IN a “remarkable breakthrough”, the Malawi high court has come to the rescue of children unlawfully held in adult prisons. Some of the children were imprisoned in a jail where, according to an official 2016 parliamentary report, no food was available to inmates and where blankets were in short supply. Both the Constitution and statue say that children in trouble with the law may only be held in special places of safety or reformatories, and the high court has now ordered the authorities to move the children within 30 days.

WHEN one of Malawi’s best-known judges, and someone particularly passionate about the needs of children, Fiona Mwale, addressed dignitaries at the opening of the Child Justice Court in Lilongwe 18 months ago, she raised an issue close to her heart: deep concern about the number of children detained in adult prisons rather than in specialised homes for youngsters in conflict with the law.

The law in Malawi is clear and provides that no child – meaning no-one under 18 – shall be detained in a prison, neither while awaiting trial nor even after conviction. Instead, they must be kept in a place of safety or a reformatory. But despite these provisions the number of children in adult prisons has continued to mount, much to the concern of Mwale, her judicial colleagues and others involved in child justice issues.

It has taken a year and a half since the issue was raised at that official court opening, but this week saw a giant leap towards correcting the problem of children unlawfully held in adult prisons.

In what one civil rights organization described as a remarkable breakthrough, Judge Sylvester Kalembera sitting in the high court, Blantyre, has now confirmed the illegality of holding any child in prison. The case before him was supported by a group of civil rights organizations, and was brought on behalf of a number of children held in adult prisons. In his judgment, he stressed that the law “upholds the best interests of the child at all times” and that this had to be the basis of how children were treated. The children who brought the application had asked the court to order that their detention in adult prisons be declared unlawful and that they be moved to places of safety or reformatories.

The judge, who described this as a “unique case” because of the involvement of the children, also noted another unusual feature: the state was in “full agreement” with the argument advanced on behalf of the petitioners, in this case children held at Bvumbwe and Kachere prisons.

Reviewing the law on children and justice, he pointed out that no child was to be imprisoned for any offence but was instead to be housed at a reformatory or a “safety home”. It was thus “improper and illegal to remand a child in a prison or to imprison a child for any offence”.

The law also stipulated that only certain magistrates were allowed to preside over cases involving children, and orders made in cases where the magistrate was not properly designated, were thus null and void.

Among others, the judge ordered that all children in the two adult prisons were to be transferred to safety homes (if awaiting trial) or to reformatory centres (if a valid finding of liability had already been made against them) within 30 days. All orders made by magistrates not designated to handle matters in a child justice court were declared a nullity and the children affected were to be retried by a properly assigned judicial officer, also within 30 days.

His far-reaching orders in this case will obviously have an impact on the way all children in Malawi are dealt with by the law in future and have been welcomed by organisations involved in child justice and civil rights matters.

One of the organsiations that supported the application, the Southern African Litigation Centre, commented afterwards that the case was based on provisions in Malawi’s constitution for children in conflict with the law to be imprisoned only as a last resort, for them to be separated from adults and to be treated in a way consistent with their right to dignity.

The SALC also quoted a 2016 report to parliament by Malawi’s inspectorate of prisons. Commenting on the two adult jails where the children involved in the case are being imprisoned, the report noted one of them was “a health disaster in waiting”. There was a shortage of blankets and the inmates received no food. In the second prison, the cell toilets were poorly ventilated and had no running water. By comparison, one of the country’s reformatories, in Blantyre, houses just 25 children in a facility that could accommodate 150 youngsters.

Another of the organisations behind the case the Centre for Human Rights Education, Advice and Assistance, called the judgment a “remarkable breakthrough”. The order that the youngsters be transferred out of adult prisons to safety homes and reformatory centres suitable for children would serve their needs and help them become “productive members of society again,” the organization said.

Malawi Child Care, Protection and Justice Act

Malawi Constitution

First published by the Judicial Institute for Africa (Jifa) on 7 June 2018 at