore be eligible for disability • In October 2017, John Bakuwa grants. The Malawian authorities must and Vincent Mathaya, were increase efforts for greater regional charged with attempting to collaboration in investigating and remove Gana Saidi’s body tissue prosecuting cross-border crimes to and were sentenced to 18 months’ ensure access to justice and effective imprisonment. remedies for people with albinism. SADC states, including Malawi, should People with albinism continue to invoke and implement the provisions of experience human rights violations and the Protocol on Extradition and the abuse based on their gender, disability and skin colour. Amnesty International 18. Under the Same Sun is a Canadian Christian charitable believes that addressing the root organization that promotes the wellbeing of persons with albinism via education and advocacy. TOWARDS EFFECTIVE CRIMINAL JUSTICE FOR PEOPLE WITH ALBINISM IN MALAWI 9

Protocol on Mutual Legal Assistance UNDERSTANDING THE in Criminal Matters19 to ensure collaboration in the efﬁcient arrests of MOTIVES BEHIND THE criminal gangs and effective prosecu- ATTACKS tion of cross-border crimes. Finally, SADC states must amend their human In its 2016 report, Amnesty Interna- trafﬁcking laws to include prohibition tional noted that some of the crimes of trade in body parts of people with against people with albinism, especially albinism. grave robberies, might have been opportunistic and driven by greed, Amnesty International also urges the fueled by rumours that vast sums of Government of Malawi and civil society money can be made by selling the organizations to continue to work bones of a person with albinism. collaboratively with the international community, including donors and the Beliefs and attitudes UN Independent expert on the enjoyment of human rights by persons with Some people in Malawi, and across albinism, to end the attacks and sub-Saharan Africa, associate body discrimination. parts of people with albinism with economic fortunes, believing that such body parts bring luck. There is According to the a widely-held belief in Malawi that business people are successful because Canada-based NGO Under they use magic. Some of the victims 18 have been abducted and sold by close the Same Sun, there family members seeking to acquire has been cross-border wealth. Societal attitudes about albinism are not changing and people with trading of body parts of albinism continue to be attacked. people with albinism in In her 2016 report to the UN Human Democratic Republic of Rights Council, the Independent Expert on the enjoyment of human rights by the Congo, Mozambique, persons with albinism stated: South Africa, Swaziland “Dangerous myths feed these attacks on innocent people: many erroneously and Tanzania. believe people with albinism are not human beings, but are ghosts or sub- human and cannot die but only disappear.”20

19. www.sadc.int 20. www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx? NewsID=18502&LangID=E January 2016 10 AMNESTY INTERNATIONAL

