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Abstract Section 15 of the Criminal Procedure and Evidence Code provides a fascinating automatic review mechanism. It requires the automatic review of sentences which exceed certain thresholds by the High Court and prohibits the continued detention of prisoners once the period of automatic review has lapsed. Due to delays in the review process, most sentences that are subject to automatic review are not reviewed timeously. However, the Malawi Prison Service does not release the offenders concerned as required by law, resulting in the unlawful detention of offenders whose sentences have technically expired. The Judiciary also fails to rectify this problem by reviewing sentences outside the automatic review period. This article examines the proper interpretation of section 15 and its consequences for the revisionary powers of the High Court with a view to highlight the incorrectness of the current approach. 1. INTRODUCTION Section 15 of the Criminal Procedure and Evidence Code (CPEC),1 provides for the automatic review of certain sentences based on the judicial experience of the judicial officer and the extent of the sentence. Automatic review ensures that the High Court exercises its revisionary powers over magistrate courts and thus controls the administration of justice in these courts. There is a great necessity for automatic review of sentences in Malawi given that over 90 per cent of criminal cases are handled by subordinate courts. Moreover, almost all magistrates in Malawi are not qualified lawyers; they are lay magistrates who have completed a 1-year basic law course.2 Unsurprisngly, as Manda tells us, ‘the sentencing practices of a good number of the lay magistrates are problematic. This may be because of the training that the magistrates undergo on sentencing’.3 The High Court has observed in Rep v. Ndelemani that confirmation of matters set down for review is the exception rather than the rule,4 meaning that courts often take corrective measures during the review process. As opposed to the appellate process, the automatic review mechanism was intended as a quick process. In practice, however, it is riddled with inordinate delays. It is in anticipation of such delays that section 15 provides a release mechanism in respect of unconfirmed sentences. However, this safety net does not realize its purpose because there is little, if any, compliance with and enforcement of section 15 by the Malawi Prison Service and the Judiciary. This article is an exposition of the legal framework for automatic review in Malawi and the approach of the courts to unconfirmed sentences. It argues that both the Judiciary and the Prison Service facilitate a great injustice against prisoners by failing to fully enforce the provisions of section 15. 2. THE LEGAL FRAMEWORK FOR AUTOMATIC REVIEW The legal framework for automatic review is stipulated in section 15 of the CPEC:5 Certain sentences to be confirmed on review by High Court before being given effect and so on Where in any proceedings a subordinate court imposes a fine exceeding ‘K1,000’; any sentence of imprisonment exceeding in the case of a resident magistrate’s court, 2 years; in the case of a magistrate’s court of the first or second grade, 1 year; or in the case of a court of a magistrate of the third or fourth grade, 6 months; any sentence of imprisonment upon a first offender which is not suspended under section 340. it shall immediately send the record of the proceedings to the High Court for the High Court to exercise powers of review under Part XIII. No person authorized by warrant or order to levy any fine falling within subsection [(1)(a)],6 and no person authorized by any warrant for the imprisonment of any person in default of the payment of such fine, shall execute or carry out any such warrant or order until he has received notification from the High Court that it has in exercise of its powers of appeal or review confirmed the imposition of such fine. An officer in charge of a prison or other person authorized by a warrant of imprisonment to carry out any sentence of imprisonment failing within subsection [(1)(b)(i), (ii) or (iii)]7 shall treat such warrant as though it had been issued in respect of a period of 2 years, 1 year, or 6 months, respectively, as the case may be, until such time as he shall receive notification from the High Court that it has in exercise of its powers of appeal or review confirmed that such sentence may be carried out as originally imposed. Nothing in this section shall affect or derogate from the powers of the High Court to reverse, set aside, alter, or otherwise deal with any sentence of a subordinate court on review or appeal. When a subordinate court has passed a sentence or made an order falling within subsection (1), it shall endorse on the warrant or order that the sentence or order is one required to be submitted to the High Court for review and which part if any of the sentence or order may be treated as valid and effective pending such review. In this section, ‘sentence of imprisonment’ means a substantive sentence of imprisonment or a sentence of imprisonment in default of payment of fine, costs, or compensation or a combination of such sentences and includes a sentence of imprisonment the operation of which is suspended under section 339. Section 15(1) requires automatic review of every sentence that is beyond 2 years for resident magistrates, 1 year for first or second grade magistrates, and 6 months for third or fourth grade magistrates. Automatic review will also be necessary where the aggregate of the sentences imposed on an offender in the same trial falls under section 15 even though the individual sentences do not.8 This means that the maximum period of imprisonment in the absence of review is 2 years. The benefits of section 15(3) are profound once it is recalled that the maximum prison terms that can be imposed by resident, first grade, second grade, third grade, and fourth grade magistrates are 21, 14, 10, 3 years, and 12 months respectively. Section 15(1)(b) as read with section 15(6) also requires suspended sentences to be subjected