People languish behind bars for years in countries like eSwatini and Malawi before their cases come to court.
In a world increasingly defined by impunity and political repression, the erosion of the rights once championed by the African Charter on Human and Peoples’ Rights and the post-independence constitutions of many African countries is an alarming reality. Forty years after adopting the African Charter, autocratic regimes across the continent are chipping away at its promises. eSwatini and Malawi, like many in the Southern African region, 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.
At the heart of the African Charter 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 before a competent 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. 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, remanded in prison, and convicted in 2009. But he waited 14 years for sentencing, which came in 2024. The Malawi Bail Project has reported that 800 of the 1 800 inmates in one of the biggest prisons in the country had been detained for months, or even years, without trial.
These stories are not unique; they reflect a broader, profoundly concerning, trend in those countries’ criminal justice systems. They violate the right to liberty and to be tried within a reasonable time under articles 6 and 7(d) of the African Charter.
Such prolonged pre-trial detentions and delays further violate the explicit 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, and section 21 of eSwatini’s constitution, which provides for the right to a fair and speedy public hearing.
While pre-trial detention is not a human rights violation in and of itself, where it is prolonged, justice is delayed, and thus, justice is 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 a failing justice system.
What needs to change
Africa must take seriously its commitment to the values of the African Charter and other regional obligations. The criminal justice system must be reformed from the inside out, starting with accountability and oversight.
The minister of justice in eSwatini must immediately establish an independent oversight body for correctional services as per sections 123 and 124 of the Correctional Services Act. This body must be empowered to monitor the conditions and duration of pretrial detention, investigate cases of abuse or unlawful arrest, and make binding recommendations for reform. It should include members of parliament, civil society representatives, judicial officers and human rights institutions.
Malawi’s parliament recently passed the Prison Bill of 2025, which aims to align prison management with international human rights standards. The Bill increases prison oversight by introducing inspections by independent visitors. It further strengthens the effectiveness of the inspectorate of prisons by creating a secretariat.
These reforms, if implemented, will increase oversight of the prisons and monitor issues of pre-trial detention. Legislative bodies must make adequate financial provisions for these oversight mechanisms to translate into effective protection of prisoners’ rights.
Nelson Mandela once said, “No one truly knows a nation until one has been inside its prisons.” He argued that a society’s true character is revealed by how it treats its prisoners. Today, laws provide the tools — what is missing is the political will to establish effective oversight bodies. The people deserve a criminal 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 is the civic rights cluster lead and Chikondi Chijozi is the criminal justice cluster lead at the Southern Africa Litigation Centre.