Poverty and social conditions There is a strong relationship between what are termed “crimes of need” and Most of the population in Malawi live pervasive poverty. Indeed, the most in extreme poverty,21 leading to the common crimes are those that are acknowledgement among policy makers related directly to household and that crime is one possible means of individual survival.23 People with survival for many. In the Poverty albinism are still associated with the Reduction Strategy Paper of 2002, acquisition of wealth. A human rights the government noted that “poverty activist told Amnesty International that and crime can also be part of a vicious witchcraft and poverty are driving cycle – crime reinforces and increases attacks on people with albinism in poverty, and poverty causes crime. different parts of Malawi. For the ultra-poor, the only means of survival may be stealing food or assets Crime has been on a constant increase from other people.”22 since 2001, principally due to the poverty levels.24 Attacks against people with albinism increase during the farming period/rainy season because “Persons who are facing food and income are scarce during the financial hardships are period before harvest. The combination of poverty, corruption, unemployment, being used to abduct, kill food scarcity and limited sources of income leads people to become frus- or exhume the remains of trated and resort to crime for wealth people with albinism for and material needs. body parts which are According to a UNICEF funded investigative research report on the believed to be sold to local Abductions, Killings and Exhumation as well as cross-border of the Remains of Persons with Albinism in Malawi, “the perpetrators 25 buyers for their end use.” of the atrocities are small-scale business persons, fishermen, farmers UNICEF Report and traditional healers and other un- known wealthy individuals who are lured and motivated by the promise of 21. Data from the UN Commission for Trade and Development riches and change of fortunes in their indicates that 71% of Malawians are living in extreme poverty. activities and lives. There is growing 22. Government of Malawi, Malawi Poverty Reduction Strategy Paper, Final draft, April 2002 evidence that these atrocities are being 23. Patrick Burton, Eric Pelser and Lameck Gondwe, Understand- ing Offending: Prisons and Rehabilitation in Malawi, ISS and organized by some people who have Crime Statistical Division, National Statistical Office, enough money to meet the expenses November 2005, p 1 https://oldsite.issafrica.org/uploads/Book 2005UnderstandPrisoner.PDF incurred in these atrocities. Persons 24. Patrick Burton, Eric Pelser and Lameck Gondwe, Understand- who are facing financial hardships are ing Offending: Prisons and Rehabilitation in Malawi, ISS and Crime Statistical Division, National Statistical Office, November 2005 TOWARDS EFFECTIVE CRIMINAL JUSTICE FOR PEOPLE WITH ALBINISM IN MALAWI 11 being used to abduct, kill or exhume the remains of people with albinism for THE CASE OF body parts which are believed to be sold to local as well as cross-border MISHECK SAMSON buyers for their end use.”25 In late April 2017, Veronica Samson of Cholwe village, Ntchisi district, learned that three men SELLING HUMAN had been arrested for planning to BONES abduct her son Misheck, a two- year-old child with albinism. Two In March 2017, police officers men who had been informed of arrested a 24-year-old man who the plan contacted APAM, who was selling human bones reported worked with the police in the to be of a person with albinism at investigation. Veronica Samson a hotel in the capital, Lilongwe. told Amnesty International in The bones were believed to be April that between January and those of Supririano Duncan, a March 2017 she had heard foot- person with albinism whose grave steps outside her house and had been desecrated in Mchinji. attempts to break in, and that the family had been living in fear.

25. Handbook on offences relating to attacks on people with albinism 12 AMNESTY INTERNATIONAL

WHAT PROGRESS HAS concerned by the lack of profes- sionalism among the police. She MALAWI MADE? said that they do not have the capacity to carry out competent The President and senior government investigations and are prone to officials have publicly condemned accepting bribes. Successful attacks against people with albinism. prosecutions are being hampered The following measures to combat by the absence of legally qualified discrimination and abuse were personnel. She said that the announced following the release of the appointment of a legal desk officer 2016 Amnesty International report: would help in reducing the case backlog. In June 2016, the • In June 2016, a National Techni- Inspector General of Police cal Committee was established announced that all cases concern- which formulated a National ing people with albinism must be Response Plan. handled by senior prosecutors. • The practice direction issued on This announcement has not yet 3 May 2016 by the Chief Justice, yielded positive results since the with a view to ensuring consis- police officers, who are doubling tency and speedy resolution of up as prosecutors, do not have the these cases.26 This was widely requisite legal qualifications to seen as official commitment to effectively present cases and combat impunity and ensure an argue before judicial officers in effective response to attacks and courts of law. abuses. In a June 2017 meeting • The Malawi authorities made with Amnesty International, the several legislative reforms, notably Chief Justice reiterated his to the Anatomy Act and the Penal commitment to deliver justice Code. Prosecutors, lawyers and while stating that this is depend- police officers have received train- ent upon the police investigating ing on the reformed legal frame- crimes professionally and work, but training and knowledge- efficiently and the prosecutorial sharing has not adequately ad authorities successfully presenting dressed the backlog of cases. The cases before them. DPP confirmed that her own office • In June 2017, the Director of is inadequately staffed. Public Prosecutions (DPP) stated • On 20 December 2016 the UNDP in a meeting with Amnesty Inter and the Ministry of Justice and national delegates that she was Constitutional Affairs, with support from UNICEF, launched a technical handbook incorporating legislative

26. A/HRC/34/59/Add.1, Human Rights Council 34th Session, 27 changes to guide investigators, February- 24 March 2017, Report of the Independent Expert prosecutors and magistrates on on the enjoyment of human rights by persons with albinism on her mission to Malawi, pg 16 TOWARDS EFFECTIVE CRIMINAL JUSTICE FOR PEOPLE WITH ALBINISM IN MALAWI 13 WHERE DOES MALAWI NEED TO IMPROVE?

