Authored By: Felista Ashel Muopana
University of London
Abstract
Prison congestion is one of the most pressing legal and human rights issues affecting criminal justice in Malawi. With prisons holding nearly three times their intended capacity, issues such as pre-trial detentions, delayed trials, and inadequate infrastructure exacerbate inhumane living conditions.[1] Overcrowded prisons are not only detrimental to the dignity of inmates but also pose serious challenges to public health, rehabilitation, and the administration of justice.
In examining the legal framework governing Malawi’s prison system, this article will therefore analyze key case law, particularly the landmark Gable Masangano v Attorney General case, and highlight gaps in its implementation. Through critical evaluation and recent developments, it suggests policy reforms and alternative sentencing as viable solutions. The piece concludes that decongesting prisons is not only a matter of legal compliance but also a moral obligation.
Introduction
The issue of prison congestion has become a persistent crisis in Malawi, reflecting deep-rooted problems in the criminal justice system and raising serious constitutional concerns.[2] The phenomenon of overcrowded prisons the dignity of inmates, contravenes international human rights standards and undermines the constitutional mandate of the state to ensure humane treatment of all persons, including those incarcerated.[3]
One high-profile example of this crisis occurred in 2022, when a cholera outbreak swept through Maula Prison, leading to the deaths of several inmates and raising public outcry over overcrowded and unsanitary conditions.[4]
A more judicially significant response, however, was seen in the landmark case of Gable Masangano v Attorney General-a constitutional case that transformed the legal discourse on prison conditions in Malawi.[5] Through Constitutional analysis and referencing regional and international human rights instruments, the article argues that prison congestion is a violation of fundamental rights and that urgent reforms are required.
Understanding Prison Congestion in Malawi
Malawi’s prison system is severely overcrowded, with many prisons holding more than double their intended capacity. According to the Malawi Prison Service, as of 2023, the nation’s prison population stood at over 15,000, despite facilities built to accommodate only 6,000 inmates.[6] This congestion results in dire living conditions, with limited access to food, healthcare, sanitation, and legal aid.
One major cause of this congestion is the high number of pre-trial detainees, who constitute a significant portion of the prison population. Many are held for extended periods due to systematic delays in the justice process, lack of legal representation, and administrative inefficiencies. According to the 2023 Malawi Human Rights Commission Report, more than 50% of Malawi’s inmates were on remand waiting trial, some for periods exceeding the constitutional limits.[7]
Furthermore, the use of custodial sentences for minor offenses and the limited use of alternatives such as bail or community service escalate the problem.
This demonstrates a systematic breakdown in the administration of justice, infringing on fundamental human rights guaranteed under both domestic and international law.
Research Methodology
This article applies a doctrinal legal research methodology, drawing on primary legal sources, including the Constitution of Malawi, statutes, and case law. Particular focus is placed on Gable Masangano v Attorney General, supported by secondary sources such as journal articles, NGO reports, and international legal instruments and evaluative.
Legal Framework Governing Malawi’s Prisons
Malawi’s Constitution provides fundamental protections relevant to prison conditions. Section 42(1)(b) ensures that every person arrested or detained has the right to be held under humane conditions.[8] Section 42(2)(b) further protects the rights of convicted prisoners, emphasizing humane treatment and rehabilitation.[9]
The Prisons Act (Cap 9:02), while outlining administrative procedures, has been criticized as outdated and misaligned with international standards.[10] Additionally, the Criminal Procedure and Evidence Code (Cap 8:01) regulates pre-trial detention and bail, often misapplied due to lack of legal representation and resources.[11]
Internationally, Malawi is a signatory to numerous international treaties including the International Covenant on Civil and Political Rights (ICCPR), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the African Charter on Human and Peoples’ Rights (ACHPR). These instruments emphasize the human treatment of prisoners and require state parties to ensure that detention conditions comply with human dignity by prohibiting cruel, inhuman, or degrading treatment.
The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules) outline the minimum acceptable conditions for prisoners, including adequate space, ventilation, nutrition, and access to health care.
Despite Malawi being a state party to these numerous treaties, in Gable Masangano v Attorney General, a more critical issue considered by the court was the systemic overcrowding and poor ventilation in Malawi’s prison.
