JUDICIAL RECORD KEEPING IN SUB-SAHARAN AFRICA

Poor public administration continues to plague sub-Saharan states since the independence era of the mid-20th century.Footnote ¹⁵ This is partially explained by the steady collapse of record keeping and archives management systems in the region, attributable, in part, to the colonial administrators who took responsibility for record keeping during their rule but provided little training to local people before ceding control.Footnote ¹⁶ Peter Mazikana attributes current record keeping and archives management problems to: “malfunctioning or outdated registry systems; antique or inappropriate file classification; no training for staff; problems of missing files; inadequate records centre facilities; non-existent record appraisal and transfers; backlogs in archives processing; poor physical wellbeing of collections and equipment breakdowns”.Footnote ¹⁷

As it pertains to the judiciary, the inability of sub-Saharan states to record trial proceedings properly or securely store the records for retrieval at a later date, is well documented. In her recent examination of the region, Catherine Namakula notes that Kenya, Nigeria, South Africa and Zambia struggle to maintain a reliable record keeping system in the context of budgetary constraints that force them to operate a largely paper-based system (sometimes constituting only of handwritten records) that are exposed to risks such as fire and theft.Footnote ¹⁸ These systems are difficult to manage, but also result in significant losses of records. Kenya's chief justice recently reported over 500 missing files in one year alone.Footnote ¹⁹ In Nigeria, as in other sub-Saharan states, the management of paper-based files by non-professional record managers in combination with poor storage facilities has resulted in reports of records being “dumped” on the floor.Footnote ²⁰ The paper-based system in Botswana has seen court records lost because personnel with access to these files are not compelled by the court to return them within a prescribed period, or records are accessed and removed by unauthorized persons and never returned.Footnote ²¹ Even for those files that are not lost, improper filing remains a cause of delays, while others are “inadequate” for their intended purpose due to the handwritten records being illegible or because parts of the record are missing.Footnote ²²

As the court record is the comprehensive account of trial proceedings, these shortcomings place those convicted of crimes at serious risk of a miscarriage of justice. The contents of a court file in a criminal case will differ depending on the jurisdiction, although the file will usually contain a transcript of proceedings (ideally verbatim), witness evidence and exhibits, judicial instructions and judgment, as well as correspondence between the parties such as affidavits of service, and important details such as names of the parties and key dates. A court record is important during a criminal trial,Footnote ²³ but vital at the post-conviction stage, as it is typically required to initiate an appeal or any other post-conviction process, and forms the record on which lawyers must basis their submissions. The ability of the criminal justice system to ensure access to justice and a fair hearing is compromised when the court record is missing or inadequate.

The digitalization of court records is an obvious solution to missing court files, as an electronic version should remain accessible if the hard copy file (or parts thereof) becomes missing. Unfortunately, a lack of internet and communications technology facilities and inconsistent power supplies make the digitalization of court records in the sub-Saharan region difficult.Footnote ²⁴ Nevertheless, despite the structural issues facing the region, some jurisdictions have moved toward the digitalization of court records. According to the Zambian judiciary, as of December 2015, 113,831 court files, representing over 1.9 million individual documents, had been scanned in Lusaka, Kitwe and Ndola, which resulted in “significantly reduced complaints of missing case records” in those jurisdictions.Footnote ²⁵ Similarly, in 2005, Botswana implemented the Court Record Management System (CRMS) to manage case file records at the High Courts and Magistrates’ Courts. A recent study has shown improved records management at the Gaborone Magisterial District with CRMS successfully capturing court records, allowing missing court files to be retrieved from the system, which “resulted in speedy finalization of litigations”.Footnote ²⁶ Advocates of CRMS are now pushing for the necessary legislation and policy reforms to allow the judiciary to share case files with other criminal justice system stakeholders, such as the Department of Public Prosecutions, Police Service and Department of Prisons and Rehabilitation, to benefit from additional efficiencies.Footnote ²⁷

Malawi's criminal justice system is yet to benefit from the digitalization of court records as it continues its wholly paper-based system. The following account of the Kafantayeni Project highlights the inability of the judiciary to archive court files securely upon completion of a trial.

