COMMUNITY SERVICE SENTENCES IN MALAWI:MANAGEMENT CHALLENGES AND POSSIBLE SOLUTIONS
Justus Asante Kishindo *I. INTRODUCTION
Rule 8 of the United Nations Standard Minimum Rules for Non-Custodial Measures(the Tokyo Rules) states in part that a judicial authority, having at its disposal a range of
non-custodial measures, should take into consideration in its decision the rehabilitativeneeds of the offender; the protection of society; and the interests of the victim. The victim
should be consulted whenever appropriate. The rule lists a number of alternatives tocustodial sentences which include community service, admonition, suspended or deferredsentence, conditional discharge, and restitution or a compensation order to the victim.
Malawi has in its section 25 of the Penal Code 1 a number of punishments that can be
inflicted by a court. There are several non-custodial punishments, including fine;compensation; finding security to keep the peace and be of good behaviour, or to come up
for sentence; liability to police supervision; forfeiture; suspended sentence; public work;community service; probation; weekend or public holiday; and attendance centre orders.
Among the various non-custodial measures in Malawi, I am of the opinion that
community service is the one that has elaborate rules and structures to ensure its smooth
implementation. 2
It is worth noting that in Malawi, community service is not completely a new form ofpunishment. Prior to the introduction of community service in 1999, there was in effect aform of community sentence called public work. Section 3(1) of the Convicted Persons(Employment on Public Work) Act 3 states that when a person is convicted of any offence
by a court and such court is of the opinion that the offence would be adequately punishedby a sentence of imprisonment not exceeding six months, the court may, instead of
imposing a sentence of imprisonment, order such person to perform public work for aperiod not exceeding six months. Over the years, however, presiding magistrates andjudges have neglected meting out this form of punishment to offenders for reasons I
cannot readily outline since I may need to actually talk to some of them to find out if they
are aware of this provision and, if they are, why they do not make use of it. No matter
what the reason is for abandoning public work, the punishment is still in the statutes andit can still be imposed as a valid sentence.

*

Senior Deputy Registrar of the High Court and the Supreme Court of Appeal, Malawi.
Chapter 7:01 of the Laws of Malawi.
2
Community Service (General) Rules made under section 364A of the Criminal Procedure and Evidence
Code, Chapter 8:01 of the Laws of Malawi.
3
Chapter 9:03 of the Laws of Malawi (enacted on 28th May 1958).
.
1

132

174TH INTERNATIONAL SENIOR SEMINARPARTICIPANTS' PAPERS

II. IMPLEMENTATION OF COMMUNITY SERVICE
A sentencing court will have to take into account three major factors when deciding
whether to impose a community service sentence or not. The factors are: the maximum
term of the applicable sentence; the nature of the offence committed; and the eligibility ofthe offender for such sentence. Other factors to consider include: personal attributes andantecedents of the offender; whether the offender has a fixed place of abode; whether theoffender has a family, dependants or other responsibilities in the community; whether theaccused is employed; whether the offender is engaged in academic or other educational
pursuits; distance to the placement institution; and age and capacity of the offender.
Before a community sentence is imposed, it is important that the offender should
consent to that sentence. The court is obliged to explain to the offender what community
service entails and should also point out other alternatives available to the offender.
Where the offender withholds consent, community service may not be imposed, 4 butother non-custodial sentences would apply.
An offender is expected to perform forty hours of community service in a month. 5
Therefore, the maximum number of hours that can be imposed in a community service
sentence is four hundred and eighty hours.
It is important to place an offender at a public institution (a placement institution) thatis appropriate for the offender’s skills, talents and other attributes for the benefit of boththe community and the offender.
A placement institution must confirm that it is willing to receive and supervise an
offender on community service. Where there is no placement institution close to theoffender’s home, or where no placement institution is willing to receive an offender, theoffender may be placed at a courthouse or at a police formation. Even though courts andthe police are public institutions, it is usually discouraged to place offenders on
community service at these institutions.
III. MANAGEMENT CHALLENGES OF COMMUNITY SERVICE IN MALAWIThe main purpose for introducing community service in Malawi was to assist in
reducing congestion in prisons and rehabilitate offenders who had committed minor
offences. However, opponents and sceptics argued that, at a time when serious offencessuch as robbery and burglary were on the increase and the public was crying out for evenstiffer custodial sentences against offenders, community service would be seen as offeringa soft option for offenders. 6 It is very likely that there is still a significant number of
persons, including judicial officers, who still hold the opinion that community service isno punishment at all.
There seems to be a misconception among magistrates that community service has
replaced all other non-custodial sentences. During the opening ceremony for a series of4

