Judiciarisation of the mentally ill and/or mentally incapacitated in the Malawi criminal justice system: Gaps and flaws of human rights protection

Rates (where recorded) of mental illness, intellectual disabilities and co-morbidities are disproportionately high and rising among global prison populations. There is little data on the extent of mental illness and/or mental incapacity in prison populations in the Global South. Criminal justice systems are generally under-resourced, with a lack of adequate forensic monitoring, availability of specialist psychological and psychiatric expertise, and system coordination with mental health treatment and support services.

Very little is known with regard to the judiciarisation of the mentally ill and/or mentally incapacitated in African criminal justice systems. In this Commentary we focus on Malawi, as a least developed country in sub-Saharan Africa. We present the international human rights framework pertinent to the judiciarisation of people with disability, the global discourse around disability-neutral doctrines and the contentiousness of the link between mental and legal capacity. We discuss challenges and procedural complexities in the Malawi criminal justice system as it relates to how people with mental illness and/or mental incapacity navigate the process and to what extent their basic human rights are upheld.

Mental health legislation and policies to uphold the rights of the mentally ill and/or mentally incapacitated in the criminal justice system are underdeveloped (and under-resourced). There are backlogs in forensic assessments to determine competency to stand trial and criminal responsibility; inadequate availability of forensic beds; and insufficient coverage of community and prison based mental health services. Lengthy detention periods in overcrowded unsafe conditions are common, with little or no access to specialist medical care.

We present medico-legal and clinical recommendations for enhanced human rights monitoring and protections cognisant of the various challenges in ensuring the implementation of human rights and of due process in Malawi. We encourage the government to consider formal diversion options via mental health courts and invest in the capacity of forensic specialists and hospitals to support court assessments and community care. Oversight mechanisms preventing human rights abuses of these very vulnerable individuals are crucial in all mental health settings in Malawi, not limited to police custody, remand detention facilities and prisons. Ratification of the Optional Protocol of the Convention against Torture is imperative.