THE ORIGINS OF THE KAFANTAYENI PROJECT

Malawi's criminal law is a legacy of colonial occupation. Britain, the country's former colonial power, enacted the mandatory death penalty for murder, as had been part of English common law at the time. From the time when Malawi's Penal CodeFootnote ²⁸ came into effect in 1930 and long past the country's independence in 1964, the law provided that “[a]ny person convicted of murder shall be sentenced to death”,Footnote ²⁹ thereby removing all judicial discretion in sentencing. Put another way, the judges’ hands were tied.

The principal effect of this provision was that any person convicted of murder would be sentenced to death, irrespective of their level of moral culpability. Take the following two scenarios as an illustration. In the first scenario, after meticulous planning a contracted killer shoots dead a family of three for his own self-enrichment. In the second scenario, an intoxicated man slams a barstool into the ribcage of a belligerent patron who mocked him about his wife sleeping with other men. The assault caused broken ribs, internal bleeding and eventually death. In both scenarios the result is the same: the defendants will be found guilty of murder and sentenced to death, notwithstanding their vastly different levels of moral culpability. The judge has to sentence the man in the bar to death, despite his lack of premeditation, the provocative actions of the deceased, that he was recklessly indifferent to the probability of causing grievous bodily harm (as opposed to having an intention to kill), and his intoxication at the time of the offence.

International anti-death penalty advocates strongly criticized Malawi's uniform application of the death penalty on constitutional grounds, as they had done in other former British colonies that maintained the mandatory death penalty.Footnote ³⁰ They argued that it denied access to justice and the right to a fair trial, both of which are guaranteed under Malawi's Constitution.Footnote ³¹ This criticism resonated with some members of Malawi's legal community who partnered with international advocates to push for law reform in this area.Footnote ³² This desire for discretionary sentencing appears in the trial record of some cases. In 2005, a lawyer's plea to the judge after his client was pronounced guilty of murder is extracted as follows: “[a]lthough the conviction of murder carries a mandatory [death] sentence the convict is a first offender. He has already languished in prison since February 1999. The convict is a very young person aged 24 and can be reformed. It is my prayer to consider his age when passing sentence My Lord.”Footnote ³³ Further, in a case decided in 2002, the judge noted:

Discretion in sentencing was finally achieved in 2007 when the High Court of Malawi, sitting as the Constitutional Court, abolished the mandatory death penalty for murder in the landmark ruling in Kafantayeni and Others v Attorney General (Kafantayeni).Footnote ³⁵ In doing so, the court granted judges unfettered discretion to sentence convicted murderers to a determinate sentence, life imprisonment or death, thereby placing a duty on lawyers to adduce comprehensive mitigating and aggravating evidence to aid judges in making their decision.

Most significant for this article, however, was that the judgment contained a consequential order requiring that the lead plaintiff in the challenge, Francis Kafantayeni, and his five co-plaintiffs, all of whom were mandatorily sentenced to death, be brought before the High Court to receive an individualized sentence in place of the mandatory death penalty that had been in place until that point.Footnote ³⁶ This newly individualized sentence was to take into account the unique circumstances of each offence and the unique circumstances of each offender. Three years later, in 2010, the Malawi Supreme Court of Appeal (Supreme Court) went further and ordered that it was “the duty of the Director of Public Prosecutions to bring before the High Court for re-sentence hearing all prisoners sentenced to death under the mandatory provision of Section 210 of the Penal Code”.Footnote ³⁷

The resentencing project that these seminal judgments put in train was colossal, especially for Malawi's under-resourced justice system. At the time, Malawi's maximum-security prison housed over 192 individualsFootnote ³⁸ sentenced to the mandatory death penalty, with each requiring additional investigation into his or her case because, at the time of trial, neither defence nor prosecuting lawyers were required to adduce comprehensive mitigating or aggravating evidence. Defence lawyers did not provide mitigating evidence beyond that which would provide a complete or partial defence to murder. There was, for example, no reason for a defence lawyer to inform the court of her client's history of childhood abuse or neglect, because the judge could not take it into account at sentencing. Similarly, a prosecutor did not need to provide the court with aggravating factors such as a convict's criminal antecedents or the effect the offence had on the victim's family and the wider community, as it would be superfluous information for a hamstrung judge.

