1. In communication no 64/92 Krischna Achuthan appealed to the Commission on
behalf of his father-in-law, Aleke Banda, a prominent political figure who
at the time of the communication had been imprisoned for over 12 years
without legal charge or trial. Mr. Achuthan had met with two successive
heads of intelligence of Malawi who said there was no case pending against
Mr. Banda, but that he was being held “at the pleasure of the Head of
2. In communications nos 68/92 and 78/92 Amnesty International petitioned
the Commission on behalf of Orton and Vera Chirwa. Orton Chirwa had been a
prominent political figure in Malawi before independence, but had been
living in exile in Zambia with his wife since 1964 because of differences
with Malawi’s President Banda. In 1981, the Malawi security officials took
them into custody and they were subsequently sentenced to death for treason
at a trial in the Southern Regional Traditional Court. They claimed at this
trial that they had been abducted from Zambia. They were denied legal
representation. The sentences were upheld by the National Traditional
Appeals Court, although the Appeals Court criticised many aspects of the
conduct of the trial.
3. After international protest, the sentences were commuted to life
imprisonment. The Chirwas were held in almost complete solitary confinement,
given extremely poor food, inadequate medical care, shackled for long
periods of time within their cells and prevented from seeing each other for
4. In its supplemental communication consisting of a report on Malawi for
March to July 1992, Amnesty International described the arrests of many
office workers in 1992 because of suspicions that the equipment used in
their work, such as computers and fax machines, could be used to disseminate
the propaganda of the pro-democracy movement. The report also described
extremely poor prison conditions, including overcrowding and torture
consisting of beatings and electric shocks.
5. The communication also described the detention and intimidation of Roman
Catholic bishops. Trade union leaders were imprisoned, and peacefully
striking workers were shot and killed by the police. Police also raided
student dormitories and arrested students who were beaten and tortured.
6. Article 4 of the African Charter reads:
“Every human being shall be entitled to respect for his life.”
Shootings by police officers are a violation of this right.”
7. .Article 5 of the African Charter provides as follows:
“All forms of torture, cruel, inhuman or degrading punishment and treatment
shall be prohibited.”
The conditions of overcrowding and acts of beating and torture that took
place in prisons in Malawi contravened this article. Aspects of the
treatment of Vera and Orton Chirwa such as excessive solitary confinement,
shackling within a cell, extremely poor quality food and denial of access to
adequate medical care, were also in contravention of this article.
8. Article 6 of the African Charter reads:
“Every individual shall have the right to liberty and to the security of his
person. . .”
The massive and arbitrary arrests of office workers, trade unionists, Roman
Catholic bishops and students violated this article. The arbitrary detention
Mr. Aleke Banda suffered is likewise a violation of article 6.
9. Mr. Banda was not allowed recourse to the national courts to challenge
the violation of his fundamental right to liberty as guaranteed by article 6
of the African Charter and the constitution of Malawi. Furthermore, Aleke
Banda was detained indefinitely without trial. The Commission finds that Mr.
Banda’s imprisonment violated article 7(1)(a) and (d) of the African
10. Vera and Orton Chirwa were tried before the Southern Region Traditional
Court without being defended by a counsel. This constitutes a violation of
article 7(1)(c) of the African Charter.
11. The Commission notes that Malawi has undergone important political
change after the submission of the communications. Multiparty elections have
been held, resulting in a new government. The Commission hopes that a new
era of respect for the human rights of Malawi’s citizens has begun.
12. Principles of international law stipulate, however, that a new
government inherits the previous government’s international obligations,
including the responsibility for the previous government’s mismanagement.
The change of government in Malawi does not extinguish the present claim
before the Commission. Althought the present government of Malawi did not
commit the human rights abuses complained of, it is responsible for the
reparation of these abuses.
FOR THESE REASONS, THE COMMISSION holds that there has been a violation of
articles 4, 5, 6, and 7(1)(a), (c) and (d) of the African Charter.