Freedom, but No Justice, for Two Innocent Men in Malawi

Last Thursday, brothers Jamu Banda and John Nthara were released from Zomba Central Prison in Malawi, after serving 21 years in prison for a crime they did not commit.

Jamu and John were convicted and sentenced to death without legal representation.  Their lawyer abandoned them the day before their trial started.  They had no means of contacting witnesses in their remote village who would have testified that they were innocent of any wrongdoing. The prosecution’s case remained unchallenged, and the court had no choice but to impose the death penalty, which was the mandatory penalty for murder at the time of their trial.  After they were sent to prison, the system simply forgot about them.

Twenty years after their arrest, Northwestern law students Jessica Dwinell and Hannah Jurowicz interviewed the two men and became convinced of their innocence.  Under my supervision, they launched an investigation with the help of the Paralegal Advisory Services Institute and the Director of Public Prosecutions.  They interviewed seven witnesses, all of whom related consistent accounts of the events that led to the brothers’ arrest.  Here’s what they said.

In December 1994, John and Jamu were farmers in a small village in central Malawi.  Both were married with children; neither had ever been in trouble with the law.  One day, as they were out in the fields, villagers told them that a stranger armed with a machete had broken into one of their homes.  It was apparent to everyone that he was deranged, whether as a result of psychosis or drugs, no one knows.  He was impossible to reason with, and impossible to approach because he threatened to strike anyone who came near.  As the community called for help from village elders, he grabbed a burning piece of wood from a cooking fire and ran into the latrine, which had a thatched roof.  It caught fire.  John, Jamu, and their brother Michael ran into the latrine to save him, but it was too late:  he had already suffered severe burns all over his body.

John, Jamu, and Michael were all taken into custody shortly after the incident.  When the trespasser died 5 days later, all three were charged with murder.  The villagers were adamant that the men were innocent, but they never had a chance to testify at trial.

The brothers suffered greatly during their long incarceration.  Michael, the youngest brother, tested positive for HIV in 2007, and later contracted malaria and tuberculosis.  By early 2014, he had open sores covering his head and anus, which resulted in severe pain while defecating. He was frail and weak, weighing less than 41 kilos.  In April 2014, after the prosecution agreed that he was likely innocent, he died in prison.  By the time Jamu and John were released, they were both 66 years old.

Although Jamu and John are now free, this is not a happy story.  Their wrongful conviction was the consequence of a system that failed.  Without a lawyer to defend them, the outcome of their trial was preordained.  While in theory they were entitled to an appeal under Malawi’s Constitution, they had no means of formulating cogent legal arguments and presenting them to the courts.  The state failed to appoint a lawyer to represent them, and all three brothers were illiterate.

In March 2015, the Malawi High Courts began to rehear the cases of all prisoners given mandatory death sentences prior to the 2007 judgment in Kafantayeni and Others v. Attorney General (discussed in my previous blog on April 24).  On March 19, the court heard prosecution and defense arguments in John and Jamu’s case, aided by a pleading drafted by a Cornell law student named Jordan Manalastas.  Although both sides agreed the two men should be released, there was one problem:  their trial record could not be located.

Missing case files are an enormous problem in Malawi. Of the 175 prisoners entitled to be resentenced pursuant to the Kafantayeni judgment, the courts have lost the files of more than half.  The courts have waffled over the consequences that should follow from this sorry state of affairs, but the emerging consensus is that in such cases, prisoners cannot be penalized for the state’s ineptitude.  One recent case rightly concludes that where the missing portion of the file is substantial, material and consequential, the prisoner’s conviction must be set aside.

After receiving supplemental briefing on the issue of missing case files, the High Court issued its judgment on May 7, and ordered the immediate release of both men.

John and Jamu received a hero’s welcome in their village when they arrived after their long journey from Zomba.  But their lives, and those of their families, were destroyed by their wrongful convictions and long incarceration.  They can never recover those lost years.

John and Jamu’s case brings home the need for abolition of the death penalty where the state cannot guarantee a fair trial in accordance with international law.  A moratorium does not go far enough.  Malawi has not executed anyone since 1994, but it has continued to sentence individuals to death—some of whom, like John and Jamu, are innocent of the crimes for which they were convicted.  And Malawi is not unique in this respect:  in South Sudan, most of the people currently on death row had no legal representation whatsoever at the time of their trials.

Until the death penalty is abolished, states must provide a means for post-conviction review of the convictions and sentences of those sentenced to death.  Without it, there is no question that other innocent men and women will risk execution for crimes they did not commit.