Currently, children are in detention at Bvumbwe and Kachere Prisons either on remand or for serving sentences. This is against the Constitution and the Child Care, Protection and Justice Act. Therefore, on May 3rd of 2018, the High Court of Malawi heard an application seeking for it to review the propriety of the orders for detention of the children. A final judgment has been made on the matter by the Hon. Justice Mr S.A. Kalembera of the High Court of Malawi on the 5th of June 2018.
The application was argued by Fostino Maele and supported by numerous civil society organisations including Center for Human Rights Education Advice and Assistance (CHREAA) and the Southern Africa Litigation Centre (SALC). In fact, the High Court reviewed criminal proceedings from the lower courts and itemised the position of the law with the result that a child […] shall not be detained in prison.
More detailed, the High Court of Malawi ruled that it is indeed improper to detain children at prisons before or after a finding against them because [Bvumbwe and Kachere Prison] are no safety homes or reformatory centres. Furthermore, Second and Third Grade Magistrates usually have no jurisdiction over child justice courts unless they have been designated by the Chief Justice. Lastly, the High Court of Malawi ruled that it is improper to use remand warrants under section 250 and 265 and warrants of commitment under section 329 of the Criminal Procedure and Evidence Code in cases involving children because the Child Care, Protection and Justice Act provides otherwise.
Eventually, the High Court of Malawi gave the following instructions:
- All children that are detained in Kachere and Bvumbwe Prions pending trial […] shall be transferred to safety homes within 30 days
- Children against who a finding has been made shall be transferred to reformatory centres within 30 days
- Magistrates of grades lower than the First Grade Magistrate must not preside over child justice courts […]
- All orders made by Second and Third Grade Magistrates against children without being designated by the Chief Justice […] are null and void and are set aside and all children affected by these orders must be retried before a properly constituted child justice court within 30 days
This is a remarkable breakthrough and very much in the interest of the children as the prison conditions violate the children’s right to dignity and to be protected from cruel, inhumane and degrading treatment and punishment. Being transferred to safety homes and reformatory centres suitable for children will help serving their special needs and become productive members of society again.
CHREAA 