To Condemn or to Condone? Criminal Justice Work Abroad

Tyler Holmes
My purpose is to improve rights compliance, but my memorandum of understanding with the police highlights the importance of confidentiality.

My purpose is to improve rights compliance, but my memorandum of understanding with the police highlights the importance of confidentiality.

allanswart via iStock

I work in what is amorphously called “human rights.” In practice, I am an observer, an advocate, and an administrator.

I am an attorney navigating layered ethical responsibilities to my project, Irish Rule of Law International’s Malawi Access to Justice Programme, as well as public donors, the Malawi Police Service, and detained individuals. As noted by Professor Sandra L. Babcock, decisions made in environments like Malawi involve a lot of gut thinking, consideration of and following relevant actors’ requests, and, hopefully, lots of transparency. As a Kansas-trained attorney, in the back of my mind, I often consider the Kansas Rules of Professional Responsibility.

My role is to encourage the Malawi Police Service (MPS) to meet the burden of proof for arresting an individual before making an arrest, to treat suspects in accordance with their pretrial rights, and to divert petty criminals (especially children). I’ve done more than 400 visits to 59 different police cells, acting—at best—as permission for child protection officers to advocate for the expedient handling of suspects.

A standard 12-foot by 12-foot cell holds up to 25 people at a time. Frequently only lit by a narrow, barred window across the top of the room, inexplicably painted black, I often hold my hand over my eyes to look into suspects’ faces. The cell conditions are indelible: vulnerable, sometimes wounded people crowd together on cement in the dark, enveloped in their own smell, and subject to extreme temperatures.

International bodies—and dicta of a Malawian High Court—have held that being subjected to such conditions is a violation of a detained person’s right to be treated with dignity. The United Nations Human Rights Committee held in Fongum Forji-Dinka v. Cameroon that to be “kept in a wet and dirty cell without a bed, table or any sanitary facilities” violated a detainee’s rights under Article 10(1) of the International Covenant on Civil and Political Rights, which is echoed in section 42(1)(b) of Malawi’s constitution. In addition to dreadful cell conditions, the US Department of State’s 2018 Human Rights Report noted Malawian “police sometimes used excessive force and other unlawful practices, including torture, to extract confessions from suspects.”

I tend to fall back on my training when navigating how to do right by the MPS and an accused, typically an individual in a class of people systemically abused by a state institution. Kansas Rule 1.2(d) states that a lawyer must not “counsel a client to engage . . . in conduct that the lawyer knows is criminal.” Comment 7 to this rule acknowledges the delicate balance between a lawyer’s responsibility to protect his client’s confidence and his responsibility not to further or conceal criminal activity.

Kansas Rule 1.6 addresses the client-lawyer relationship and confidentiality of information, which a lawyer can breach if she believes it reasonably necessary to prevent the client from committing a crime (in the model rule: substantial bodily harm or death). Comment 9 to the rule encourages lawyers not to disclose confidential information to encourage clients to be more forthcoming and give the lawyer the ability to counsel against the nefarious conduct.

In Malawi, I occupy environments where individuals are harmed, and their rights are violated. This conduct is not always criminal, nor is the state immune. My purpose is to improve rights compliance, but my memorandum of understanding with the police highlights the importance of confidentiality. With all this in mind, I try to: (1) ensure my involvement in or discussion of systemic practices does not explicitly or implicitly support the continuation of bad practices; (2) ensure the MPS does not use my or the project’s presence to gloss over systemic failures; (3) report alleged violations to the MPS on a regular basis and advocate for the best available resolution—including with adverse groups, so long as the MPS consents first; and (4) encourage transparent, public discussion about policing practices.

My job requires envisioning myself as one member of an indefinitely long relay team. Whether or not I want to condemn the actions I see, I must observe my duties to the police, while creating opportunities for Malawians to design more just systems and promoting observation of constitutional rights as best I can.

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Tyler Holmes is a programme lawyer with Irish Rule of Law International’s Malawi Access to Justice Programme in Lilongwe.