to automatic review. Therefore, in the best case scenarios, the application of section 15(3) can mean that a prisoner can escape 19, 13, 9, 2 years, or 6 months of further imprisonment depending on the court in which he is sentenced. On the other hand, a prisoner may be unlawfully detained in breach of section 15(3) for the exact periods of time. The difference between the sentence imposed and the actual sentence served will even be greater in light of section 107 of the Prisons Act9 which allows for remission of up to a third of the sentence. There is nothing in section 15(3) that excludes the application of remission to unconfirmed sentences. In this case, the remission must be calculated on the basis that the sentences imposed are 2 years, 1 year, or 6 months as the case may be.10 The actual sentence of the court cannot be used for this purpose until confirmation. The uncertainty of the actual sentence to be served created by section 15(3) makes it even more important that the offender concerned must be informed of how the sentence will be implemented at the time it is imposed. Sentencing courts must, therefore, make the provisions of section 15 clear to offenders so that they are aware of their rights. This is consistent with the principle of legality which requires, inter alia, that there must be clarity as to how a sentence will be executed. Section 15(2) prohibits the execution of warrants in respect of fines falling under section 15(1)(a) until confirmation is made on appeal or review.11 Thus, prison authorities must not carry out a default sentence in respect of a fine beyond K1,000 (about US$1.38) without confirmation.12 Read with section 29(3) of the Penal Code,13 this means that every default sentence beyond 1 months’ imprisonment is subject to automatic review.14 Accordingly, an offender who has been ordered to pay a fine above K1,000 is under no duty to pay it until it is confirmed. Ultimately, the dictates of section 15(2) require that an offender who was in custody during the trial must be released if a court imposes a fine subject to automatic review. Otherwise, section 15(2) will have no consequence for such offenders. This would in turn have a discriminatory effect in that only offenders released on bail during trial will benefit from the provision. This understanding is reinforced by the High Court which has stressed that the legislature and courts look at imprisonment in default of monetary penalties grudgingly hence the requirement that fines must be checked ‘for reasonableness and fairness’.15 In practice, section 15(1)(a) easily translates into a situation where no offender will serve an immediate default sentence for failure to pay since a fine below K1, 000 is highly unlikely. Section 15(3) effectively states that prison authorities cannot keep sentenced persons beyond the terms stipulated in section 15(1)(b) unless they are confirmed on appeal or review. This is why section 15(5) requires a court to clearly indicate on the warrant or order which part of the sentence or order is valid and which is pending review.16 Section 15(3) thus creates a default early release mechanism for offenders. This serves to prompt courts to act speedily in reviewing the sentences.17 The maximum sentence that can be served under section 15 is 2 years. Any sentence between 6 months and 2 years is subject to automatic review depending on the level of the sentencing court. In the case of first offenders, section 15(1)(c) makes it plain that any immediate custodial sentence is subject to automatic review regardless of its length. This reinforces section 340 of the CPEC which requires that first offenders should serve immediate custodial sentences only if there is no other appropriate means of dealing with them. This provision necessitates the prioritization of non-custodial forms of punishment in sentencing first offenders.18 3. SECTION 15 AND THE RIGHT TO A SPEEDY TRIAL NyaKaunda Kamanga J in Rep v. Isaaki held that section 15(3) ensures that there is no prolonged confinement of prisoners in the face of the risk of an unfair trial arising from a disproportionate sentence.19 Therefore, section 15(3) creates a presumption in favour of an offender that a sentence longer than those stipulated is disproportionate in the absence of confirmation. Section 15(3) is also important as it facilitates the principle of legal certainty in the enforcement of sentences. The law does not stipulate any time limits for the review of sentences by the High Court. As such, a prisoner whose sentence is subject to automatic review can be kept in limbo for the entire period of the sentence. Section 15 curtails this undesirable situation by prohibiting the detention of an offender beyond the stated periods. In a way, this acts as a limitation on the leeway given to the High Court as to the time within which review must be done. It is, therefore, vital that due attention is paid to section 15(3) and indeed section 107 of the Prisons Act in the review process to avoid any unwarranted early release of prisoners.20 It can be said then that section 15 echoes the principle of restraint in the use of custodial sentences by providing an important mechanism for limiting the use of imprisonment. To achieve this, it is paramount that review is done speedily.21Rep v. Nambazo held that the right to a speedy trial or criminal process extends beyond the trial in the court of first instance; thus, a sentenced person has a right to speedy review and appeal.22 This is important since the liberty of a prisoner is at stake.23 As a purely court-driven process, the timeous review of cases depends largely on the timeous availability of the court record before the reviewing court. Accordingly, section 15(1) provides that where a sentence is subject to automatic review, the sentencing court must ‘immediately’ send the court record to the High Court for review.24 The High Court must also act with speed in setting down and determining the matter.25 According to paragraph 6 of the Performance Standards of the Judiciary, the review process must be completed within 21 days.26 Ideally, the review process should be quicker than appeal which is