Children in Custody

Our project recently came across five children aged between 11 and 15 years old who had been held in police custody for three months. The boys had been sentenced to two reformatory institutions called Mpemba and Chilwa based in southern Malawi. There are currently only two reformatory centres in Malawi where male juveniles may be sent. Chilwa Approved School founded in 1947 and Mpemba Boys founded in1963. Both of these centers can be hundreds of kilometers away from the district in which the boys have been sentenced however, and as currently there is a severe lack transport (due to fuel shortages) there was no vehicle available to move the boys and so they waited……and waited.

In addition due to insufficient funds police are unable to provide food for the prisoners held in their custody. Prisoners must rely on family and friends to bring food to the police station. The five boys were either orphaned or their families were unable to visit. They often complained of being hungry and relied on the kindness of other prisoners or police officers for food. The police were very concerned at the length of time that the boys spent in the cells and were very anxious that transport be secured to bring the boys to Mpemba and Chilwa. IRLI has developed a very good working relationship with the police and for this reason was given access to the police cells to witness the problem. IRLI worked together with the police and local NGO’s and fortunately the children were recently transported to the reformatory institutions.

The Children’s and Young Person’s Act 1969 is currently the governing legislation for juvenile justice (hopefully soon to be replaced by the Child (Care, Protection and Justice) Act). Section 24 of this act provides for the establishment of a Board of Visitors. The Board is tasked with monitoring the reformatory institutions to ensure that they are operating in the best interests of the child. The Board also has the power to release a juvenile that is held at an institution. It is in this context that IRLI recently had the opportunity to work with the Board of Visitors whom we were able to contact when IRLI also became aware of a juvenile ordered to be detained in custody until there was a positive change in the his behaviour. After assessment a social welfare officer confirmed a positive change in behaviour in early 2010, yet the juvenile remained in custody when we came across him a few weeks ago. IRLI successfully highlighted this case to police prosecutors, a child justice magistrate and the Board of Visitors and by working together the juvenile was released earlier this week.

The Convention on the Rights of the Child (CRC) states at Article 37 (b) that custodial measures should be “measures of last resort.” In addition, Article 40 CRC and section 42(2) (g) (iv & v) of the Constitution both provide that a child in conflict with the law has a right to treatment, which promote the child’s sense of dignity and worth, which takes into account the age of the child, and which ultimately aims for reintegration into society. For the five boys held in police cells and the juvenile that spent over a year too long in detention it is clear that much work is needed to ensure that rights provided in both national and international law are enforced.

By Carolann Minnock, Programme Lawyer with the Malawi project.

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