Policing

“Some police ofﬁcers are corrupt and incompetent. It is easy to bribe some of the police ofﬁcers and make them abandon the case.” An activist working to end discrimination against people with albinism

Failure to promptly and thoroughly investigate crimes In her 2017 report to the Human Rights Council, the UN Independent Expert on the enjoyment of human rights of persons with albinism recom- how to handle offences committed mended that: against persons with albinism. a) Malawi authorities train public The handbook analyses, simplifies officials at the national, regional and compiles all offences relating and local levels, including law to attacks against people with enforcement agencies, community albinism, and references relevant police, the judiciary and the laws including the Penal Code, the legislature, on the rights of people Anatomy Act, the Child Care Act, with albinism and the obligations of Protection and Justice Act, the the State in this regard; Trafficking in Persons Act and the (b) Conduct specific training for all Witchcraft Act.27 The handbook police officers, investigators and seeks to strengthen the legal magistrates handling such cases, response to crimes against people including on relevant legislation, with albinism by bringing together combined charges, case law and all applicable charges that can be guidelines regarding attacks.28 filed against suspected perpetrators.

28. A/HRC/34/59/Add.1, Human Rights Council 34th Session, 27 February- 24 March 2017, Report of the Independent Expert 27. www.mw.one.un.org , Govt, UN launch handbook on offences on the enjoyment of human rights by persons with albinism on against persons with albinism, accessed 3 June 2017. her mission to Malawi, pg 16 14 AMNESTY INTERNATIONAL

interview with Amnesty International in Systemic problems in June 2017, the DPP stated that the police are forced to rely on private the Malawi Police Service pathologists. and lack of capacity to During Amnesty International’s visit to carry out thorough Malawi in April 2017, civil society groups and activists working with investigations are at the people with albinism told Amnesty heart of the failure to International about the loss of confidence in the police’s ability to arrest and prosecute effectively end attacks. Communities become increasingly frustrated with suspects in cases of delays and minimal success in the attacks against people administration of justice, often resulting in mob violence. Government with albinism. officials in the justice, home affairs and social welfare ministries interviewed by Amnesty International confirmed that no visible police patrols Systemic problems in the Malawi have been put in place in areas with Police Service and lack of capacity to high incidents of attacks, despite such carry out thorough investigations are recommendations in Amnesty Interna- at the heart of the failure to arrest and tional’s 2016 report. prosecute suspects in cases of attacks against people with albinism. Although police are empowered to prosecute murder cases, there are concerns An official with the about inadequate expertise and lack of professional legal training. Such Department of Disability failures have led to accusations that said that the police have suspects have been granted bail as the police have failed to provide necessary failed to deploy adequate information to the courts. This has led to acquittals of suspects even though officers in communities they had previously confessed to where people with albinism committing the crime, particularly in cases where they were arrested in are at risk, especially at possession of human bones. centres which look after An additional problem is the absence children with albinism. of forensic experts or pathologists within the criminal justice system to determine causes of death. In an TOWARDS EFFECTIVE CRIMINAL JUSTICE FOR PEOPLE WITH ALBINISM IN MALAWI 15

An official with the Department of Administration of Justice Disability said that the police have failed to deploy adequate officers in communities where people with albinism Delays in investigations and are at risk, especially at centres which prosecutions look after children with albinism. Civil society activists expressed concern The administration of justice in Malawi that while there is a significant police is characterized by severe delays at all presence in urban areas, a rural area stages, which undermine the fairness may have only two police stations of trials.29 An accused person has the which may be 20-30 km apart. right to be brought promptly before a judicial officer upon arrest30 and to be “Many people don’t even know tried within a reasonable time once that we have changed laws placed on remand.31 Victims of attacks because nothing is happening are entitled to access to justice through to perpetrators killing people prosecution of perpetrators. The failure to prosecute abuses and attacks with albinism.” against people with albinism and a APAM member interviewed by Amnesty culture of impunity continues to fuel International the killings.