an inherently slow process. This is not the case in practice. For instance, in Rep v. Bamusi review was done almost 3 years after the sentence was imposed.27 In fact, the confirmation process is so fraught with delays that it is common to review sentences after they have been served in full.28 Since confirmation of matters set down for review is the exception rather than the rule,29 delays in the review process usually result in gross injustice to a prisoner or the public as the sentence served may be excessive, inadequate, unnecessary, or indeed outrightly unlawful.30 Delays in the review process also compromise the right to a speedy trial, the right of access to justice and the right to an effective remedy.31 In addition, delays in both reviews and appeals leave offenders in suspense as to what their punishment is as they anticipate the outcome of the process. Reducing a sentence where a substantial part has been served is an illusory remedy.32 Moreover, the practical impact of delays in the review process may cause grievance among prisoners in view of section 15(3). For instance, an armed robber sentenced to 10 years by a second grade magistrate may end up serving only 1 year if the sentence is unconfirmed. Meanwhile, a prisoner convicted of the less serious offence of malicious damage and sentenced to 4 years by a resident magistrate can end up serving the full term if the sentence is timeously confirmed. Such differential outcomes may also be traced to the locality of the court in which an offender was tried; the further from the High Court a subordinate court is located, the greater the likelihood that review will be delayed due to transportation problems. This perpetuates inequalities in the treatment of offenders and a sense of injustice. Unfortunately, the problem of delays in the review system is a challenge that is unlikely to be resolved in the near future. 4. RELEASE OF OFFENDERS SUBJECT TO AUTOMATIC REVIEW (A) Release Pending Automatic Review Section 16(1) of the CPEC provides that where a court imposes a sentence that falls under section 15(1), it may release the convict on bail upon application pending confirmation.33 In this case, the term of imprisonment will run from the date the convict starts to serve his sentence after such confirmation.34 On a plain reading of section 16, release need not be granted at the same time as the sentence is imposed; it can be done any time before the sentence has been confirmed. Hence, the provision can be used where there are delays in the review process. Section 355 grants similar powers to subordinate courts in cases of appeal. In practice, release under section 16 is rare, even where the accused is legally represented. This could either be because of ignorance or a perception on the part of the defence that such an application is likely to be unsuccessful.35 Previously, a court could also release a convict under section 16 ‘in its discretion’. This was because before the 2010 amendment, section 16(1) stated that a court which imposes a sentence requiring automatic review ‘may in its discretion and on the application of the’ accused grant bail pending confirmation. In its review of the CPEC in 2007, the Malawi Law Commission considered that the word ‘and’ could either mean that the convicted person has to apply for bail or alternatively that the court has to exercise the discretion to grant bail in the absence of the application. The Commission was of the view that the second scenario is unsatisfactory and [recommended] that the words ‘in its discretion and’ be deleted to remove ambiguity.36 This view, that the word ‘and’ could effectively mean ‘or’ such that it created an alternative, is not supported by the ordinary meaning of the word ‘and’. In ordinary use, ‘and’ is conjunctive; it does not create alternatives as is the case with the word ‘or’ which is disjunctive.37 In terms of section 16, ‘and’ should have more properly been seen as a typographical or other error since it seems the legislature intended to create a situation where the court could decide to release the convict on bail even where he did not apply for it. This is supported by the fact that the discretionary power to release cannot logically co-exist with the need for an application. The ius strictum rule demands that criminal provisions must be construed restrictively in favour of the accused person. Lawmakers should not be too quick in striking down a provision that favours liberty. Hence, the assumed ambiguity in section 16(1) should have been removed by simply substituting ‘and’ with ‘or’. Further support for the discretionary nature of section 16(1) can be found in section 355(1) of the CPEC which details that a notice or petition of appeal shall operate as a stay of execution of any sentence or order, but the subordinate court which passed the sentence or made the order, or the High Court, may order that any such sentence or order be stayed pending the hearing of an appeal and if the appellant is in custody that he may be released on bail, with or without sureties, pending such hearing. There is no reason for limiting the power in section 355(1) to cases where an appeal is intended and excluding those where a sentence falls for automatic review. A court considering release under section 16 will be bound by the principles applicable when granting bail post-conviction. Therefore, taking away a court’s discretionary power in section 16 appears to be unjustifiable. On the other hand, it can be argued that since the presumption of innocence expires upon conviction, the rules governing pre-trial bail should not be the same post-conviction; that is, a convict must apply for bail post-conviction unlike at the pre-trial stage where a court must consider granting bail mero motu. However, where the law states otherwise, there is little that can be said against it, especially as here where the exception is in favour of an accused person’s liberty. This requires that clear arguments be put forward to conclude otherwise, a thing the Commission failed to do in this case. Indeed, the Commission did not explain why it would be ‘unsatisfactory’ for a court to release a person under