In a world increasingly defined by impunity and political repression, the erosion of rights once championed by the African Charter on Human and Peoples’ Rights and the Constitutions of various African Countries post-independence, is an alarming reality. Forty years after the adoption of the African Charter, autocratic regimes across the continent are chipping away at its promises, and Eswatini and Malawi are no exception.
As civil society actors and human rights defenders, we must reimagine what access to justice truly means and insist on reforms that make it real. Without accountability, legal protections are just ink on paper. Without action, justice remains a privilege for the connected and a myth for people experiencing poverty.
The African Charter’s heart lies in the principle of fair and timely access to justice. It enshrines the right to a speedy trial and affirms that everyone is entitled to seek redress for rights violations. These are not luxuries of democratic societies; they are fundamental human rights.
However, these rights are consistently undermined in countries like Eswatini and Malawi. Pretrial detention has become not just a legal tool but a punitive measure against the politically inconvenient and economically powerless. Across Africa, the pretrial detention rate stands at 36%, outpacing the global average of 29%. That figure alone suggests systemic dysfunction. But the real story lies beneath the numbers in the lives of people languishing behind bars for years, their cases stalled or never brought to court.
Take the case of a man in Eswatini who has been in pre-trial detention since 2019 on serious charges yet has not been brought before a judge. His story is not unique. It reflects a broader, profoundly concerning trend in the country’s criminal justice system. Then there is political activist Mpandlana Shongwe, arrested in 2009 under the Suppression of Terrorism Act and released on bail, but whose case remains unresolved more than 15 years later. Despite approaching the courts in 2021 to have his matter enrolled, he continues to live in a legal limbo, under the cloud of state surveillance and the weight of unresolved charges.
In Malawi Wyson Bannet Big was arrested in 2007 and was remanded in prison and convicted in 2009. He however waited for his sentencing from 2010 to 2024. The 14-year wait for his sentence is a clear violation of the right to liberty and the right be tried within a reasonable time under articles 6 and 7(d) of the African Charter on Human and Peoples Rights respectively.
The Malawi Bail Project reported that in one of the biggest prisons in Malawi, 800 of the 1800 inmates had been detained there for months or years without trial. This clearly violates the African Charter and the clear provisions of section 161 of the Malawi Criminal Procedure and Evidence Code which sets out 30 days as the maximum time a person should spend in custody pending trial.
Where pre-trial detention is prolonged, that results in a delay of justice, and justice delayed is justice denied. Justice is not a favour granted by the State. It is guaranteed to everyone, poor or wealthy, activist or apolitical. We cannot afford to ignore the human cost of its failing justice system.
What Needs to Change
If Eswatini is serious about honouring its constitutional values and regional obligations, the justice system must be reformed from the inside out, starting with accountability and oversight. The Minister of Justice must immediately establish an independent oversight body for correctional services per sections 123 and 124 of the Correctional Services Act. This body should be empowered to monitor the conditions and duration of pretrial detention, investigate cases of abuse or unlawful arrest, and make binding recommendations for reform. Its composition should include, members of parliament, representatives from civil society, judicial officers, and human rights institutions.
The Parliament of Malawi recently passed the Prison Bill of 2025 which aims at aligning the management of the prisons with international human rights standards. One key issue to note is that the Bill increases the oversight of the prisons by introducing independent visitors and committees of independent visitors. The Bill further strengthens the effectiveness of the Inspectorate of Prison by creating a secretariat of the Inspectorate.
These reforms, if implemented will increase oversight of the prisons and monitor issues of pretrial detention. It will be critical that Parliament makes adequate financial provision for these oversight mechanisms to translate into effective protection of the rights of prisoners.
It is clear that law already provides the tools, missing is the political will. Establish effective oversight bodies. The people deserve a justice system that serves them, not silences them.
The African Charter cannot remain a ceremonial document. Its values must live in the daily experiences of our people. That begins with ensuring justice is not delayed, denied, or dependent on one’s status but accessible, timely, and fair for all.
Melusi Simelane & Chikondi Chijozi are legal practitioners from Southern Africa Litigation Centre