According to the UN Declaration of Basic Principles of Justice for victims THE CASE OF of crime and abuse of ofﬁce, judicial DAILESS LONGWE and administrative mechanisms should be established and strengthened where NKHATA BAY T/A necessary to enable victims to obtain MANKHAMBIRA redress through formal or informal procedures that are expeditious, fair, Mphatso Phiri, aged 21, was affordable and accessible. Victims arrested in Chintheche, Nkhata should be informed of their rights in Bay, after allegedly threatening seeking redress through such mecha- Dailess Longwe, a woman with nisms. The responsiveness of judicial albinism, in her home with a processes to the needs of victims knife on 8 March 2017. Mphatso should be facilitated by, among other Phiri was charged with intimida- factors, providing proper assistance to tion under Section 88 of the victims throughout the legal process, amended penal code; the case protecting witnesses and victims from was ongoing intimidation and retaliation, and

29. Malawi: Justice Sector and Rule of Law, A review by AfriMap and the Open Society Initiative for Southern Africa, Professor Fidelis Edge Kanyongolo, OSISA, 2006, pg115 30. Amnesty International, Fair Trial Manual, page 57 31. Amnesty International, Fair Trial Manual, pages 70 and 143. 16 AMNESTY INTERNATIONAL avoiding unnecessary delays.32 Law enforcement personnel in Malawi “If the criminal justice require further training on investigations system had worked, the procedures to assist them in evidence gathering and competent and qualified attacks against people prosecutors and magistrates will need to be trained on the use of the Hand- with albinism would have book developed with assistance from ended.” UNICEF. Activist interviewed by Amnesty “I was shocked by the International resurgence of violence. When the violence started, the state arrested people and kept them are caught with incriminating evidence, in custody as a deterrent effect, such as hair, teeth or other body parts, but there were no convictions. have been acquitted and those granted Perpetrators were not tried for bail are permitted to return to their the past crimes. In most cases communities as they await trial. This it was clear that the killings leads to fears by victims that suspected were premeditated crimes to perpetrators are not being held accountable. Perceived impunity for kill, as well as to extract bones crimes against people with albinism and other body parts.” significantly reduces the deterrent Activist and lawyer Interviewed by effect of the law and therefore contrib- Amnesty International, May 2017 utes indirectly to the continued wave of attacks.33 Delays in finalizing cases, including of murder, and excessively lenient There are exceptional circumstances sentencing have not provided a strong when an accused may be detained message to would-be offenders and pending trial. The burden rests on the have contributed to demotivating police state to establish that release would officers. The Office of the DPP confirm- create a substantial risk of flight, ed in a meeting with Amnesty Interna- harm to others or interference with the tional in June 2017 that other pressing evidence or investigation that cannot priorities, such as corruption scandals, be allayed by other means.34 deflect the Office’s attention from crimes against people with albinism. Amnesty International is concerned by reports that suspects in Malawi who

33. A/HRC/34/59/Add.1, Human Rights Council 34th Session, 27 February - 24 March 2017, Report of the Independent Expert on the enjoyment of human rights by persons with albinism on 32. Paragraph 6 of the UN Declaration of basic principles of her mission to Malawi, Paragraph 22 pg 634. justice for victims of crime 34. Amnesty International, Fair Trial Manual page 61 TOWARDS EFFECTIVE CRIMINAL JUSTICE FOR PEOPLE WITH ALBINISM IN MALAWI 17

Poor case handling and sees a dead body, they also want to see management the accused.” She said that this often leads to wrongful arrests of people who The measures adopted by the govern- are later released. ment in the criminal justice system have failed to signiﬁcantly reduce the An activist interviewed by Amnesty level of impunity. There have been International stated: “the weakness of prosecutions but, as highlighted above, Malawi’s criminal justice system is that many cases have not been concluded. there were no trials and convictions. The DPP expressed her concerns about If the criminal justice system had the poor quality of police investiga- worked, the attacks against people tions. She told Amnesty International with albinism would have ended.” He that the police often mishandle cases believes that the poor criminal justice due to pressure exerted on them by system has led to failures by the state communities to ﬁnd suspected perpe- to systematically tackle killings of trators. She said, “when the community people with albinism. 18 AMNESTY INTERNATIONAL