section 16 on its own motion. This discretionary power to release an offender mero motu is particularly important in Malawi where most accused persons are unrepresented, uneducated38 and not knowledgeable of the law. The Commission could have recommended guidelines to be followed in exercising the discretion to release an offender pending review, such as that a court may release the accused only if it is satisfied that there are exceptional circumstances. (B) Release in the Absence of Automatic Review (i) Failure by the Malawi Prison Service to Enforce Section 15(3) The primary duty to enforce release under section 15(3) falls on the Malawi Prison Service. To be sure, it requires the Prison Service to release offenders in the absence of review. Put differently, the continued detention of such prisoners beyond the periods stated in section 15(1)(b) is unlawful and amounts to a violation of the right to liberty guaranteed in section 19 of the Constitution. In practice, offenders are not released when their sentences lapse under section 15. Writing in 2009, Madise observed that there was no record of instances in which section 15(3) had been invoked by the Prison Service.39 This observation still rings true today. Case law lends credence to this assertion in that, in some cases, prisoners who should have long been released are in custody at the time of appeal or review. The failure by the Prison Service to invoke section 15(3) is an infringement of the prisoners’ right to liberty. The deprivation of liberty must be lawful throughout the period of imprisonment. Therefore, detention in breach of section 15(3) is unlawful from the time offenders qualify for early release. Section 42(1)(e) of the Constitution provides that a sentenced prisoner can challenge his detention before a court of law and enforce his right to be released promptly in terms of section 42(2)(f). Section 15(3) provides a strong ground for such a challenge. From its wording, which is in mandatory terms (it uses the word ‘shall’), it is difficult, if not outright impossible, to envisage a situation where a court can hold continued detention in breach of the provision lawful. Indeed, where a sentence is subject to automatic review under section 15, section 15(5) requires that the warrant must indicate ‘which part, if any, of the sentence or order may be treated as valid and effective pending review’. Further, in terms of Form XXVI (Warrant of Commitment), the officer in charge of the prison concerned is directed thus: Unless confirmation of the said sentence shall sooner be communicated to you by … you are required to release the prisoner at the expiration of the period appropriate in the case of a sentence of … [period permitted by section 15(1)] months imprisonment’.40 This means that in the absence of confirmation, the sentence is invalid to the extent that it exceeds the periods stated in section 15(1). It is clear then that the failure on the part of the prison authority to release offenders in accordance with section 15(3) is a breach of the right to liberty and amounts to unlawful imprisonment. This problem can partly be addressed by the courts by releasing offenders whose detention is in breach of section 15(3). Unfortunately, courts have not seized the opportunity to enforce the law in this regard. (ii) Judicial Failure to Enforce Section 15(3) As noted earlier, section 15(3) dictates that in the absence of automatic review, a sentence will expire upon lapse of the periods prescribed in section 15(1). The fact that a sentence has been served in full or, in the case of a sentence subject to automatic review, the review period has lapsed, does not preclude the duty to review.41 Courts usually confirm sentences already served;42 it has even been held that where a sentence has been fully served, ‘the best course to take is to confirm the conviction and sentence’.43 Confirmation of sentences based solely on the fact that a sentence has been served is detrimental to the right of review aimed at verifying the correctness of a conviction and a sentence. This has an impact on future sentencing such as qualifying for a preventive sentence under section 11 of the CPEC which requires, among other things, that the offender must have ‘been sentenced on at least two previous occasions to imprisonment, other than a [suspended] sentence which has not taken effect’.44 Sentencing also has implications beyond the criminal justice system. Hence, courts must to diligently review a case even where the prisoner has been released. A more poignant problem is the failure of courts to enforce section 15(3). It appears that there is no case in which a prisoner has challenged continued detention on the basis of section 15(3). Worryingly, courts have not been keen to enforce release under this law despite being routinely presented with an opportunity to do so in cases where automatic review has been delayed. In practice, courts fall short of enforcing the early release mechanism under section 15(3) by reconsidering sentences after the review period has lapsed. Indeed, courts do not order the release of an offender if the review period has elapsed even where they have knowledge of this fact. In Rep v. Moffat for instance, the court reduced the sentence despite holding that ‘prison authorities cannot and should not keep prisoners in breach of section 15’.45 In Rep v. Namasita, the court enhanced the sentences where the defendants were in custody a year after the review period had elapsed.46 In cases where a prisoner is absent in court but should have been released under section 15(3), courts resort to passing an ‘if sentence’. This refers to the practice where due to uncertainty as to whether a prisoner has been released under section 15(3), a court imposes a sentence on condition that it will take effect only if the prisoner is still in custody.47 This is arbitrary and infringes the right to equality since offenders who are still in custody in breach of section 15(3) or for other reasons are more likely to serve enhanced sentences than those who have been released pursuant to the same provision. The tendency to increase sentences after the period for