Judicial Interpretation and Landmark Case: Gable Masangano v Attorney General
In the landmark case of Gable Masangano v Attorney General & Others, the High Court of Malawi made significant pronouncements on the constitutional rights of prisoners, particularly regarding prison conditions, overcrowding, and state accountability.[12]This case was brought as a judicial review under the then Miscellaneous Application No. 132 of 2006 and later certified as a constitutional matter in Constitutional Case No. 15 of 2007.[13]
Gable Masangano, a prisoner himself, brought the case in the public interest on behalf of all prisoners in Malawi.[14] He argued that the deplorable conditions in Malawian prisons—characterized by overcrowding, inadequate food, poor sanitation, and lack of medical care—amounted to a violation of constitutional rights, including the right to dignity, protection from inhuman and degrading treatment, and the right to health.[15]
The case was certified by the Acting Chief Justice H.M. Mtegha under section 3(2) of the Courts (Amendment) Act, 2004, which requires that any matter substantially concerning the interpretation or application of the Constitution must be heard by a panel of not less than three judges.[16] Initially, the panel comprised Justice Nyirenda, Justice Singini, and Justice Chinangwa. However, following the appointment of Justices Nyirenda and Singini to the Supreme Court, the panel was reconstituted to include Justice R.R. Mzikamanda, Justice R.R. Chinangwa, and Justice E.J. Chombo.[17]
At the heart of the case was the question of whether the Government of Malawi had failed in its constitutional obligation to ensure humane conditions of detention and whether prisoners retain their fundamental rights even while in custody.[18] The court found that although prisoners lose some rights upon incarceration, they retain all other fundamental human rights guaranteed by the Constitution, except those necessarily limited by the fact of lawful imprisonment.[19]
The Court emphasized that overcrowding in prisons violates Section 19(3) and Section 42(1)(b) of the Malawian Constitution, which respectively protect individuals from cruel, inhuman, and degrading treatment, and guarantee the right of detained persons to conditions consistent with human dignity.[20]
Evidence presented showed that cells designed for 80 inmates housed up to 120, with the national capacity of 4,500 inmates being severely exceeded by an actual population of over 9,000. The 2004 Inspectorate Report highlighted the direct consequences of this congestion, including the spread of diseases such as tuberculosis and HIV, unbearable sleeping conditions, and 259 recorded deaths in custody within 18 months.
Drawing from international and regional jurisprudence, including decisions such as McCann v Queen (1976),[21] Conjwayo v Minister of Justice of Zimbabwe (1992),[22] Dennis Lobban v Jamaica (2004),[23] and Mothobi v Director of Prisons (1996),[24] The Court concluded that such conditions amount to inhuman and degrading treatment, in violation of Section 19 of the Constitution of the Republic of Malawi, which guarantees the right to dignity and protection from torture or cruel, inhuman, and degrading treatment or punishment.[25]
Furthermore, the Court acknowledged that while the Respondents bear responsibility for ensuring compliance with prison standards, the issue of overcrowding stems from broader systemic issues, including rising crime rates and limited sentencing alternatives. It therefore urged a multi-faceted approach, suggesting the development of alternative sentencing mechanisms and enhanced investment in prison infrastructure as part of the solution.
This judicial interpretation not only reaffirmed the binding nature of statutory prison regulations but also emphasized the constitutional obligation of the state to uphold human dignity even for incarcerated persons. It sets a strong precedent for interpreting prison conditions through a constitutional and human rights lens.
In its judgment, the court declared that the Government of Malawi had failed to take reasonable measures to prevent prison overcrowding and to improve the conditions of detention in accordance with constitutional and international human rights standards.[26] It ordered the State, through the Malawi Prison Service and other relevant agencies, to take immediate remedial action, including the construction of new facilities, renovation of existing ones, and adoption of non-custodial sentencing alternatives to reduce the number of inmates.[27]
Importantly, the court held that lack of resources could not be used as an excuse for continued violations of prisoners’ rights, stressing that the obligation to respect human dignity is non-derogable.[28] This principle reflects Malawi’s commitment to its own Constitution and international instruments such as the International Covenant on Civil and Political Rights (ICCPR) and the United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules).[29]
“This state is under a constitutional duty to ensure that all persons, including prisoners, enjoy the rights and freedoms enshrined in the constitution without discrimination.”