Malawi Government, Community Service Revised Handbook (2017).
Form CS/6 under the Community Service (General) Rules.
6
Malawi Government, Community Service Revised Handbook (2017).
5

133

RESOURCE MATERIAL SERIES NO. 111

workshops 7 in the month of March 2003, Chief Justice Leonard Unyolo 8 lamented thatwith the advent of community service as an alternative to custody the courts were tending
to overlook the application of other forms of suspended sentences even where they might
be appropriate. It was the Chief Justice’s advice that just because an offender fails to meetthe criteria for community service it should not follow automatically that he or she must,
therefore, be imprisoned. Under section 25 of the Penal Code (the so-called basket ofpenalties) there are many non-custodial options that can be used if community service is
not appropriate. 9 Once a court entertains the idea of sentencing an offender to community
service, it should be safely assumed that the court never intended to send the offender toprison in any event.
Community service stands out from the other forms of punishment due to the fact that
offenders on community service are made to repay the community that they haveoffended, and the community directly benefits from the unpaid work done by theoffenders. Even though public work is similar to community service, section 5(b) of theConvicted Persons (Employment on Public Work) Act provides that offenders can residein labour camps and the District Commissioner is obliged to feed them while offenders on
community service fend for themselves and their families. It is assumed that thisarrangement allows for offenders who are employed to keep their jobs. 10 There is,however, no guarantee that an offender cannot be dismissed from his or her employmenton the basis that he or she was not sent to prison. Certain offences that involve dishonesty,
like theft, might warrant instant dismissal or other disciplinary measures in some
workplaces.
Section 364A of the Criminal Procedure and Evidence Code empowers the Chief
Justice to make rules relating to the imposition of and performance of community service.
Community Service (General) Rules 2000 govern, among other things, the procedure
before, during and after the imposition of a community service order and the appointmentof national coordinators and regional coordinators of community service. The
coordinators and community service officers are responsible for investigating thesuitability of offenders for community service. They are also responsible for monitoring
offenders when they are placed on community service. Supervision of offenders is doneby heads of institutions where community service is being performed. The supervisors are
expected to file a report to the court when the sentence is completed or when the offenderdefaults.
Community service supervisors already have several other responsibilities as public
officers. Therefore, they may not consider it their responsibility to monitor offenders on
community service, especially when they do not get any monetary compensation for their
extra responsibilities.

7

The theme for the workshops was “Alternatives to Custodial Penalties: Judicial Role in Promoting Rightsof Offenders”.
8
Chief Justice Leonard Unyolo retired in or around 2006.
9
The Chief Justice’s speech was reported in a magazine called The Reformer. Malawi National Committee
on Community Service, The Reformer (Lilongwe, 2004).
10
Malawi. Malawi National Committee on Community Service, A Hand-book on Community Service inMalawi. (Undated).