It is worth noting that other jurisdictions have faced major resentencing projects after abolishing the mandatory death penalty. In Uganda, there were over 500 prisoners eligible for resentencing after the successful constitutional challenge in Kigula and Others v Attorney General Footnote ³⁹ abolished that country's mandatory death penalty regime.Footnote ⁴⁰ Missing court files, as in Malawi, were a vexed issue in the Ugandan resentencing process, as locating files and the additional investigation efforts required in the cases caused significant delay for some beneficiaries.Footnote ⁴¹ There follows an account of the meticulous file search undertaken in the Kafantayeni Project, which exposed the serious record keeping and archival management issues facing the criminal justice system.

THE SEARCH FOR COURT FILES

Court files were vital to the resentencing process. Mitigating and aggravating factors could now be taken into account in arriving at a fair, individualized sentence and the evidence for these factors would potentially be found in the relevant court files. At the conclusion of the first instance jury trial for each of the Kafantayeni beneficiaries, a court file typically contained: a trial transcript, being a handwritten verbatim record of the trial's proceedings, including all the witness evidence, the judge's summing up to the jury, the jury's verdict and the judge's conviction and sentence; marked exhibits that usually included a post-mortem report stating the cause of death, a statement given by the convict to police under caution (a caution statement) and statements from police and other prosecution witnesses; the prosecution's summary of the known facts and a précis of the (prosecution) witnesses’ evidence, detailing facts to which each of the prosecution witnesses can attest; and any number of court orders, such as a warrant of commitment. In addition, some of the Kafantayeni beneficiaries appealed their conviction (and sometimes their sentence), meaning that the court file would normally contain the appellant's and prosecution's skeleton appeal submissions as well as the appeal judgment.

Court files, therefore, contain a wealth of information for a resentencing project. Armed with a complete court file, defence and prosecuting lawyers are able to add substance to the mitigating and aggravating factors that arose during the trial, such as the existence or not of elements of provocation or self-defence. Information in the court files might indicate that the person suffered from a mental illness or intellectual disability that was operating in some form at the time of the offence. The files may even contain evidence of significant post-offence behaviour, such as going to the police or in some way assisting with the investigation. Furthermore, they are a helpful means of locating witnesses to the offence and other witnesses for further investigation.

For these reasons, in 2012, in the lead up to the resentencing hearings, a meticulous search was undertaken for the court files of each of the 192 prisoners. With permission from the judiciary,Footnote ⁴² a small teamFootnote ⁴³ of law students, court clerks and paralegals searched the High Court criminal registries in Blantyre, Lilongwe and Mzuzu, the Supreme Court Registry, and the Judicial Archives Room of the National Archives of Malawi in Zomba: every possible location where the court files might be archived. Over several months, the team cross-referenced each criminal file that was located with the names and case numbers of those eligible to be resentenced.Footnote ⁴⁴

A memorandum documented the extensive search for the court files, describing the management of the files in each of the locations searched.Footnote ⁴⁵ In most locations, the archived files were stored in dusty, damp, unventilated rooms, and in most cases rodents and other small animals and insects were clearly present, as they had gnawed at the files and excrement was smeared on the files and their contents. Cockroaches and silverfish were frequently found squashed into the documents contained within. Many had pages missing and often the handwritten documents within were illegible.

At the two largest criminal registries, Blantyre and Lilongwe, archived criminal files were mixed with civil and commercial files in no discernible order, which forced the team to look at every one of the files in these locations. In Blantyre, one of the rooms doubled as a space where lunch was cooked, resulting in a grimy black film covering the files. There are unconfirmed reports that older files were occasionally burned to ignite the charcoal cookers. While, in Lilongwe, files and physical exhibits were crammed into an abandoned toilet cubicle and spilled into the hallway. Only two files were located in Lilongwe, of which only one was complete.Footnote ⁴⁶

The criminal registry of the High Court of Mzuzu and the Judicial Archives Room of the National Archives of Malawi were more organized than the other locations. In Mzuzu, all archived files were stored in one cool dry room, and clearly separated into civil and criminal piles. There was little evidence of rodent or insect infestation and little damage to the files. The team was able to complete its search in a few days and located most of the files from that region. Similarly, the Judicial Archives Room was clean and the filing system was logical and consistent, which greatly facilitated the search.