review has lapsed is also inconsistent with the principle of double jeopardy and unlawful. A court has no power to reconsider a sentence after the automatic review period has lapsed for the simple reason that the sentence will have expired already. Enhancing such a sentence is equal to enhancing a sentence after it has been served in full. Accordingly, an unconfirmed suspended sentence that falls within the ambit of section 15(1)(b) cannot be revived upon a breach of the conditions of its suspension. The practice of enhancing sentences after they have been served can be traced back to least 1975 when, in Rep v. Njoloma, the High Court increased a fully served 3-year sentence to 7 years on review.48 Such an enhancement is tantamount to punishing an offender twice. Once a sentence expires, it cannot legitimately be extended since an accused must be deemed to have paid his dues for the crime he committed.49 Therefore, any purported enhancement is in fact a new sentence altogether. This infringes the prohibition against double punishment and is, therefore, inconsistent with section 42(2)(f)(viii) of the Constitution as well as section 20 of the Penal Code which provides that no person shall be punished twice for the same offence.50 Courts have not definitively moved away from the position in Njoloma. Although they usually refrain from enhancing sentences that have already been served,51 this is not done on the basis that a court cannot lawfully enhance such a sentence. It is often held that it is ‘unfair’ to recall a prisoner who has served his sentence or regained his freedom to serve an enhanced sentence and that courts must refrain from doing so.52 On the face of it, this seems to be a satisfactory position. However, it is fundamentally flawed as it assumes that a court in fact has the power to recall such a prisoner and enhance his sentence but is simply ‘reluctant’ to do so. A court has no power to recall a prisoner or alter an a sentence that has expired either because it has been served in full or unconfirmed in terms of section 15(3). Another problem with the supposed ‘reluctance’ to recall prisoners relates to the right to equality. Recall of a prisoner will only be necessary where he has in fact been released from prison. As such, prisoners who are still in custody after the expiry of their sentences are in greater jeopardy of having their sentences increased. Indeed, courts do not hesitate to order a prisoner who is in custody at the time of review to serve an enhanced sentence, regardless of whether the sentence has been served in full. This results in discrimination amongst prisoners since those who are in custody are subject to an enhancement while those who have been released are not. This point is well illustrated by Rep v. Mawaya. Here, the court enhanced the sentence of an offender, who happened to still be in custody, from 3 to 9 years although his co-accused had already served their 3-year sentences and were at liberty at the time of review.53 It can be argued that in the interest of justice, equality, and fairness, a court must not increase a sentence for an offender when his co-accused have already served the original sentences. Courts have also held that it is unjust to enhance a sentence after a substantial part has been served. For instance, in Rep v. Msodoka, the court refrained from enhancing the sentence 13 months after it was imposed, holding that the state must apply for an enhancement immediately after a sentence is imposed.54 How should this principle be applied in cases where the sentence is subject to automatic review? In Rep v. Magombo, the accused were convicted of robbery and sentenced on 7 November 2010 for 6 years.55 Review was not done within 2 years as required by section 15(3), with the case only coming for confirmation on 12 July 2013. Mwaungulu J(as he then was) was of the view that the sentence should be enhanced to 9 years. He, however, refrained from enhancing it, reasoning that late enhancements disrupt a prisoner’s post-release plans and are thus inimical to social reintegration:56 The prisoners here have an expectation that their sentences would end shortly, by 7 November 2013 [in 6 months’ time]! If this court had acted earlier, [and decided] on review … to increase the sentence as suggested, the prisoners would have known much earlier and adjusted accordingly. To increase the sentence at the twilight of their sentence would infringe their right to legitimate expectation or interest under section 43(a) of the Constitution. In the absence of stipulation as to when the High Court is supposed to review or confirm the sentence, the High Court was supposed to do so “without undue delay”. The administrative actions in sections 25 and 26 of the Courts Act and section[s] 15 and 160 of the [CPEC] are supposed to be done procedurally and fairly in a manner that they do not impinge on the legitimate expectations and interests of prisoners. It is unfair for the court to increase the sentence of offenders at the twilight of their expiry!57 The finding of the court is laudable as it provides authority for the proposition that enhancing a sentence at a late stage is unconstitutional. This principle can also be extended to delayed appeals. If the appellate process has delayed such that the expiry of the sentence is nigh, a court should refrain from enhancing the sentence, especially where the delay has not been occasioned by the accused. The crucial question is: at what stage of a sentence does a right to legitimate expectation arise as to when it will expire? The court in Magombo was more concerned with the proximity of the expiry of the sentence than the period served. An argument can also be made that a court should also consider the time already served independently of the time remaining. For instance, just as a court should not enhance a sentence where a prisoner who has served 5 and a half years of a 6-year sentence, it should also not enhance that of one who has served 3 years of a 10-year sentence. The enhancement of a sentence long after its imposition also brings about uncertainty. This argument is valid only in cases where a confirmed sentence is