Broader problems in the judiciary “There are some cases within courts that are not moving. The judiciary, prosecution and police Government is waiting for in Malawi are currently facing serious donors to come with money so problems including understaffing, that it can resume investiga- inadequately qualified personnel and lack of financial resources, thus tions of the cases of the compromising the criminal justice killings.” system and the rule of law. Although APAM activist and member interviewed the majority of serious cases in the by Amnesty International judicial system are dealt with in magistrates’ courts, the majority of prosecutors are police officers with no legal training. Since the beginning of THE CASE OF 2018 the Judicial Services Commission GILBERT DAIRE has recruited around 15 professional magistrates to improve justice delivery. On the night of 9 March 2017, Prior to this recruitment 4 chief four men attempted to drill magistrates and 6 senior magistrates through the wall of the home in faced challenges in dealing with the backlog of cases. According to a senior Lilongwe of Gilbert Daire, former magistrate interviewed by Amnesty president of the Association of International, most police prosecutors People with Albinism, as he slept. struggle to make sound legal submis- They fled the scene after his sions, resulting in either acquittals or neighbours intervened. A suspect- convictions on lesser charges. ed perpetrator was later arrested after community members reported him to the police, but The price of prosecution he was later acquitted after police were unable to establish a link Amnesty International believes that with the attempted attack. government spending on the justice sector is unsatisfactory and most insti- tutions are funded by donors. Those charged with murder are entitled to legal representation, but most cannot afford the fees and the state is therefore unable to proceed with prosecution. Under the current Legal Aid and Legal Practitioners Act,35 the Law Society of Malawi does not have a structured pro bono services pro- gramme to represent defendants in 35. Legal Aid and Legal Practitioners Act, Cap. 3:04 TOWARDS EFFECTIVE CRIMINAL JUSTICE FOR PEOPLE WITH ALBINISM IN MALAWI 19 such cases, which has contributed to No money to defend suspects the lack of progress in prosecutions. In an encouraging development this The Legal Aid Bureau (LAB), an year, the Legal Aid Bureau (LAB) independent body which was formerly offered to provide legal defence in part of the Ministry of Justice and murder cases and at least 45 lawyers Constitutional Affairs, was set up to from the law society of Malawi ex- make legal aid services more efficient pressed interest in providing pro bono and accessible throughout the country. services. The offer made by some It was intended to be adequately members of the law society must be funded to ensure independence but implemented expeditiously for progress this has not been the case in practice. to be made in the pending murder cases. The LAB provides legal aid in civil and criminal matters to those unable to The DPP told Amnesty International engage a private legal practitioner. Its that the government is unable to fund legal services were expanded to include prosecutions in murder cases as court representation, pre-trial assis- lawyers must be paid travel and subsis- tance, public legal education and other tence allowances for their legal advice. legal advice. However, from March However, the UN has been providing 2016, it became unable to deal with financial support to the government for pending murder cases until the state the prosecution of non-murder-related increased legal aid funding. In 2017 cases. In 2016 the UNDP donated the LAB established a legal aid fund, US$30,000 for the prosecution of 43 but this is yet to become operational non-murder cases, but little progress and its effectiveness has been was made over the following year. hampered by inadequate financial When asked to explain this the DPP support and human resources. Once said that there was a shortage of legally the fund is in place the LAB, in part- qualified prosecutors and police officers nership with donor agencies and the faced challenges in expeditiously DPP’s office, can begin to contribute concluding investigations due to towards reducing the backlog of murder incompetence. The government must cases. As of January 2018, the LAB train police officers who should speed and DPP have started dealing with up investigations in all cases of murder cases at scheduled regional violence against people with albinism court sessions and it is hoped that if and the government must provide this can be sustained and broadened adequate resources for the recruitment to include all serious crimes it would of qualified prosecutors to prosecute strengthen the criminal justice outstanding cases to completion. The response to the plight of people with government, with the assistance of albinism. donors, must adequately fund the LAB to enable them to provide legal defence in murder cases. 20 AMNESTY INTERNATIONAL

