Malawi judge Mwale provides expertise to UN legal toolkit on mothers facing charges

Malawi’s High Court judge, Fiona Mwale was amongst high profile judicial officers and other stakeholders at a meeting that took place at the Thailand Institute of Justice in Bangkok, organized by the United Nations Office on Drugs and Crime (UNODC) early this month that reviewed and revised a toolkit that provides gender responsive alternatives to imprisoning mothers who serve prison sentences with their young children.

Judge Fiona Mwale is national training coordinator for Women Judges Association of Malawi
Justice Mwale (far right) together with the other delegates in Thailand

This is a common phenomenon all over the world and currently there are 14 women serving prison sentences with young children, some of whom are still breastfeeding, all over Malawi’s prisons.

Justice Mwale said these handbooks use practical examples to guide judicial officers, prosecutors, defence lawyers, paralegals and other criminal justice stakeholders such as probation officers, civil society organizations with guidance on what to do in cases where women are accused of crimes and it provides alternatives for imprisonment.

“So if it is a case involving a woman who has child care responsibilities, once she is found guilty, the judge/magistrate has to inquire into her circumstances and get as much information about her before sentencing her.

“The sentence, should — depending on the seriousness of the offence — not be imprisonment (i.e. non custodial). So  alternative measures include fines, community service, diversion and in some jurisdictions house arrest,” said Mwale.

She said many countries around the world face prison overcrowding and reducing prison populations is not only cost effective but also public health friendly since prisons are incubators for disease.”

“The handbook will also be useful for policy makers when considering how best to implement non-custodial measures, reduce imprisonment, and enable the criminal justice system to be more gender-sensitive and gender-responsive.

“Additionally, it will further provide a basis for public outreach and awareness raising to facilitate a better understanding of non-custodial measures and gender-responsive approaches in responding to women in conflict with the law,” said Mwale.

Justice Mwale is a member of the Women Judges Association of Malawi (WOJAM) as a national training coordinator — which is affiliated with International Association of Women Judges (IAWJ).

“Being the WOJAM national training coordinator and therefore possessing experience of training judges and developing training handbooks, and as a judge who actually has had experience dealing with cases involving women with children in custody, I was one the 50 judges from all over the world whose CVs were reviewed by UNODC which developed the handbook.

“UNODC only wanted one representative from IAWJ but because of such a high caliber of the CVs, UNODC opted to select two IAWJ members instead of one, myself from and a member from the Philippines.

“The UNODC staff member overseeing this effort noted that it was very difficult to select members because so many members had such interesting backgrounds.  I was one of the experts who has experience as a member of WOJAM in running camp courts where we consider alternative sentences who have been convicted by the lower courts because they have children in prison.”

She said she was able to provide her inputs on the handbook and make recommendations for additions.

“I was able to suggest that some Malawian cases be incorporated because we have some good cases in Malawi that can be used to illustrate gender responsiveness in sentencing female offenders.

“Where the offense is not serious review the case and if we find the sentence was excessive in view of the evidence, we also take into account the gender considerations and release the woman or order an alternative sentence that does not involve custody or imprisonment.

“Of course, this is a judicial function, so not every woman who has children in prison qualifies for release. The case is reviewed with regard to all relevant factors and considering the gender implications. Only after a careful scrutiny is the decision made.

“Since the handbook is supposed to be used all over the world, I was able to factor in African viewpoints and to suggest ways of getting around resource constraints to ensure that justice is done.

“At the end of the meeting we had a revised toolkit that includes relevant examples and experiences of effective non-custodial measures that address the specific needs of women to which I contributed.”

The IAWJ is a non-profit, non-governmental organization whose members represent all levels of the judiciary worldwide and share a commitment to equal justice for women and the rule of law.

“Created in 1991, the IAWJ has grown to a membership of over 6,000 in 100 countries in which it advances human rights and equal justice for women and girls.”

“It does this by empowering women judges to  overcome gender biases in the law and in their application,” she said.”

WOJAM, the Malawi Chapter of IAWJ, was registered in 2011 and its membership is also open to male judicial officers.  The Association’s aim is to bring justice to the people.

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