The Masangano decision remains significant in Malawi’s constitutional jurisprudence and continues to influence policy discussions on prison reform, human rights, and access to justice for marginalized groups.[30]
In addition to the point above, it shifted the interpretation of constitutional protections from being merely aspirational to binding obligations. The court directed the government to take immediate remedial steps, thereby affirming the judiciary’s role in safeguarding prisoner rights.
Critical Analysis in Challenges in Implementation
Despite the ruling in Masangano, implementation of the judgment has been slow.
The reasons being, firstly, a pre-trial detention; approximately 45% of Malawi’s prison population comprises remandees. Courts often deny bail due to lack of sureties, while some magistrates exercise discretion conservatively, fearing recidivism or public backlash.
Secondly, slow judicial process; the judiciary suffers from underfunding, lack of personnel, and logistical limitations. Many cases are adjourned repeatedly due to absent witnesses or incomplete investigations.
Thirdly, legislative gaps; the Prisons Act does not align with the Nelson Mandela Rules (UN Standard Minimum Rules for the Treatment of Prisoners). Malawi also lacks a functioning parole system, and community-based sentencing is underutilized.
Lastly, infrastructural deficits; structural reforms have been hampered by limited funding, outdated infrastructure (most prisons were constructed in the colonial era and have not seen significant upgrades), and lack of political will. As a result, cells are overcrowded, poorly ventilated, and lack adequate sanitation facilities. While the judiciary has played a proactive role, other arms of government have failed to translate court orders into policy change and infrastructural improvements.
Civil Society Organisations have continued to report cases of severe overcrowding, sometimes reaching 400% above capacity. The failure to construct new prisons or expand facilities, coupled with a rise in petty offences and long remand periods, continues to worsen the crisis.
Recent Developments and Reforms
In recent years, several initiatives have been implemented in Malawi in an attempt to mitigate the persistent problem of prison congestion. However, their effectiveness varies significantly, raising questions about long-term sustainability and systemic reform.
Presidential Pardons, for instance, led to the release of hundreds of inmates in 2021 and 2022. While these acts of clemency provide temporary relief to overcrowded facilities, they fail to address the root causes of congestion, such as pre-trial detention and slow judicial processes. Moreover, reliance on presidential discretion risks undermining the principle of equality before the law, as pardon may be inconsistently applied and lack transparency.[31]
The Paralegal Advisory Service Institute (PASI) plays a more structural role by providing legal aid to prisoners, facilitating bail applications, and speeding up case processing. This approach contributes to enhancing access to justice, particularly for indigent and unrepresented detainees. Nevertheless, PASI reach remains limited due to funding constraints and dependency on donor support, raising concern about its ability to effect widespread systemic change.[32]
Legislative Reforms have also emerged, most notably, the 2023 parliamentary review of the Prisons Act. The proposed reforms aim to align Malawi’s legal framework with international human rights standards, including provisions on humane treatment, rehabilitation. And alternatives to incarceration. However, such reforms are often met with resistance and delay, especially when they challenge entrenched institutional practices or require significant budgetary allocations.[33]
Finally, judiciary-led decongestion programs, such as mobile courts and special camp hearings, have made notable progress in reducing case backlogs. These initiatives enable faster processing of minor cases and offer an alternative to long pre-trial detentions. Yet, without comprehensive investment in the judiciary’s infrastructure and personnel, these interventions risk becoming ad hoc solutions rather than sustainable reforms.[34]
Efforts and Recommendations for Reform
Addressing the chronic issue of prison congestion in Malawi requires a coordinated, multi-stakeholder approach grounded in legal reform, institutional capacity-building, and human rights compliance. Recognizing this, several bodies including the Malawi Human Rights Commission (MHRC), the Malawi Law Society (MLS), and various international donors and development partners have issued urgent calls for reform, focusing on both legislative and structural interventions.
- Revision of the Prisons Act
One of the most critical recommendations is the urgent amendment of the Prisons Act, a colonial-era piece of legislation that has long been criticized for being outdated and inconsistent with international human rights standards. Stakeholders urge that the Act be revised to reflect the principles enshrined in the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).[35] These rules emphasize the inherent dignity of all persons deprived of liberty, humane conditions of detention, access to healthcare, and rehabilitation over punishment. Aligning Malawi’s legal framework with such international norms is essential for creating a just and modern correctional system.