Overall, the results of the search were underwhelming and confirmation that the judiciary's “files, registers and case records are neither accurate nor secure”.Footnote ⁴⁷ Of the 190 court files that the team expected to find, only 78 complete and 19 incomplete files were located. In the absence of the complete court file, the Kafantayeni Project stakeholders hoped that the shorthand notebooks of the court reporters could be transcribed. However, as noted in the file search memorandum, the shorthand notebooks could not be located, as most court reporters threw out their notebooks once their employment was finished, and those that remained were eventually thrown out after they were damaged by water from a leaking ceiling.

Ultimately, for nearly half of the Kafantayeni beneficiaries, the only useable information came from prison files, which contained a committal warrant stating the prisoner's name, village and tribe, and noted that they had been convicted of murder contrary to section 209 of the Penal Code and sentenced to death. The lack of other, more detailed information posed a real challenge to the resentencing process, as there were no detailed accounts of the offence(s) from which defence and prosecution lawyers could develop case theories and guide their investigation. The lack of information had the potential severely to disadvantage those Kafantayeni beneficiaries who were facing resentencing, for which the outcome may be resentencing to death.

THE KAFANTAYENI SOLUTION

The Supreme Court had already considered the issue of missing court files in murder cases before the Kafantayeni rehearings. In 2012, the court ruled in Andrew Chalera and Others v Republic (Chalera): “[w]here the missing part of the record is substantial, material and consequential, such that proceeding with the appeal would result in injustice, the conviction should be set aside without the full appeal being heard … Whether an order for retrial should be made will depend on the circumstances of the case”.Footnote ⁴⁸ In that case, the court considered the missing summing-up to the jury by the trial judge a “vital component” of the record and, because the appellants had already been imprisoned for more than 15 years, it was considered “inappropriate” in the circumstances to order a retrial.

The Chalera ruling followed a case six years earlier in which the appellant's lower court record, except for the judgment, was entirely missing. In that case the High Court noted: “what is true is that one does not get a clear picture of the whole story. Coupled with the complaints by the appellant it is difficult for this court to protect the conviction against the appellant. It would be very unsafe to do so. The appellant's conviction is therefore quashed”.Footnote ⁴⁹

These two rulings show that, in the context of appeals against conviction, Malawi's High Court and Supreme Court will provide the appellant relief in the circumstances where the missing part(s) of the record could result in a miscarriage of justice for the appellant.

Notwithstanding the principled approach taken by the Supreme Court in Chalera, the High Court was not bound to it in the Kafantayeni resentencing process. The Kafantayeni rehearings were not appeals. Rather, they were unique court-ordered remedies for those sentenced under an unconstitutional sentencing regime. As such, these hearings did not challenge the propriety of the conviction, but proceeded as if the accused had just been convicted at trial and the court was now passing sentence, albeit with a significant time delay between the two phases.Footnote ⁵⁰ The High Court created Guidelines on Sentence Rehearings (the Guidelines)Footnote ⁵¹ that, among other things, stressed that, where possible, cases should be set-down before the original trial judge and that the normal adversarial process should be followed as established by the CPE Code.Footnote ⁵² The Guidelines specifically noted that section 260 of the CPE Code applied, so the court may “receive such evidence as it thinks fit in order to inform itself of the sentence proper to be passed”,Footnote ⁵³ allowing for evidence outside the court record.

The Guidelines laid the groundwork for a resentencing process focused on ensuring, as far as possible, a just outcome for all the Kafantayeni beneficiaries. A notable level of cooperation existed between defence lawyers and prosecutors, particularly in cases with limited or no information available from the court record. Both parties set out to reconstruct the court file as best they could, while maintaining the fundamental tenets of a fair trial. Prosecutors accepted that they would not approach the Kafantayeni beneficiaries for information to reconstruct the court file, as doing so would undermine their right to silence and could result in self-incrimination. Meanwhile defence lawyers understood that, at a minimum, the name of the victim and the location of the offence should be provided to prosecutors, as they would always have that information at the guilt and innocence phase of a trial, and it would ultimately speed up the process for their clients by allowing the prosecution to conduct its investigation in a timely manner.

