In a dim, overcrowded cell at Lilongwe’s Maula Prison, Elias waits, not for trial, but for someone to pay the fine he cannot. Convicted of petty theft, he was not sentenced to prison directly.
But when he could not pay the court-imposed fine, he was locked away anyway. For the crime of poverty, his sentence continues.
A groundbreaking legal study has found that Elias’s story is far from exceptional.
Across Malawi, the poor are routinely jailed for failing to pay fines they cannot afford, while wealthier defendants convicted of the same offences walk free.
The research, titled Monetary Sanctions and Poverty in Malawi’s Criminal Justice System, by legal scholars Chikondi Mandala and Sarai Chisala-Tempelhoff, was published in the Modern Criminal Law Review and provides the first comprehensive analysis of how Malawi’s fine system interacts with income inequality and potentially violates the country’s Constitution.
Drawing on case law, statutory analysis, prison audits and comparative legal research, the authors show that Malawi’s seemingly neutral monetary sanction laws create unequal outcomes based solely on a person’s financial status.
They argue that the justice system operates as a “modern-day debtors’ prison”, one in which incarceration is not determined by the severity of the offence but by the inability to pay.
A Pipeline from Fines to Prison
Malawi’s Criminal Procedure and Evidence Code empowers magistrates to impose fines without requiring an assessment of a defendant’s ability to pay. Section 333 authorises imprisonment if a fine remains unpaid, and Section 330 allows for property seizure.
These fines often escalate as additional court, transport, and enforcement fees are added, trapping poor defendants in an ever-deepening cycle of debt.
Mandala and Chisala-Tempelhoff argue that for many Malawians, especially the majority who live below the poverty line, this legal architecture makes imprisonment almost inevitable.
Without property to seize or savings to draw from, many are jailed by default. Once incarcerated, they cannot earn income to repay what they owe, making the debt virtually permanent.
Cases that expose the pattern
One case highlighted in the study involves Isaac Namputo, a first-time offender fined the maximum penalty for unlawful possession of a wildlife trophy. No means inquiry was conducted. When he failed to pay, he was jailed for 12 months.
On appeal, High Court Judge Andrew Nyirenda ruled the sentence improper and reduced the fine, stressing that courts must assess a defendant’s financial capacity before imposing economic penalties.
Another case documented thirteen women, some as young as 16, arrested under the colonial-era offence of “rogue and vagabond.” Each was fined MWK2,000, with a default sentence of two months’ hard labor, despite court records noting they had no means of subsistence.
The High Court ultimately overturned the decision and ordered a refund of the fines.
But, such outcomes are rare.
The study notes that over 90 per cent of criminal cases are handled by lower magistrates’ courts, many of which are not courts of record.
Proceedings are often undocumented, and appeals are obstructed by lack of legal representation, costs, and distance.
Data gaps that obscure justice
A striking feature of Malawi’s justice system is its lack of disaggregated data. Prison logs rarely show when detention results specifically from unpaid fines. Lower courts do not consistently document proceedings or record when means assessments are skipped.
This absence, the researchers argue, is not benign, it is a structural blind spot that allows injustice to continue unexamined.
“What cannot be measured can be ignored,” they write. In this vacuum, the most vulnerable remain invisible to both policymakers and the public.
Audits provide glimpses of the scale.
A 2024 government audit found that more than two-thirds of pretrial detainees in audited prisons were legally eligible for release but remained incarcerated due to unaffordable bail or legal fees.
By June 2024, Malawi’s total prison population had surged to 16,536, more than double the system’s official capacity.
Legal and Constitutional red flags
The study contends that this system of monetary penalties conflicts with Malawi’s Constitution in multiple ways.
Section 20 guarantees equality before the law, yet wealth determines whether a person walks free or is jailed. Section 19 protects human dignity, something fundamentally undermined, the authors argue, by imprisoning people solely because they are poor.
And Section 42 promises meaningful access to justice, which crumbles in a system with no legal counsel, no transcripts, and no practical route to appeal.
These issues echo earlier jurisprudence. In the 2017 Gwanda v State case, the High Court struck down vagrancy laws that criminalised poverty.
Mandala and Chisala-Tempelhoff argue that today’s monetary sanctions regime reproduces that same injustice by different means, replacing “status offences” with unaffordable fines that achieve the same discriminatory result.
A disconnect between law and oversight
The judiciary, for its part, maintains that oversight mechanisms exist.
Malawi Judiciary spokesperson Ruth Mputeni says that magistrates are subject to review through fine confirmations, record inspections and appeals. If the law is inadequate, she adds, the remedy lies with Parliament.
On the question of whether magistrates are sanctioned for failing to conduct means assessments, a key High Court requirement, Mputeni is cautious.
She emphasizes that courts follow the law as written, and that reform must come through legislative channels.
Asked whether jailing people for non-payment of fines violates constitutional protections, she declines to comment directly.
Instead, she encourages lawyers and members of the public to challenge such cases through the appeals process.
On data collection, Mputeni says courts do keep written records as required under Section 37 of the Courts Act.
But she acknowledges that prison statistics still fail to show how many people are jailed specifically for defaulting on fines, making national trends difficult to quantify.
She points to the expansion of the Legal Aid Bureau, from 3 to 22 offices since 2015, as a step forward. But admits that limited funding and capacity mean many poor defendants remain unrepresented.
International norms ignored
Internationally, Malawi’s approach places it at odds with its treaty obligations.
The African human rights system discourages criminalising poverty, and in 2020, the African Court on Human and Peoples’ Rights issued an advisory opinion declaring vagrancy laws incompatible with human rights standards.
The UN Special Rapporteur on Extreme Poverty has similarly condemned fining people who lack the means to pay, describing it as potentially “cruel, inhuman or degrading treatment.”
Though Malawi is a signatory to these instruments, Mandala and Chisala-Tempelhoff argue that the country continues to violate their spirit, particularly in the lower courts where judicial scrutiny is weakest and the punishment of poverty is most routine.
Reforms and the path forward
In April 2025, Parliament passed a new Prisons Bill aimed at reducing overcrowding through parole and capacity limits. The move was welcomed by rights advocates.
But the researchers warn that such reforms do little if the courts continue feeding the system with default imprisonment for unpaid fines.
They propose a suite of practical reforms:
- Mandatory, documented means assessments before any fine is imposed.
- Wider use of non-custodial alternatives such as community service, especially for minor or first-time offences.
- Fines scaled to income, including models that cap penalties at a percentage of earnings.
- Elimination of additive fees that inflate legal debts beyond repayment.
- Stronger investment in legal aid and standardised court record-keeping to track when imprisonment results from non-payment.
Without such measures, they argue, the price of justice in Malawi will remain unevenly distributed, an inconvenience for the wealthy, a jail sentence for the poor.
EDITOR’S NOTE: This article is based primarily on the legal research of Chikondi Mandala and Sarai Chisala-Tempelhoff, published in the Modern Criminal Law Review. The case law, statutory analysis, and constitutional arguments presented here are drawn from their study. CIJM’s original reporting includes interviews with judiciary officials and current prison statistics.