134

174TH INTERNATIONAL SENIOR SEMINARPARTICIPANTS' PAPERS

IV. RECOMMENDATIONSCommunity service is aimed at rehabilitating the offender. By continuing to stay inthe community, the understanding is that the offender will be treated by the community asa person who just made a mistake and not as a criminal. There is need for a massiveawareness campaign by organs of State to sensitize the general public on the importanceof accepting and supporting community service. We do not want a situation where an
offender completes a community service sentence but he or she is still labelled by his or
her community as a criminal.
According to the Malawi Magistrates’ Handbook, 11 rehabilitation is a sentence
imposed for purposes of aiding an offender to reform so that he or she does not offend
again. What does not come out clearly is whether an offender can reform by simply beingoutside of prison. I believe that there is need for extra interventions like counselling andskills training for the rehabilitation to succeed.
In my view, it is an anomaly for the Malawi judiciary to set up a department tospecifically monitor one form of punishment when all the other punishments areadministered by the executive arm of government. It is very likely that, in areas where
there are no court-appointed community service officers, community service orders will
seldom be imposed. In my view, therefore, under the current decentralized form of local
government, offenders who receive community service sentences should be supervised by
the district social welfare officer or any other officer appointed by the District
Commissioner.
The recent statistics 12 released by the Judiciary’s Directorate of Community Service
show that, despite the sentence’s good intentions, there is a high rate of defaulters. Out of
843 offenders placed on community service, 174 offenders defaulted on their sentences.
A majority of the defaulters are in urban areas. They live on rented premises and do nothold permanent jobs. It is recommended that there should be specific officers assigned toindividual offenders who can monitor the offenders’ movements even when the offenders
are not at the placement institution. There is also need to revise the way community
service officers conduct background checks on offenders before sentencing. It is very
likely that community service sentences are being imposed without due regard to thesuitability of the offender for community service.
According to the recent Malawi Inspectorate of Prisons report, 13 Malawi prisons areholding 14,788 inmates against an occupancy of 5,000. The Malawi Human Rights
Commission recommended that some prisoners be released and community service beintroduced for petty offenders. The report acknowledges that the current capacity ofprisons does not match the country’s population. While waiting for the construction of
more prisons, courts keep sending offenders to the already congested prisons. There is alimit as to how far community service can go in reducing congestion in prisons. The
danger of concentrating too much on congestion in prisons is that the courts and other key
11

Malawi. Judiciary. (2005). Handbook for Magistrates (revised edition) at page 5.
Accessed on 11 September 2019 through monthly and quarterly reports.
13
As reported in the The Nation newspaper on 29 September 2019, available athttps://mwnation.com/malawi-prisons-not-fit-for-occupancy-inspectorate/.
12

135

RESOURCE MATERIAL SERIES NO. 111

stakeholders in the criminal justice system might lose focus on rehabilitation of offenders,the major aim of community service and other non-custodial sentences.
The success of community service in Malawi is measured by the number ofcompleted orders against those registered regardless of the circumstances under which
they were completed. The fact that an offender has completed a community service
sentence might not in itself be an effective tool for measuring whether an offender has
been rehabilitated or not. Whichever department will take over the administration ofcommunity service must come up with tools for measuring the extent to which an
offender placed on community service is reformed.
V. CONCLUSION
Section 339 and section 340 of the Criminal Evidence and Procedure Code implore asentencing court to always consider a non-custodial sentence when dealing with first-timeoffenders. The framers of this provision must have had very good intentions towards thepeople they represent. First-time offenders should be given a second chance in life. Thereis no doubt that cases will arise that deserve tough penalties, but each case must be dealt
with based on its unique facts. Well established sentencing principles must be followed.
While it is generally accepted that community service is a very useful tool inrehabilitating offenders, there is no concrete evidence to show that offenders placed oncommunity service really get rehabilitated. There is no way of measuring the extent of therehabilitation.
Major players in the criminal justice sector should look at ways of reforming thepractice and procedure in criminal proceedings so that rehabilitation of offenders comesout clearly as a major consideration when dealing with offenders at any stage of thecriminal proceedings. Consideration of alternatives to imprisonment should start even at
the pre-trial stage. Alternatives like diversion, mediation and reconciliation can be
introduced to cater for adult offenders in deserving cases.
Apart from pre-sentencing reports from the judiciary’s Community Service Officers,
other reports can be received from the victims of the offence, community leaders andnon-governmental organizations, among others, to determine the best way of dealing with
an offender without causing public outrage.
Since most of the criminal cases are heard in the subordinate (magistrates’) courts,
superior courts of record like the Supreme Court of Appeal and the High Court must
endeavour to regularly issue sentencing guidelines to ensure a uniformity of approach incases of a similar nature.
During the process of reviewing sentences imposed by subordinate courts, the High
Court should be able to impose a community service sentence or any other non-custodial
sentence even on offenders who have served part of their sentences in prison.
Community service should be managed by a specialized department (preferably a
department of correctional services) that will be charged with supervising or designing

136

174TH INTERNATIONAL SENIOR SEMINARPARTICIPANTS' PAPERS

rehabilitative programmes for offenders. This development would take the burden ofmonitoring sentences after they have been imposed by the courts.
There should be a deliberate effort by the state to sensitize the general public and key
stakeholders in the criminal justice system on the importance of rehabilitating andaccepting back into the community persons who for some reason or the other have broken
the law. This is particularly important now that mob justice has become common place.

137