By Chesa Boudin
Cornfields abut strip malls in Malawi's capital city, Lilongwe. Small and landlocked in southeast Africa, the nation formerly known as Nyasaland has a per capita income of $900 a year. Ninety percent of Malawians work in agriculture, and the country subsists largely on corn. Malawi is poorer than almost anywhere in the world.
It might seem an odd place for students to spend their spring break, but for the last three years, Northwestern University School of Law has sent a team of students to Malawi during spring break.
Sandra Babcock, clinical director of the Center for International Human Rights at the Bluhm Legal Clinic, has made six trips to Malawi since 2007. Her work there is an example of her long-term commitment to international human rights and the clinical education of her students.
"Our work in Malawi," Babcock said, "provides an extraordinary opportunity for Northwestern students to learn valuable legal skills and make a real difference in the lives of individuals who have endured unbearable hardships."
Emily Seymore, a second-year student at Northwestern, joined Babcock's clinical team because of her "interest in practical, hands-on legal work" and desire to "use my developing legal skills to benefit someone who did not have access to legal services or support."
Seymore and her fellow Northwestern students spent much of the past semester preparing for the trip to Malawi with legal research and writing. Among other things, they were tasked with evaluating Malawi's draft mental health bill for compliance with international legal norms enshrined in the United Nations Convention on the Rights of Persons with Disabilities, and the United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care.
Days before the students left Chicago, the United Nations agreed to fund a workshop in Malawi on the rights of individuals with mental disabilities - all the students needed to do was organize it. The students went into overdrive, finalizing a report on the draft bill, coordinating logistics and inviting panelists, speakers and participants from afar.
And so again this March, Babcock made the 36-hour journey with a teaching fellow and four of her students in tow. Once in Lilongwe, they met with a Dutch lawyer, a psychiatrist from San Francisco, and the author of this article - a student at Yale Law School. The team's mission was to spend several days working in Malawi's prisons and sole mental institution.
In practice, this meant seeking audiences with the minister of health, the director of public prosecutions (DPP) in the Ministry of Justice, and the country's sole psychiatrist. Those formal meetings in government conference rooms were the prerequisites for gaining access to the mental hospital and an open-air maximum security prison, where students could interview inmates and gather information about their physical and mental health, family background and possible legal defenses.
The team's arrival marked a significant influx of legal expertise and energy into a country where the criminal justice system struggles to serve the legal needs of its 15 million citizens. In 2004, partly out of recognition of the shortcomings in its administration of criminal justice, Malawi hosted a conference on access to legal aid and was one of the 21 African countries that adopted the Lilongwe Declaration on Accessing Legal Aid in the Criminal Justice System in Africa. The declaration noted that lawyers were in short supply across the region and recommended that a diverse array of legal services providers - including law clinics, students, paralegals and legal assistants - work to improve access to legal aid for the poor.
Like all experienced international human rights lawyers, Babcock works closely with local partners. Mandy Murphy, a second-year student who has made two trips to Malawi with Babcock, was surprised to see the importance of relationship-building in international human rights and legal work.
"Usually I think of the attorney-client relationship as central to the profession," Murphy said, "but to do the work she does requires her to build all kinds of relationships on the ground." Babcock's ability "to show empathy for the positions of all the stakeholders with a profound cultural competence was a huge takeaway."
For example, Babcock has learned a few words of Chichewa, Malawi's national language, so she can greet and exchange pleasantries with people, including death row inmates and government ministers, in their native language before settling down to work in English or through an interpreter. More significant still has been her ability to build a relationship with a local Malawian NGO.
Northwestern's work in Malawi would not be possible without the cooperation and support of the Paralegal Advisory Service Institute (PASI). PASI started in Malawi in May 2000 as an initiative of Penal Reform International (PRI), which sought to create a private-public partnership linking local NGOs with the Ministry of Justice and Malawi's Prison Service. The organization grew quickly, so that by 2005 it had hired 38 full-time paralegals with operations in 21 of Malawi's 26 prisons and in 18 police stations and 11 courts across the country.
Clifford W. Msiska, PASI's national director, received his legal training in Europe decades ago. His perennial smile and penchant for saying "sure, sure" in any and every circumstance can be misleading: He knows how to get things done in a country where resources and manpower are limited. More than just a model of efficiency and punctuality, Msiska has dedicated his career to improving Malawi's criminal justice system by training paralegals to work with prison staff, prosecutors, police and public defenders.
In a country where lawyers are few and far between, PASI's national presence helps ensure that detainees have some interaction with a legal professional. Though paralegals cannot appear in court on behalf of clients or fully compensate for the dearth of lawyers, they can provide valuable advice, run know-your-rights programs and serve as a crucial stopgap in an overburdened legal system just as "barefoot" doctors do for medicine. PASI's work has become a model for similar programs in Kenya and Bangladesh.
In Malawi, PASI played a key role in supporting and guiding the efforts of the Northwestern team. PASI and PRI helped structure Northwestern's initial visit to Malawi by advising the team about the backlog of homicide cases that was contributing to prison overcrowding, and by suggesting ways in which the American law students could assist the Malawian criminal justice system.