- Strengthening Legal Aid Services
A significant contributor to prison congestion in Malawi is the high number of pre-trial detainees, many of whom are indigent and lack access to legal representation.[36] It is therefore imperative that the Legal Aid Bureau and paralegal organisations such as PASI be provided with adequate government funding and logistical support.[37] By increasing the availability of legal assistance, particularly in rural and underserved areas, the system can ensure that cases are resolved more swiftly and that individuals are not unjustly held for prolonged periods due to lack of representation.
- Introduction of Alternative Sentencing Mechanisms
Traditional custodial sentences should be reserved for serious offences. For non-violent and petty offences, stakeholders recommend the broader adoption of non-custodial sentences, such as community service, probation, and parole.[38] These alternatives not only reduce the burden on prison infrastructure but also promote offender rehabilitation and reintegration into society. The adoption of such mechanisms would also be consistent with restorative justice approaches, which focus on reconciliation and accountability rather than purely punitive measures.
- Judicial Training and Capacity-Building
There is also a need to strengthen the capacity of judicial officers, particularly magistrates and judges, through regular training on human rights-based approaches to bail and sentencing.[39]Judicial discretion plays a pivotal role in determining whether an accused is granted bail or remanded in custody. Training initiatives can therefore help ensure consistency, fairness, and proportionality in judicial decision-making, ultimately contributing to a reduction in pre-trial detention.
- Investment in Prison Infrastructure
Finally, the government must make substantial investments in prison infrastructure, including the construction of new facilities and the rehabilitation of existing ones to ensure humane living conditions. Most of Malawi’s prisons were built decades ago and are significantly overcrowded, lacking necessities such as clean water, adequate ventilation, and medical care.[40] Improving prison conditions not only enhances the dignity of inmates but also helps reduce the spread of communicable diseases and supports rehabilitation efforts.
Conclusion
Prison congestion in Malawi is not merely a symptom of poor infrastructure but a reflection of deeper systemic failures in the legal and criminal justice system. The Gable Masangano case affirmed that constitutional rights are enforceable and not just aspirational. Addressing this crisis requires a multipronged approach involving legal reform, infrastructure investment, and a shift in judicial and prosecutorial attitudes. Upholding the rights of prisoners is not a luxury—it is a legal and moral imperative.
Bibliography
Cases
Conjwayo v Minister of Justice, Legal and Parliamentary Affairs [1992] (Const) 604 (zs)
Dennis Lobban v Jamaica, Communication No 799/1998, UNHRC, UN Doc CCPR/C/81/D/799/1998 (3 November 2004)
Gable Masangano v Attorney General and Others [2009] MWHC 15 (Constitutional case No. 15 of 2007)
McCann v The Queen [1976] AC 182 (PC)
Mothobi v Director of Prisons [1996] 2 LRC 379 (Lesotho HC)
Legislation
Constitution of the Republic of Malawi 1994
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987)
Courts (Amendment) Act 2004
Criminal Procedure and Evidence Code (Cap 8:01, Laws of Malawi)
International Covenant on Civil and Political Rights (ICCPR) (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171
Prisons Act (Cap 9:02, Laws of Malawi)
Books and Reports
Judiciary of Malawi, Report on Mobile Courts and Camp Hearings: 2021-2023 (Judiciary of Malawi 2023)
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Malawi Judiciary, Strategic Plan 2020-2025 (Government of Malawi 2020)
Malawi Prison Service, Annual Report 2023 (Government of Malawi 2023)
Paralegal Advisory Service Institute (PASI), Annual Report 2022 (PASI 2022)
Paralegal Advisory Service Institute (PASI), Annual Report 2022 (PASI 2023)
Penal Reform International, Global Prison Trends 2022 (2022)