Failure to protect During a meeting at the Department of Disability in the Ministry of Gender, persons with albinism Children, Disability and Social Welfare in April 2017, officials told Concern remains within civil society in Amnesty International that the Malawi that the authorities continue Committee on Social Welfare had to display a “laissez-faire” attitude publicly stated that the government towards combating attacks against had failed people with albinism. people with albinism and that they The public officials stated that the have appeared more reactive than Committee had not taken any steps proactive. A local human rights lawyer to ensure protection of the right to stated that “political authorities have life and bodily security of people powers to ask difficult questions to the with albinism. Social activists believe criminal justice system”. He blamed that “radical measures are needed the government for “not asking difficult to galvanise people to denounce questions to government officials in 36 charge.” attacks.”

“The government is complicit in weakening efforts to address THE CASE OF the issue... We need investiga- EDNA CEDRIC tions and full trials to take MACHINGA place. People should be named and shamed and the gaps On the night of 27/28 February should be addressed in the 2016, a gang of unidentiﬁed men broke into a house in Mpakati legal system to address the village in Traditional Authority issue.” Chikwewo , Machinga district, Activist interviewed by Amnesty and killed a nine-year-old twin International boy with albinism, Harry Mokoshoni (also known as Harry Activists told Amnesty international Mockshon). A suspect was that the state has failed to acknowledge arrested and later released due that protection is an ongoing process to delays in the investigation. and reiterated that more effort needs He subsequently was reported to to be channelled towards changing have intimidated and threatened the attitudes and belief systems of the boy’s mother, Edna Cedric. Malawians towards people with She now fears for the safety of albinism. the remaining twin, who has since been taken to a different location.

36. Interview with Bill Abner Mayaya, Chairperson of the National Right to Food Network, May 2017. TOWARDS EFFECTIVE CRIMINAL JUSTICE FOR PEOPLE WITH ALBINISM IN MALAWI 21

Lack of government The National Technical coordination Committee has no terms

In May 2016, the President established of reference, nor a clear a National Technical Committee mandate, and does not comprising representatives from the Ofﬁce of the President and Cabinet, have the competency to Ministries of Gender, Children, Disability and Social Welfare; Justice hold anyone or any ministry and Constitutional Affairs; Home accountable. Affairs and Internal Security; Health, Information, Communications Technology and Civic Education; Local Government; Education, Science and and the effects of the sun on the skin. Technology; and the Inspector General The National Technical Committee has of Police. Its mandate was to facilitate not been able to offer any rehabilitation the implementation of the plans, and redress, including psycho-social strategies and initiatives to end abuses support to survivors and families of and attacks against people with victims. The failure by the National albinism. Despite high expectations at Technical Committee to hold relevant this initiative, however, results so far authorities in the justice and law and have been disappointing. The National order sectors to account and ensure Technical Committee has no terms of that victims have access to justice reference, nor a clear mandate and through investigation and prosecution does not have the competency to hold of cases has contributed to the culture anyone or any ministry accountable. of impunity. Its powers are limited and in April 2018 APAM expressed disappointment “There is no coordination at the lack of political will and within government to effectiveness in implementing plans implement programmes to and initiatives to end abuses and attacks against people with albinism. protect people with albinism. Police are doing awareness In most cases, interventions by govern- in communities without the ment bodies are made separately from department of justice knowing. those of the National Technical Victims are still living in fear Committee. Amnesty International is concerned that the government is not with their attackers in some doing enough to raise awareness about communities.” the challenges faced by people with Department of Disability staff albinism such as discrimination and interviewed by Amnesty International attacks, as well as visual impairment 22 AMNESTY INTERNATIONAL

