Currently in Malawi the law states, under the 1969 Children and Young Persons Act, that those under the age of 18 should not be sent to adult prisons. However, for a long time courts and police have been sending children to prison as an easy option. Some children have been detained over long periods, in often-overcrowded prisons where they are at risk of abuse, are deprived of education, and have little chance of growing into well-rounded adults (particularly if they are pre-trial detainees who generally don’t get educated until they are sentenced). Children are allowed to be detained in the country's reformatory centres, but for a maximum of six months, and only as a last resort or if the child is especially likely to re-offend. Of the two reformatory centres, Mpemba boys' home can accommodate 370 children, and Chilwa 120.
In the past, however, the reformatory centers have been underused. In 1999, when Malawi’s two reformatories were capable of holding 210 children, only 60 out of 1770 children held within the country’s penal system were in reformatories. Children were routinely being tried in adult courts (often without proper consideration of social workers' reports), given custodial sentences and then held in adult prisons. However in 2002 DFID, together with Malawi's government and UNICEF started working to improve justice for young people through the National Juvenile Justice Forum (NJJF). The NJJF was established to work with children who have been in trouble with the law, as well as children who belong to poor and vulnerable groups within society.
In addition pilot projects have spurted up around the country. In Blantyre the Child Justice Court was established in 2005 to handle cases involving child offenders. The court is still largely guided by the Children and Young Persons Act. The Act, however, is outdated and contradicts the Bill of Rights provided in the Constitution. In addition, it does not conform to the UN Convention on the Rights of the Child. For example, the Act focuses more on punishing child offenders than on reforming and rehabilitating them. Malawi ratified the Convention on theRights of the Child (CRC) in 1991and the Convention on the Elimination ofDiscrimination against Women (CEDAW) in 1987. There is also no reference to the root causes of offending behaviour such as poverty and orphanhood, and social interventions to deal with it (17.4% of Malawian children are not living with a biological parent and there are approximately 7.3m children under 18 living in the country). The Court is presided over by a dynamic magistrate called Mrs. Esmie Tembenu, a passionate defender of child rights and a resolute believer in the rehabilitation of child offenders who has said:
“When child offenders are brought before me, my first instinct is to look out for their best interests,” she says. “Sometimes they will have spent several nights in police custody without food and appear before me weak, hungry, and traumatised. I have to use my own money to buy them food before commencing proceedings.”
In 2010 the Malawian Parliament passed a new piece of legislation which deals with this area called the Child (Care, Protection and Justice) Act, which was tabled by the then Gender, Women and Child welfare Minister. The Malawi Law Commission developed the Child (Care, Protection and Justice) Bill in 2006, with support from UNICEF. The Bill is an innovative legislation that puts together all issues of child protection and justice into one law. In general the Act outlines responsibilities and roles of parents on how to raise their children in their respective homes, addresses issues of child abduction, trafficking, harmful cultural practices, and it recognizes principles that are in the best interest of children.
The Act recognises and places importance on the principle of the best interests of the child in respect of juvenile justice. It also provides clear guidelines on the arrest of a child, trying to ensure that it is not a traumatic experience and takes into consideration a child's best interests. It introduces procedures following the arrest of a child. These include:
· Preliminary inquiry, which determines whether the offence a child has committed should be dealt with by the criminal justice system or not. (Given the length of time a person can spend in pre-trial detention, this provision is very important)
· Criminal responsibility: establishes the age of a child to determine whether they can be held criminally responsible for their actions (the age of criminal responsibility in Malawi is 10 years).
· Diversion: where the offense is not serious and a child voluntarily admits responsibility, a child can be diverted away from the criminal justice system (something which we are specifically working on).
· Legal representation: a child in conflict with the law has the right to be protected within the criminal justice system through legal representation (financially I’m not sure how this provision will be met).
· Child justice courts: children's cases are to be presided in private by specially trained legal and judicial officers.
· Children in custody: children cannot be detained in police stations or with adult offenders but in specially created 'safety homes'. After trial, children should be taken to reformatory schools for rehabilitation and eventual reintegration back into their communities. (Although very ambitious this is probably the most costly and least likely aspects of the Act to be implemented at any point soon)
However some politicians at the time of debate felt that the bill was too western because some provisions are in conflict with the country’s “economic and cultural realities” and in truth what we have seen on the ground is a completely stalling of the implementation of the Act due to numerous costly aspects to its provisions (as similarly seen in Ireland with the Children Act 2001 but with less drastic consequences) and so children are left in just as vulnerable position as before.