LAWYERS defending Dr Hastings Kamuzu Banda, former president of Malawi, have raised serious doubts over whether he or other defendants charged with the 1983 murders of four politicians will ever receive a fair trial.
Memery Crystal partners Bernard Clarke and Harvey Rands, who were instructed to act for Banda and two of the five other defendants following their arrest in January, say there have been “fundamental breaches” in the right to a fair trial.
In a report to representatives of the Scottish Faculty of Advocates, the Law Society and the Bar Council – which sent a joint delegation to investigate allegations of human rights breaches in Malawi in 1992 – the firm says some aspects of the proceedings “have given rise to considerable concern on our part in relation to human rights in Malawi”.
Clarke and Rands claim the 13-member Commission of Inquiry, appointed by current president Bakili Maluzi to investigate the alleged murders, “did not conduct itself in a manner that was forensically or procedurally rigorous”.
The defendants were later arrested and held in custody awaiting trial on 24 April, but proceedings were delayed and the trial is scheduled to start in the High Court this week. Murder convictions in the country carry a mandatory death sentence.
Banda's legal team has raised a number of concerns over the conduct of the case. These include the denial of bail despite a judge's order, the refusal of the prosecution to provide details of evidence, and the intention of the court to proceed with the trial in the absence, due to illness, of Banda, who is in his nineties.
Clarke says while much of Malawi's legal system operates on English jurisprudence, the lawyers accept they will have to abide by local laws and codes.
“But what we want is to see fairness in procedure,” he says. “We want procedures implemented so that the overall procedure is fair and not an abusive process.”
“We're hoping that we're going to battle through and get a fair hearing.
“We're sure that if we do our three defendants will be acquitted. We can't see any evidence against them,” he says.