CONCLUSION support for forensic investigations, compiling post-mortem reports and combating human trafficking, to bring Amnesty International believes that the suspected perpetrators of these human persistent targeting of people with rights abuses to justice. albinism – due to prejudice and mis- understanding of the condition – is There must be a review study of the fueled by the ineffective criminal root causes of the attacks against justice system in Malawi, and to a people with albinism and how cases certain extent a lack of coordination have been dealt with once the accused by members of the National Technical have been brought to court in order to Committee set up to combat attacks. identify gaps and develop strategies to Amnesty International therefore urges the authorities to, among other things, improve its criminal justice system, including by engaging specialist TOWARDS EFFECTIVE CRIMINAL JUSTICE FOR PEOPLE WITH ALBINISM IN MALAWI 23 end impunity. Amnesty International perpetrators of crimes against believes that the identity and motiva- people with albinism to justice, and tion of those suspected of involvement ensure that victims have access to in violence against people with albinism effective remedies. All pending need to be better understood by Malawi cases of murder and violence law enforcement agents in order to against people with albinism must develop appropriate strategies to be expeditiously concluded. counter and combat these crimes. • Public prosecutors involved in cases of attacks against people with Amnesty International is urging the albinism must assist police prose- Government of Malawi to ensure that cutors in framing charges and crimes against people with albinism are investigations. The authorities must prosecuted by prosecutors with appro- phase out using untrained police priate legal qualifications and presided officers to prosecute crimes by over by competent judicial officers. 2020 and train and recruit quali- The relevant authorities must employ fied prosecutors. adequate numbers of legally qualified prosecutors and magistrates to ensure • Strengthen the Malawi Human the effective administration of justice. Rights Commission including through the provision of adequate funding and appointment of legal Recommendations to officers to boost its capacity to the Ministry of Justice and effectively monitor human rights Constitutional Affairs violations specifically targeted at people with albinism. • Conduct training for selected legally qualified prosecutors and • Work with the Law Society of Malawi police officers who handle albinism and the Legal Aid Bureau in provid- cases on the application of the ing legal aid services and pro bono new laws to deal with the crimes services in cases such as abduc- against people with albinism and tions and murder. ensure that those trained are the • Launch a sub-regional action plan ones using the law. with other SADC States such as • Work with the Judicial Service Democratic Republic of the Congo, Commission in facilitating the Mozambique, South Africa, Swazi- training of judicial officers to land, Tanzania and Zambia to effectively handle cases relating to effectively combat the trade in body people with albinism. parts of people with albinism. • Recruit legally qualified prosecutors • Ensure that the Legal Aid Bureau and forensic investigators. and Office of the Director of Public Prosecutions is adequately • Improve the case management resourced to effectively deal with system and bring suspected serious crimes such as murder. 24 AMNESTY INTERNATIONAL

Recommendations in relation • The Technical Committee should to policing provide psychosocial support and counselling to victims and survivors • Ensure that cases of violence of attacks, through the Ministry of against people with albinism are Gender, Children, Disability and promptly, thoroughly and trans- Social Welfare and relevant civil parently investigated, and that society organizations. investigations in all pending cases of murder and abductions are • The Technical Committee should concluded. ensure that early warning rapid response mechanisms are put in • Make reports and case files of their place to guarantee the safety and investigations available to NGOs security of people with albinism. fighting for the rights of people with albinism. • The Technical Committee should promote government support for • Strengthen community policing and sound housing structures and lock- ensure that police patrols are able doors for people with albinism visible in certain key inaccessible to ensure adequate security. regions of Malawi. • Civil society organizations must • Assign lawyers and forensic experts raise awareness or train the media to train and recruit police officers on the importance of effectively with modern investigative techniques reporting about people with including forensic investigations. albinism in Malawi. • Donors should consider granting Recommendations in relation financial support for recruitment of to coordination and cooperation legal desk officers to assist the • The National Technical Committee Legal Aid Bureau and DPP in must have a clear role and defined reducing the backlog of cases mandate with powers to hold min- related to people with albinism. istries accountable. • Donors should consider funding the • The Technical Committee must training of investigators, prosecu- share its reports with its members tors and magistrates in Malawi to and ensure that minutes taken are promote the efficient administration circulated. of justice.

Amnesty International is a global movement of more than Index Number: AFR 36/8634/2018, English, June 2018 7 million people who campaign for a world where human Amnesty International, Southern Africa Regional Ofﬁce rights are enjoyed by all. 97 Oxford Road, Saxonwold, Johannesburg. Our vision is for every person to enjoy all the rights enshrined in the Universal Declaration of Human Rights amnesty.org and other international human rights standards.

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