From the beginning, PASI has used its networks and local credibility to allow the Northwestern team to gain access to the prisons and meet with important decision-makers such as the minister of justice, the solicitor general, the attorney general and Supreme Court justices.
In addition, PASI's work in prisons across Malawi provided the Northwestern team with invaluable data about trends in incarceration and bottlenecks in the criminal justice system that warrant special attention. On a practical level, PASI paralegals worked as interpreters for the Northwestern team during meetings and interviews with detainees.
"PASI and its paralegals are an enormous inspiration, and without them it would be difficult for us to accomplish anything," Babcock said.
In 2007 and 2008, the Northwestern team worked with PASI to help reduce the country's homicide backlog. At the time, hundreds of men and women had been waiting more than two years, and some as many as 10, without access to a lawyer or a court.
The students divided into teams to review pre-trial detainee files at the legal aid office and the public prosecution office. When a member of either team identified an inmate accused of murder who might have a case for reduction of charges, release on time served or outright acquittal for lack of evidence, the team pulled the file and made a trip to the prison to interview the accused.
With paralegals as interpreters and knowledgeable allies the students interviewed the men and women whose files they had in hand to corroborate or fill in gaps. Where appropriate, the students would eventually write memos on each prisoner interviewed, with recommendations for Legal Aid and the DPP. In other cases, the students, in partnership with the paralegals, traveled to rural areas to gather witnesses for trial or collect exculpatory evidence on behalf of a detainee they had interviewed.
Vanessa Ortblad joined the 2009 team as a third-year student and believes the work the team did in Malawi was "instrumental in obtaining an acquittal for an innocent client." For that client, at least, the stakes were high: Were it not for the Northwestern team's investigation he probably would have been convicted because "the prosecution's file failed to disclose that he had acted in self-defense."
Rather than trying to circumvent the existing legal system, the Northwestern teams have chosen to work with the courts, the DPP, Legal Aid and PASI.
Though slow and arduous, this approach has maximized their impact. Not only have they secured the release of more than 25 prisoners, they have helped Malawi's institutional stakeholders consider alternative approaches to addressing the logjam of pre-trial and post-conviction cases awaiting hearings. In particular, the team has promoted the concept of alternative dispute resolution through plea or sentencing agreements.
"The students are key players in this effort," Babcock said. "They work 15-hour days while we're in Malawi so they can help as many people as possible."
Though the 25 prisoners freed thus far may seem like a small number, when put in context, the results are phenomenal. Countless lawyers, including those who are dedicated criminal defense lawyers in their home country, may not free that many prisoners in the course of an entire career.
Babcock's team is small, with limited resources and only a few years of operation. Malawi's prisons, overcrowded as they are, hold only 11,000 prisoners, or just 7 percent of the number incarcerated in California alone. In its first several years the Northwestern project focused on pretrial detainees - a tiny fraction of the total prison population - rather than working with the majority of inmates already convicted and perhaps properly serving out their sentences in accordance with Malawian law.
Recent developments in Malawian jurisprudence, however, have created new opportunities for the Northwestern team's work. Malawi has long had a mandatory death penalty for anyone convicted of murder, and there are close to 200 men and women in Zomba Prison who were condemned to death under the mandatory death penalty scheme. But in 2007 the Malawi High Court, in Kafantayeni and Others v. Attorney Gen., held that the mandatory death sentence was unconstitutional and that each defendant was entitled to an individualized sentencing proceeding.
"I began to wonder whether anyone was advocating for resentencing hearings on behalf of the men and women in Zomba Prison," Babcock said.
"They are clearly entitled to an individualized sentencing hearing under Kafantayeni and international human rights law. But as of 2010, only a handful had ever spoken to a lawyer, and the courts had not convened a single hearing."
The Northwestern team decided that they would investigate the situation during this year's trip, in addition to organizing the U.N.-funded mental health workshop.
In March 2010, the Northwestern team piled into rented jeeps for a four-hour drive to Zomba Prison.
Once there, students, accompanied by PASI's team of paralegals, would interview every man and woman sentenced to death under the now-unconstitutional mandatory death penalty scheme.
After arriving in Zomba, the students split into teams: One team went to the prison to begin interviewing the prisoners, while another went to the mental hospital to begin preparing for the workshop. The modest inn where the team stayed in Zomba lost power nearly every night, so the students often worked by candlelight to prepare the next day's work.
By the end of the trip, the students had interviewed 170 prisoners and organized an unprecedented workshop for nurses, lawyers, judges, police officers, prison staff and community activists to discuss the treatment of people with mental disabilities in prisons and society.
"With hard work, patience and perseverance, I think we will ultimately win the release of at least 50 of the 170 prisoners we interviewed," Babcock said.
"Sandra's a good example of someone who is the kind of lawyer she always wanted to be," said Murphy, reflecting on her work with Babcock in Malawi. "One thing she's instilled in me: If no one's doing the kind of work you want to do, make it happen."
Chesa Boudin, a Chicago native, first joined professor Babcock's team in Malawi in 2008. At the time, he was on an around-the-world trip while finishing a travel memoir, "Gringo: A Coming of Age in Latin America" (Scribner, 2009). He is now in his second year at Yale Law School.