Resentencing courts were similarly flexible in their approach, most notably in accepting affidavit evidence from witnesses rather than requiring them to give their evidence in court,Footnote ⁵⁴ thereby removing cross-examination from the sentence rehearings. This judicial innovation took into account the logistical impracticalities of bringing witnesses to court, as well as the reliability of evidence from witnesses whose memories had necessarily faded with the passing of time. It would seem the courts sought a general understanding of what transpired at the time of the offence from both sides without getting bogged down in the minutia that might arise from cross-examination, which, in any case, could not be relied upon with great certainty. This reasoning extended to the convicts who were allowed to provide their evidence in affidavit form, and was tacitly accepted by prosecution and defence lawyers. In this context, most of the convicts whose court files were missing volunteered to provide sworn affidavit evidence regarding the facts of the offence as part of their sentencing submissions, although there was no obligation placed on them to do so.

The Chalera judgement further guided the practice in this area. It acted as a form of persuasive precedent for the resentencing courts in those cases where the court files were completely or partially lost. It was especially persuasive given that the Kafantayeni beneficiaries, like the appellant in Chalera, had already served lengthy terms of imprisonment. In line with the Supreme Court's ruling, resentencing courts showed compassion to those whose court records were missing or incomplete through no fault of their own. In a string of judgements, the High Court affirmed, inter alia, that: missing court files would not preclude the prisoner from their court-ordered remedy;Footnote ⁵⁵ any ambiguity that arose from an incomplete record would be resolved in the convict's favour;Footnote ⁵⁶ due weight would be given to the convict's own reasonable account of the facts, with the burden on the prosecution to disprove it;Footnote ⁵⁷ and, ultimately, if the record was missing, the murder could not be considered the worst or the rarest of its kind.Footnote ⁵⁸

The resentencing court's position on dealing with missing court files had a profound impact on the resentencing of the Kafantayeni beneficiaries. By accepting that, in the absence of a clear account of the facts, the convict could not be considered to have committed the worst murder of its kind, a necessary condition for a death sentence in Malawi,Footnote ⁵⁹ the court had in effect prevented itself from resentencing an offender to death. One resentencing judge, Justice Nyirenda, neatly captured this in his ruling in the case of Lackson Dzimbiri: “where the trial record is wholly or partially missing such that there is uncertainty as regards the circumstances of the commission of the offence it would be completely inappropriate to impose a death sentence”.Footnote ⁶⁰

The resentencing court's position in relation to appropriate sentences for the most heinous murders was tested in a case where a convict's entire trial record was missing, but his pre-Kafantayeni appeal judgment was located. In that case the appeal judgment briefly summarized the graphic facts established at the trial. It noted that the prisoner was convicted of killing six women (each of whom was either strangled or stabbed), mutilating their bodies and selling their body parts; in some cases, genitalia, breasts or intestines were removed, in others abdomens were opened and / or eyes were gouged out.Footnote ⁶¹ Had the trial record been located and the full facts been known, it is likely the convict would have been sentenced to death because the circumstances of the offence satisfied the requirements set out in prior case law.Footnote ⁶² However, in the absence of the trial record, the convict was sentenced to life imprisonment.

For at least one of the resentencing judges, life imprisonment was also ruled out as a sentencing option when the court record is missing. In Republic v Patson Mtepa Justice Kamwambe reasoned:

Adding weight to this judge's decision to exclude the imposition of a life sentence in this case were the facts, which were reconstructed from the prison file, interviews with members of the convict's community and a mental health assessment,Footnote ⁶⁴ that showed the victim was killed when the convict and another committed a robbery armed with a gun. After taking into account the mitigating factors, such as his youthfulness at the time of the offence, the convict was sentenced to 25 years’ imprisonment.

