Malawi High Court outlaws children imprisonment

The Malawi High Court, per Justice Silvester  Kalembera, on Tuesday delivered a judgment which will have a significant impact on the fate of children in conflict with the law in Malawi.

The case was brought by civil society organisations who are concerned that the conditions in Bvumbwe and Kachere prisons are deplorable and not in the best interests of children who are in conflict with the law. 

Currently a number of children are detained awaiting trial or serving sentences at Bvumbwe and Kachere prisons even though these facilities are not formally designated as safety homes or reformatory centres.

 The Inspectorate of Prisons, in its 2016 report to Parliament, noted that Kachere prison “is a health disaster in waiting”.

The report noted several concerns including a severe shortage of food including days where inmates receive no food, the risk of disease outbreak, the risk of the building collapsing, and a shortage of blankets. Regarding Bvumbwe prison, the Inspectorate of Prisons’ report noted that cells were poorly ventilated and toilets inside cells were without running water. In contrast, the Mpemba Reformatory Centre in Blantyre, for example, houses only 25 children in a facility that can accommodate 150 children.

The application and judgment was premised on the constitutional provision which says that children in conflict with the law should be imprisoned only as last resort, should be separated from adults, and should be treated in a manner that is consistent with their dignity and best interests.

The Child Care, Protection and Justice Act of 2010 further provides that only in exceptional circumstances should a child be detained before a finding of responsibility for commission of an offence.

Under exceptional circumstances a child can be detained in a safety home or reformatory centre.

The Act further clearly states that no child shall be imprisoned for any offence.

The court accordingly affirmed that it was illegal to detain or remand a child in a prison or to imprison a child for any offence. The law further specifically provides that children in conflict with the law should be brought before designated Child Justice Centres and not ordinary magistrates’ courts.

The court ordered that all children detained at Kachere and Bvumbwe prisons pending trial should be transferred to safety homes within 30 days.

It further ordered that those children that were found liable by a competent court should be transferred to a reformatory home within 30 days. The court also ordered that all magistrates of grades lower than the first grade magistrate must not preside over child justice courts unless so designated by the Chief Justice through a notice published in the Gazette. Lastly, the court declared null and void and set aside all orders made by second and third grade magistrates against the children, without being so designated by the Chief justice through a notice published in the Gazette and ordered that the children should be retried before a properly constituted child justice court within 30 days.

“The Child Care, Protection and Justice Act has been in place since 2010, yet some of its most critical provisions around child justice are not consistently implemented. It is encouraging that the court has taken a stand to declare that the failure to follow the Act’s provisions is unlawful,” said Victor Mhango, Executive Director of the Centre for Human Rights Education, Advice and Assistance.

The application was argued by Fostino Maele and supported by a number of civil society organisations including the Centre for Human Rights Education, Advice and Assistance, Youth Watch Society and the Southern Africa Litigation Centre.

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