It is improper to detain children at the prisons before or after a finding of liability against them.
July 4, 2018
Republic and Children in Detention at Bvumbwe and Kachere Prisons
High Court of Malawi
Review Case No. 21 of 2017
SA Kalembera, J
June 5, 2018
Reported by Linda Awuor and Wanjiru Njihia
Constitutional Law-human rights-arrest, detention and fair trial-children-rights of arrested and detained children- whether children could be committed to prison under warrants of Commitment-Constitution of the Republic of Malawi, section 42 (2)(g)
Criminal Procedure-children-detention of children-children suspected to have committed offences-detention before a finding against a child-restriction on detention before a finding against a child-whether a child could be detained or remanded before a finding of responsibility of commission of an offence contrary to section 95 of the Child Care, Protection and Justice Act and sections 250 and 267 of the Criminal Procedure and Evidence Code-Child Care, Protection and Justice Act, section 95, Criminal Procedure and Evidence Code, sections 250 and 267.
Criminal Procedure-children-committal of children- whether children could be committed to prison under warrants of commitment- Criminal Procedure and Evidence Code, section 329
The matter concerned children who for various reasons had been detained at Bvumbwe and Kachere prisons (the prisons). Some were on remand while others were serving sentences of varying durations. Being dissatisfied with orders detaining them at the prisons, they moved the Court to review the propriety of the orders detaining them at the prisons.
The grounds for review were on the propriety of the orders detaining them at the prisons before a finding against them; propriety of the orders committing them at the Prisons before a finding of liability; propriety of 2nd and 3rd Grade Magistrate Courts assuming jurisdiction over cases of children in conflict with the law; propriety of orders remanding children under section 250 and 265 of the Criminal Procedure &Evidence Code (CP &EC); and propriety of using warrants of Commitment under sections 329 of the Criminal Procedure and Evidence Code in cases involving children.
i. Whether a child could be detained or remanded before a finding of responsibility of commission of an offence
ii. What was the proper place to detain a child?
iii. Whether any professional Magistrate could preside over a child justice Court.
iv. Whether children could be committed to prison under warrants of commitment.
Relevant provisions of Law
Constitution of the Republic of Malawi
Section 42 (2) (g)-Arrest, detention and fair trial
42(2)- Every person arrested for, or accused of, the alleged commission of an offence shall in addition to the rights which he or she has as a detained person have the right-
(g) in addition, if that person is a person under the age of eighteen years, to treatment consistent with the special needs of children, which shall include the right-
i. not to be sentenced to life imprisonment without possibility of release;
ii. to be imprisoned only as a last resort and for the shortest period of time consistent with justice and protection of the public;
iii. to be separated from adults when imprisoned, unless it is to be considered to be in his or her best interest not to do so, and to maintain contact with his or her family through correspondence and visits;
iv. to be treated in a manner consistent with the promotion of his or her sense of dignity and worth, which reinforces respect for the rights and freedoms of others;
v. to be treated in a manner which takes into account his or her age and the desirability of promoting his or her reintegration into society to assume a constructive role;
vi. to be dealt with in a form of legal proceedings that reflects the vulnerability of children while fully respecting human rights and legal safeguards.
The Child Care, Protection and Justice Act (the Act)
S.140-Restrictions on punishment of children
140-No child shall be imprisoned for any offence.
safety home means a place or part thereof for the purposes of reception, education, counseling and safety of children before conclusion of trial or in circumstances requiring placement of a child tor care and protection.
reformatory centre means a home or institution or part thereof established for the purposes of a) reception, education and vocational training; and b) counselling of children in accordance with this Act.
S.95- Restriction on detention before a finding against a child
95) (1) No child shall be detained before a finding against him/her unless the Director of Public Prosecutions, in writing or upon hearing, satisfies the inquiry magistrate or court that the prosecutor wishes to charge the child with a serious offence in respect of which there is sufficient evidence to prosecute; b) it is necessary in the interest of such child to remove him from undesirable circumstance; or c) the prosecutor has reason to believe that the release of such child would defeat the ends of justice.
Section 133-composition of child justice Court
133) (1) A child justice court shall be presided over by a professional magistrate or a magistrate of the first grade. (2) The Chief Justice, having been satisfied as to the competence of the presiding officer, may designate a court of magistrates of any grade to be a child justice court and shall publish a notice of the designation in the Gazette.
- The best interest of the child and more so of those children in conflict with the law, had to be upheld and protected at all times. The Child Care, Protection and Justice Act (the Act) was enacted as an Act to consolidate the law relating to children by making provision for child care and protection and for child justice; and for matters of social development of the child and for connected purposes. It upheld the best interests of the child at all times.
- Only in circumstances provided under section 95 of the Act could a child be detained before a finding of responsibility of commission of an offence. Where a decision had been made to detain a child before a finding against him, he had to be detained in a safety home. In exceptional circumstances and on application to the inquiry magistrate by the prosecutor, the child could be detained in a reformatory Centre. As per the schedule to the prisons Act (Cap 9:02) of the Laws of Malawi, Bvumbwe and Kachere were prisons. It was very clear that a child could not be detained in prison. Even where a finding of responsibility had been made against a child, such child could not be detained in prison.
- A safety home and a reformatory centre were not prisons. If the law required that children be remanded or imprisoned in a prison it would have specifically provided as such. It was therefore improper and illegal to detain or remand a child in a prison or to imprison a child for any offence.