taken on appeal. In automatic review cases, it would be scandalous and untenable to hold that prisoners have a legitimate expectation in relation to the prescribed default sentences in the absence of automatic review and hence that these sentences should not be enhanced at the ‘twilight’ of their expiry. This is principally because the sentence is expressly subject to automatic review from the beginning. At the very least, a prisoner can only hope that review will delay long enough to entitle him to release under section 15(3). While Magombo has its strengths, it fails to realize that the offenders it was dealing with fell within section 15(1)(c) of the CPEC as they were first offenders sentenced to immediate imprisonment. Consequently, by operation of section 15(3), coupled with the fact that the sentences were initially ordered to run from the date of arrest, the sentences had in fact legally expired on 7 November 2011, 6 months after it was passed by the resident magistrate! Thus, the court had no power at all to enhance the sentences and should instead have ordered the release of the accused as their continued detention was unlawful.58Magombo illustrates that if section 15(3) is taken seriously, there is a very real possibility that in light of lengthy pre-trial custody periods (which are often literally deducted from the sentence imposed) the delays in review can lead to situations where prisoners are released immediately upon sentencing by operation of either section 15(1)(b) or (c)! (iii) The Impact of Section 15(3) in Appeal Cases How should section 15(3) operate in cases where an appeal is underway? Section 15(4) provides that section 15 does not preclude the High Court from exercising its appellate or revisionary powers. This means that in exercise of its appellate powers, the court may enhance a sentence of an offender who is being detained in violation of section 15(3) or even after an offender has been released under section 15(3). This would be an undesirable position that creates a dilemma for offenders whose sentences are subject to automatic review and yet wish to exercise their right to appeal. It is also difficult to reconcile section 15(4) with section 15 as a whole. The wording of section 15(3) makes it clear that a sentence expires if it is not confirmed in accordance with section 15(1)(b). This is supported by clause 51(2)(b)(i) of the 2003 Prisons Bill which states that a sentence is complete when it is not confirmed in accordance with section 15 of the CPEC. Therefore, once he completes his prison sentence under section 15(3), a prisoner’s right to liberty is fully restored and he has a right to be free from arbitrary deprivation of his liberty.59 The offence he was convicted of can no longer provide a justification for further imprisonment. This means that enhancing such a sentence is in effect ordering a new sentence altogether thus subjecting an offender to being punished twice for the same offence. This is not only unfair and unjust but also lacks legal basis. A court has no jurisdiction to alter the sentence of a prisoner detained in breach of section 15(3); the sentence can neither be enhanced or reduced. The period stipulated in section 15(1)(b) having expired, the offender is essentially a free man as he has served his punishment in full. It is important to note that a reduction in such circumstances might still result in a sentence beyond the minimum prescribed. For instance, 18 months after the stipulated review period had lapsed, the court in Rep v. Kufandiko reduced the sentence from 9 to 7 years. However, this was in effect an extension of the 2-year sentence permitted in the absence of review.60 Therefore, the operation of section 15(3) should not be affected by the fact that an appeal lies from the sentence or conviction. After all, without confirmation, the full sentence cannot be served as it is invalid. Moreover, section 362(3)(a) of the CPEC states that an appeal is not a bar to review. This may be difficult to reconcile practically since there is a possibility that two judges might consider the same case simultaneously and come to different conclusions. However, section 15(3) may be particularly useful where the appeal is delayed beyond the review period. In such cases, an appellant must not be penalized for exercising his right to appeal by denying him the benefit of section 15(3). Thus, the fact that an appeal has been lodged should not be a hindrance to an offender’s release in such circumstances.61 5. CONCLUSION The automatic review of sentences by the High Court is an important aspect of the administration of justice in Malawi as it acts as a check over the correctness of cases decided by subordinate courts. Given the large population of indigent and unrepresented prisoners in the country, the automatic review mechanism provides a welcome opportunity for prisoners to have their cases adjudicated upon by a higher court without the vagaries and expense of an appeal. The law requires the release of offenders whose sentences have not been confirmed timeously. However, both the Malawi Prison Service and the Judiciary do not comply with this requirement. The result is that most prisoners are unlawfully detained and their right to liberty is infringed. Further, by enhancing or reducing the sentence after the automatic review period has lapsed, the principle of double jeopardy and ultimately the right to a fair trial is violated. It is, therefore, recommended that the Judiciary should work on speeding up the automatic review process and revisit its approach to automatic review beyond the allowable time. Logically, it should follow that if, as held in Magombo, it is undesirable and indeed unconstitutional to enhance a sentence where a substantial part has been served, then the question of enhancing a sentence that has already been served in full by operation of section 15 should not arise at all. The Prison Service should also release offenders as required by law in cases where review is delayed. Lastly, offenders whose sentences are subject to automatic review must be informed of their rights under section 15 during sentencing so that they may initiate