The Malawi high court on 6th June ordered the removal of children from Bvumbwe and Kachere young offenders prisons a move civil society organisations fighting for children rights describe as 'significant' on the fate of children in conflict with the law in Malawi. They will be transferred to safety or reformatory homes depending on the offenses committed.
The case was brought by civil society organisations who were concerned that the conditions in the two ‘prisons were deplorable and ‘not in the best interests of the children.’
The children were detained and waiting trials or serving sentences at the two prisons even though the facilities were not formally designated as safety homes or reformatory centres.
“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 (CHREAA), one of the organisations that brought the case before the court.
The Child Care, Protection and Justice Act has been in place since 2010, yet some of its most critical provisions around child justice were not consistently implemented, according to Mhango.
Justice Kalembera who delivered the judgment further said it’s illegal to detain or remand a child in a prison and that all children in conflict with the law should be brought before designated Child Justice Centres and not ordinary magistrates as the laws of Malawi stipulates.
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.
It further noted that Bvumbwe prison’s cells were poorly ventilated and toilets inside cells were without running water. In contrast, the Mpemba Reformatory Centre in Blantyre, for example, housed only 25 children, a facility that can accommodate as much as 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.
Legal practitioner, Fostino Maele, argued the case on behalf of civil society organisations which included the Centre for Human Rights Education, Advice and Assistance, Youth Watch Society and the Southern Africa Litigation Centre.