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United Nations Office on Drugs and Crime (UNODC), The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) (UNODC 2015)
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United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules), UNGA Res 70/175 (17 December 2015)
Online Sources
Malawi News Agency, ‘President Pardons 200 Prisoners to Decongest Prisons’ (Malawi Government, 26 December 2022) <https://www.manaonline.gov.mw> accessed 22 July 2025
Nyasa Times, ‘Cholera Outbreak Hits Maula Prison: Inmates Die as Overcrowding Blamed’ (23 October 2022) <https://www.nyasatimes.com/cholera-outbreak-hits-maula-prison-inmates-die-as-overcrowding-blamed/> accessed 22 July 2025
Parliament of Malawi, ‘Review of the Prisons Act Underway’ (2023) <https://www.parliament.gov.mw> accessed 22 July 2025
[1] Malawi Human Rights Commission, ‘Annual Report on the Conditions of Prisons in Malawi’ (2023)
[2] Penal Reform International, Global Prison Trends 2022 (2022) 12
[3] Constitution of Malawi 1994, s19(3); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June)
[4] Nyasa Times, ‘Cholera Outbreak Hits Maula Prison: Inmates Die as Overcrowding Blamed (23 October 2022)
https://www.nyasatimes.com/cholera-outbreak-hits-maula-prison-inmates-die-as-overcrowding-blamed/ accessed 22 July 2025
[5] Gable Masangano v Attorney General and Others Constitutional Case No 15 of 2007 (High Court of Malawi)
[6] Malawi Prison Service, Annual Report 2023 (Government of Malawi 2023
[7] Malawi Human Rights Commission, ‘Annual Report on the Conditions of Prisons in Malawi’ (2023)
[8] Constitution of the Republic of Malawi 1994, s42(1)(b)
[9] Ibid s42(2)(b)
[10] Prisons Act (Cap 9:02, Laws of Malawi) ss 7-9, 13-14
[11] Criminal Procedure and Evidence Code (Cap 8:01, Laws of Malawi) ss 42, 118-126
[12] Gable Masangano v Attorney General and Others [2009] MWHC 15 (Constitutional case No. 15 of 2007)
[13] Ibid.
[14] Ibid.
[15] Constitution of the Republic of Malawi 1994, ss 19, 42; see also Masangano (n 1)
[16] Courts (Amendment) Act 2004, s 3(2).
[17] Masangano (n 1)
[18] Ibid.
[19] Constitution of Malawi 1994, s44 (1); Masangano (n 1)
[20] Constitution of Malawi 1994, ss 19 (3), 42(1)(b)
[21]McCann v The Queen [1976] AC 182 (PC)
[22] Conjwayo v Minister of Justice, Legal and Parliamentary Affairs [1992] (Const) 604 (zs)
[23] Dennis Lobban v Jamaica, Communication No 799/1998, UNHRC, UN Doc CCPR/C/81/D/799/1998 (3 November 2004)
[24] Mothobi v Director of Prisons [1996] 2 LRC 379 (Lesotho HC)
[25] Constitution of the Republic of Malawi 1994, s19;
[26] Gable Masangano v Attorney General (n 1)
[27] Ibid.
[28] Ibid.
[29] International Covenant on Civil and Political Rights (ICCPR) (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171; United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules), UNGA Res 70/175 (17 December 2015)
[30] Masangano (n 1)
[31] Malawi News Agency, ‘President Pardons 200 Prisoners to Decongest Prisons’ (Malawi Government, 26 December 2022)
https://www.manaonline.gov.mw accessed 22 July 2025
[32] Paralegal Advisory Service Institute (PASI), Annual Report 2022 (PASI 2023)
[33] Parliament of Malawi, ‘Review of the Prisons Act Underway’ (2023)
https://www.parliament.gov.mw accessed 22 July 2025
[34] Judiciary of Malawi, Report on Mobile Courts and Camp Hearings: 2021-2023 (Judiciary of Malawi 2023) 8.
[35] United Nations on Drugs and Crime (UNODC), The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) (UNODC 2015)
[36] Southern Africa Litigation, Pre-Trial Detention in Malawi: Understanding Case Flow Management and Conditions of Detention (SALC 2020)
https://www.southernafricalitigationcentre.org accessed 22 July 2025
[37] Paralegal Advisory Service Institute (PASI), Annual Report 2022 (PASI 2022)
[38]Malawi Commission, Report on the Review of the Penal Code and the Criminal Procedure and Evidence Code (Malawi Government 2021)
[39] Malawi Judiciary, Strategic Plan 2020-2025 (Government of Malawi 2020)
[40] Malawi Human Rights Commission (MHRC), Monitoring Report on the Conditions and Treatment of Prisoners in Malawi (MHRC 2022)