the review process and perhaps take action once their detention becomes unlawful. For offenders subject to default sentences, informing them of these rights will mean that they will know that they are effectively set at liberty pending confirmation of their sentences. The Legal Aid Bureau and the Director of Public Prosecutions can also initiate the review process. However, the state has little impetus for this, given that offenders are likely to serve their full sentences as they remain in prison even after the lapse of the review period. On the other hand, the Legal Aid Bureau is chronically understaffed and likely to commit its limited resources to other matters. This leaves the matter largely in the hands of the Judiciary and the Prison Service. This paper was researched and written during my tenure as a Postdoctoral Research Fellow hosted by the Public Law Department at the University of Cape Town, South Africa. Funding from the University Research Council of the University of Cape Town is gratefully acknowledged. Footnotes 1 Ch. 8:01 of the Laws of Malawi, as amended by Act 14 of 2010. 2 KT Manda ‘Overcrowding and its Effects on the Health of Prisoners in Malawi: A Role for the Malawian courts?’ in Southern Africa Litigation Centre et al (eds) Using the Courts to Protect Vulnerable People: Perspectives from the Judiciary and Legal Profession in Botswana, Malawi and Zambia (2015) 32, 35. 3 ibid. 4 Rep v. Ndelemani Confirmation Case No 149 of 2000 (unreported) (HC). 5 The Supreme Court of Appeal has no powers of review: see section 11(1) of the Supreme Court of Appeal Act, Ch. 3:01 of the Laws of Malawi. 6 The CPEC erroneously refers to subsection 1(b) instead of 1(a). This is due to a an oversight by the drafters of the amending Bill which deleted the previous section 15(1)(a) which referred to corporal punishment now abolished by the Constitution. As a result of this deletion, para. (b) became para. (a) while (c) became (b) and (d) (c). However, corresponding amendments in the subsections were not made. 7 The CPEC erroneously refers to section 15(1)(c)(i), (ii) and (iii) instead of 15(1)(b)(i), (ii) and (iii). 8 Rep v. Mpeketula [1971–1972] 6 ALR Mal 47 (HC). 9 Ch. 9:02 of the Laws of Malawi. 10 Remission of sentence by the prison authorities is permissible for all sentences except in cases of life imprisonment and sentences below 1 month: see section 107(1) of the Prisons Act. 11 Section 15(2). 12 Rep v. Napolo Confirmation Case No 932 of 1999 (unreported) (HC). 13 Ch. 7:01 of the Laws of Malawi. 14 Section 29(3) of the Penal Code provides that the maximum period for any default sentence below K1000 is 1 month. Fines between K1000 and K3000 can attract no more than 3 months’ imprisonment. 15 See Rep v. Napolo Confirmation Case No 932 of 1999 (unreported) (HC), where Mwaungulu J (as he then was) observed: ‘There has been great injustice to the defendants if they have had to serve the full course of the default sentence. The injustice would have been avoided by this court being more punctilious with the safeguards and procedures introduced by the [CPEC]’. At the time of the judgment, automatic review applied to fines exceeding K100 (about US$0.14). 16 See Rep v. Moffat Confirmation Case No 734 of 1999 (unreported) (HC). See also Rep v. Thomu [1964–1966] 3 ALR Mal 212 (HC) holding that the lower court must also clearly indicate on the record which sentences require confirmation. 17 Rep v. Munthali Confirmation Case No 647 of 1999 (unreported) (HC). 18 Rep v. Jordan Confirmation Case No 288 of 2013 (unreported) (HC); Rep v. Tomasi  2 MLR 70 (HC) 71–72; Rep v. John [1978–1980] 9 ALR Mal 207 (HC). 19 Rep v. Isaaki Confirmation Case No 410 of 2005 (unreported) (HC) 2. 20 Rep v. Alumando Confirmation Case No 588 of 1998 (unreported) (HC). 21 Rep v. Munthali Confirmation Case No 647 of 1999 (unreported) (HC). To facilitate speedy reviews, section 362(2) of the CPEC provides that no party has a right to be heard on review. The High Court has the discretion to allow such representation or not: section 363(1); section 28 of the Courts Act, Ch. 3:02 of the Laws of Malawi. However, an order adverse to the accused cannot be made in his absence: see Rep v. Solomoni  MLR 370 (HC) 372; Rep v. Ntaba Confirmation Case No 108 of 1995 (unreported) (HC); Rep v. Kayenda Confirmation Case No 220 of 2003 (unreported) (HC); Rep v. Anderson [1923–1960] 1 ALR Mal 528 (HC) finding that concurrent sentences cannot be ordered to run consecutively without hearing the accused. 22 Rep v. Nambazo Confirmation Case No 643 of 1999 (unreported) (HC). See also Rep v. Nhlema Confirmation Case No 502 of 1994 (unreported) (HC); Rep v. Nalumo Confirmation Case No 489 of 2000 (unreported) (HC); Rep v. Bayani Confirmation Case No? of 2000 (unreported) (HC) (case number incomplete on original judgment, copy on file with author). 23 Rep v. Munthali Confirmation Case No 647 of 1999 (unreported) (HC). 24 Section 15(1). 25 Rep v. Solomoni  MLR 370 (HC) 372. 26 The trial court must send the court record to the High Court within 7 days of the judgment and the clerk must bring it to the attention of the judge immediately. The High Court must then determine the matter within 7 days and inform the accused of the outcome within 7 days thereafter. 27 Rep v. Bamusi Confirmation Case No 261 of 2011 (unreported) (HC). 28 See, for instance, Rep v. Loudon Confirmation Case No 68 of 2002 (unreported) (HC); Rep v. Mkandawire Confirmation Case No 425 of 2002 (unreported) (HC); Rep v. Kamanga Confirmation Case No 35 of 2001 (unreported) (HC); Rep v. Mshani Confirmation Case No 565 of 2003 (unreported) (HC); Rep v. Moffat Confirmation Case No 123 of 1998 (unreported) (HC); Moffat v. Rep Confirmation Case No 734 of 1999 (unreported) (HC); Rep v. Nambazo Confirmation Case No 643 of 1999 (unreported) (HC); Rep v. Ndelemani Confirmation Case No 149 of 2000 (unreported) (HC). Rep v. Menard Confirmation Case No 951 of 2000 (unreported) (HC); Rep v. Alumando Confirmation Case No 588 of 1998 (unreported) (HC). 29 Rep v. Ndelemani Confirmation Case No 149 of 2000 (unreported) (HC). 