- Any magistrate of a grade lower than that of a professional magistrate; lower than Senior Resident Magistrate, and lower than that of a First Grade, Second and Third Grade Magistrates Magistrate could not preside over a child justice Court, unless so designated through a notice published in the Gazette, by the Chief Justice. Where the said Second and Third Grade Magistrates purportedly presided over child justice Courts, and purportedly made orders, those orders were a nullity and ought to have been set aside.
- Where a decision had been made to detain a child before a finding on him, he had to be detained in a safety home. Thus the use of sections 250 and 267 of the CP&EC were inappropriate. Children could not be committed to prison under warrants of commitment under section 329 of the CP&EC, or be committed to prison at all. That was so because a child could never be convicted of any offence, and warrants under section 329 of the CP &EC used the words –convicted and sentence.
- Section 86 of the Act, the words finding of guilty, conviction and sentence could not be used in respect of any child in proceedings in a child justice court or any other court, but in pronouncing the conviction against the child, the Court could not record that the child was found to be responsible for the offence charged, and instead of sentencing the child, it could proceed to make an order upon such finding in accordance with the Act. A reformatory order could be made under section 146(1) (h) of the Act in that regard. The 7th schedule provided a template of such an order.
- With reference to the children’s prayers, it was found that;
i. It was improper to detain children at the prisons before a finding against them as the two institutions were not safety homes.
ii. It was improper to detain children at the prisons after a finding of liability against them as the two institutions were not reformatory centres.
iii. Second and Third Grade Magistrates had no jurisdiction over child justice courts unless so designated by the Chief Justice through a notice published in the Gazette
iv. It was improper to use remand warrants under sections 250 and 265 of the Criminal Procedure and Evidence Code.
v. It was improper to use warrants of commitment under section 329 of the Criminal Procedure and Evidence Code in cases involving children.
i. All the children that were detained at Kachere and Bvumbwe Prisons pending trail, and courts had not yet made any finding of liability against them, had to be transferred to safety homes within 30 days after service of the order.
ii. All children that were at Kachere and Bvumbwe Prisons and a finding of liability had been made against them, had to, within 30 days after service of the order, be transferred to reformatory centres.
iii. All magistrates of grades lower than the First Grade Magistrate could not preside over child justice courts unless so designated by the Chief Justice through a notice published in the Gazette.
iv. All orders made by Second and Third Grade Magistrates against children, without being so designated by the Chief Justice through a notice published in the Gazette, were null and void and were set aside. All children affected by the order had to be retried before a properly constituted child justice court within 30 days after service of the order.
Relevance to The Kenyan Situation
The Kenyan laws also provide for the best interests of a child as follows:
The Constitution of Kenya,2010at article 53 (1) (f) of the Constitution provides that every child has the right not to be detained except as a measure of last resort and then the child may be detained only for the shortest appropriate period of time. If detained, child offenders have the right to be kept separate from adult prisoners and to be treated and accommodated in conditions that take account of the child’s age.
The Constitution is the supreme law of the land and it creates a fundamental framework within which the respective ambits of the legislative, executive and judicial arms of the State are defined. It is not exhaustive in its own terms and, consequently, a generous and purposive interpretation of the Constitution has to be adopted in order to give effect to its underlying values.
The Convention on the Rights of the Child 1989 which Kenya has ratified makes clear that if the detention of children is necessary in order to achieve a particular aim, then the length of detention should be the shortest appropriate period for the achievement of that aim.
Children Act at section 4 on survival and best interest of a child provides at subsection
(1) that Every child is to have an inherent right to life and it is the responsibility of the Government and the family to ensure the survival and development of the child.
(2) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
(3) All judicial and administrative institutions, and all persons acting in the name of these institutions, where they are exercising any powers conferred by this Act shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to— (a) safeguard and promote the rights and welfare of the child;
(b) conserve and promote the welfare of the child;
(c) secure for the child such guidance and correction as is necessary for the welfare of the child and in the public interest.
Section 50 gives the minister the power to establish children’s remand homes as he considers necessary.
Section 190 provides at sub-section 1 that no child should be ordered to imprisonment or to be placed in a detention camp.
The Court held that sentencing of children was a Constitutional matter of great concern and import for the criminal justice system, beyond and above the interest of a specific applicant. Children’s rights were of the utmost importance in the society. Courts were required to distinguish between children and adult offenders when sentencing and children had to enjoy preferential sentencing treatment.
The trial Court ordered that the second to the seventh petitioners had been imprisoned for an indefinite and or an undetermined period of time at the pleasure of the president, thereby vesting into the executive judicial powers to determine the duration of their sentences contrary to the Constitutional provision of separation of powers, their imprisonment at the presidents pleasure was unlawful to the extent that it violated the concept of separation of powers and the principles of Constitutionalism under the repealed Constitution and the Constitution of Kenya, 2010. They were therefore to be released from prison unless otherwise lawfully held.
The Appellant was aged 14 years when he was being sentenced to life imprisonment after a conviction of defilement.
The instant Court held that section 8(7) of the Sexual Offences Act and sections 190 and 191 of the Children Act prohibited the making of an order of imprisonment or detention of a child.
The Appellant’s appeal against sentence succeeded, his appeal allowed and the sentence imposed by the trial Court was consequently set aside.
The Appellant was to be released into the custody of the Eldoret GK remand prison awaiting the probation officers report and for orders on sentencing.
The holding of the High Court of Malawi is similar and in tandem with the laws of Kenya especially the Constitution, the Children Act and a number of case laws.
As it has been held, children’s best interest is paramount.