Aside from the effect of excluding the imposition of the death penalty (and, for at least one resentencing judge, life imprisonment), it is difficult to quantify the specific sentence discount that a missing court record had on each sentence imposed in the Kafantayeni Project. A missing court record is but one of an inexhaustible list of mitigating factors that a judge can take into account when determining a just sentence. In addition to the mitigating factors arising from the facts of the case and the individual's personal circumstances, the unconstitutional death sentence, protracted time on remand, poor conditions of detention and missing court files were accepted as mitigators in these proceedings. Ultimately, the average length of the determinate sentences handed down in cases with and without court files was virtually identical at 24.18 years and 24.10 years respectively.Footnote ⁶⁵ This may point to the expert work of the defence and prosecution in reconstructing missing court files and providing judges with comprehensive submissions on sentence.

Interestingly, however, a separate effect was that convicts with missing court files were nearly twice as likely to be immediately released from prison upon being resentenced. Of the 84 cases where the convict was resentenced with the trial record entirely missing, 33 (ie 39 per cent) resulted in the court ordering the immediate release of the prisoner, whereas, of the 63 cases where the convict was resentenced with a complete trial record, only 14 (ie 20 per cent) resulted in the court ordering the immediate release of the prisoner.Footnote ⁶⁶ This difference may be explained, in part, by the fact that the reconstruction of some missing court files resulted in a limited or unclear account of the facts,Footnote ⁶⁷ or there was a material difference between the facts proffered by the defence and the prosecution.Footnote ⁶⁸ In these circumstances the resentencing court would resolve the ambiguity in the convict's favour, thereby increasing the likelihood of an immediate release order being an appropriate remedy. This may have been especially true if the known facts did not point to it being among the worst murders or if there were additional, powerful mitigating factors.

KAFANTAYENI APPEALS

The Kafantayeni beneficiaries who are yet to be released have the right to appeal their new sentences and, in most cases, their convictions.Footnote ⁶⁹ To do so, the Supreme Court requires them to give notice of their intention to appeal within 30 days after the date of judgment.Footnote ⁷⁰ This poses a real problem for prisoners who are largely illiterate and lack the resources required to source legal assistance.Footnote ⁷¹

Fortunately, the Supreme Court has the power to extend the time for giving notice of an intention to appeal,Footnote ⁷² and typically does so in criminal cases, in recognition of the difficulties prisoners have obtaining legal assistance and because “substantial justice should be done without undue regard for technicality”.Footnote ⁷³ It is highly likely then that the Supreme Court will allow the Kafantayeni beneficiaries to appeal their convictions and / or sentences out of time, especially considering they were subject to constitutional violations by virtue of being mandatorily sentenced to death.

The Kafantayeni beneficiaries who decide to appeal their new sentences must proceed with caution. While the Supreme Court has the power to substitute the sentence with a less severe one, it may also issue a more severe one,Footnote ⁷⁴ which in the case of murder may be life imprisonment or death. Those with complete court records are at a higher risk of a harsher sentence. The Supreme Court's position in Chalera makes it less likely that a prisoner whose missing court file had been reconstructed would have their determinate sentences substituted with life imprisonment or death. Nevertheless, the Supreme Court is not bound by its own rulings nor by the High Court's ruling that it would be “completely inappropriate to impose a death sentence” where there is uncertainty around the facts of the offence.Footnote ⁷⁵

Kafantayeni appeals provide the Supreme Court with the opportunity to affirm or reject the components of sentencing law that were established by the High Court in the resentencing project. In light of the Supreme Court's position in Chalera regarding the safety of conviction where the record is incomplete, it seems likely that the principle established in Lackson Dzimbiri (that the convict cannot be sentenced to death “where the trial record is wholly or partially missing such that there is uncertainty as regards the circumstances of the commission of the offence”)Footnote ⁷⁶ would be affirmed and extended to sentencing on appeal. It is less clear, however, whether the principle established in Patson Mtepa,Footnote ⁷⁷ preventing the imposition of life imprisonment in cases where the court record is missing, will be affirmed, as it was only adopted by a solitary resentencing judge and one Kafantayeni beneficiary was sentenced to life imprisonment, despite his missing trial record.Footnote ⁷⁸