30 For examples of wrongly served manifestly excessive sentences, see Rep v. Ngabu Confirmation Case No 196 of 1999 (unreported) (HC); Rep v. Jongwe Confirmation Case No 1211 of 1995 (unreported) (HC) where an offender served imprisonment instead of paying a fine; Rep v. Mofolo Confirmation Case No 651 of 1999 (unreported) (HC) where immediate imprisonment was served instead of a suspended sentence. For wrongly served lenient sentences, see Rep v. Chapendeka Confirmation Case No 451 of 2000 (unreported) (HC); Rep v. Chimaliro Confirmation Case No 461 of 2000 (unreported) (HC); Rep v. Kayange Confirmation Case No 458 of 2003 (unreported) (HC); Rep v. Khuluma Confirmation Case No 170 of 1995 (unreported) (HC) where 18 months were served for robbery instead of 4 years; Rep v. Moffat Confirmation Case No 123 of 1998 (unreported) (HC) where a fine was paid in circumstances warranting immediate imprisonment; Rep v. Wyson Confirmation Case No 647 of 1999 (unreported) (HC) where 20 months were served instead of 36–42 months. 31 M Msisha ‘Judicial Accountability and the Right of Access to Justice’ in Malawi Judiciary Judges Conference on Independence, Accountability and Transparency (2007) 147, 162. 32 Rep v. Domingo Confirmation Case No 850 of 1990 (unreported) (HC). 33 The power to confirm used to be a separate power. It is now exercised in the course of appeal or review: see Matawali v. Rep [1973–1974] 7 ALR Mal 89 (HC). 34 Section 16(2). 35 There appears to be no reported case on the matter. 36 Malawi Law Commission Report of the Law Commission on the Review of the Criminal Procedure and Evidence Code (2007) 24. 37 Rep v. Makwakwa [1961–1963] 2 ALR Mal 350 (HC). 38 See Ministry of Women and Child Development ‘The Development and State of Adult Learning and Education (ALE): A National Report of Malawi’ (April, 2008) 4. 39 DTK Madise ‘Due Process of the Law: Some Issues’  4(1) Malawi Judiciary Newsletter 8, 10. 40 Section 2 of the Criminal Procedure (Forms) Notice. 41 Rep v. Bamusi Confirmation Case No 261 of 2011 (unreported) (HC) 2; Rep v. Kufandiko Confirmation Case No 126 of 2009 (unreported) (HC); Rep v. Mlauzi Confirmation Case No 1200 of 1995(unreported) (HC). Courts often take the opportunity to issue guidelines in such cases: see for instance Rep v. Munthali Confirmation Case No 647 of 1999 (unreported) (HC). 42 Rep v. Kayange Confirmation Case No 458 of 2003(unreported) (HC). 43 Rep v. Kadzani  14 MLR 431 (HC). See also Rep v. Khuluma Confirmation Case No 170 of 1995 (unreported) (HC). 44 Section 11(c). 45 Rep v. Moffat Confirmation Case No 734 of 1999 (unreported) (HC). See also Rep v. Isaaki Confirmation Case No 1410 of 2005 (unreported) (HC) 2. 46 Rep v. Namasita Confirmation Case No 309 of 2000 (unreported) (HC). 47 See, for instance, Rep v. Bamusi Confirmation Case No 261 of 2011 (unreported) (HC), reducing the sentence by a year if the accused is still in custody although the detention of the accused was in breach of section 15(3) at the time of review. See also Rep v. Mutawo Confirmation Case No 237 of 1999 (unreported) (HC); Rep v. Nalumo Confirmation Case No 489 of 2000 (unreported) (HC) where the wrong prisoner was before the court during the proceedings and the prison warder could not explain the whereabouts of the accused. See also Rep v. Mutawo Confirmation Case No 237 of 1999 (unreported) (HC). 48 Rep v. Njoloma [1973–1975] 7 ALR Mal 242 (HC). The accused was still in custody at the time of review serving another sentence. 49 See also cl. 51(3)(b)(i) of the 2003 Prisons Bill which states that a sentence is complete when a prisoner is released due to a lack of confirmation of the sentence by the High Court under section 15 of the CPEC. 50 See also section 129 of the CPEC. The Constitution does not expressly reiterate this guarantee; section 42(2)(f)(viii) only refers to prosecution. Cf article 14(7) of the International Covenant on Civil and Political Rights, GA Res 217A (III), UN Doc A/6316 (1966) and article 4(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol Nos 11 and 14 (1950) ETS 5. 51 Rep v. Bayani Confirmation Case No? of 2000 (unreported) (HC) (case number incomplete on original judgment, copy on file with author); Rep v. Nhlema Confirmation Case No 502 of 1994 (unreported) (HC); Rep v. Isaaki Confirmation Case No 1410 of 2005 (unreported) (HC) 2. 52 Rep v. Nambazo (unreported) (HC); Rep v. Ndelemani Confirmation Case No 149 of 2000 (unreported) (HC); Rep v. Isaaki Confirmation Case No 1410 of 2005 (unreported) (HC) 2. 53 Rep v. Mawaya Confirmation Case No 794 of 2000 (unreported) (HC). 54 Rep v. Msodoka [1966–68] 4 ALR Mal 442 (HC). Cf Rep v. Lyson Confirmation Case No 298 of 2000 (unreported) (HC) where the sentence was increased 16 months after its initial imposition, without any consideration of how this would impact the offender. 55 Rep v. Magombo Confirmation Case No 264 of 2011 (unreported) (HC). 56 The court arrived at this period on the specious basis that remission under section 107(1) of the Prisons Act is mandatory. 57 Rep v. Magombo Confirmation Case No 264 of 2011 (unreported) (HC) 3–4. See also Rep v. Moffat Confirmation Case No 123 of 1998 (unreported) (HC), holding that it is unjust to alter a sentence after delayed review hence confirming fines imposed for breaking into a building. 58 The court refrained from enhancing the sentence on review not because the review period had elapsed but because the unconfirmed sentence had almost expired. 59 See Weeks v. United Kingdom  10 EHRR 293, holding that early release is a form of liberty and its deprivation must conform to human rights standards. 60 Rep v. Kufandiko Confirmation Case No 126 of 2009 (unreported) (HC). The sentence had originally been imposed by a principal resident magistrate and thus should have been reviewed within 2 years. 61 In hindsight, it may be better to let some unconfirmed sentences lapse than to lodge an appeal in light of delays in the process and the possibility of the sentence being enhanced! © The Author(s) 2018. Published by Oxford University Press. All rights reserved. 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Statute Law Review – Oxford University Press
Published: Jun 6, 2018
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