The state of juvenile justice in Malawi

Adam Stapleton

Malawi shares with South Africa a rising crime rate. This has been attributed to the advent of multi-party rule one month after South Africa's own elections in 1994. However, it is as likely to have something to do with the forcible removal of the Malawi Young Pioneers by the army. The 5000-strong Malawi police force, poorly trained and ill-equipped must now fill the void in respect of the country's 11 million inhabitants.

Another disturbing trend has been the dramatic increase of the prison population, up by 55% from 4550 in 1994 to 7000 this year. The prisons are congested, dilapidated, unhygienic colonial structures. The extent of deterioration was highlighted in 1998 when Amnesty International made the plight of 180 young prisoners held in the juvenile section of Zomba Central Prison the subject of an international 'schools' action. Young men and children suffered from acute scabies, caused by overcrowding, poor hygiene and inadequate health care. This was exacerbated by an inadequate diet, and photographs showed scarred legs, emaciated bodies and young faces gazing vacantly at the camera.

A number of human rights NGO's in Malawi initiated a review of the legality of the detention of juveniles currently in prison. They examined the juvenile section of three prisons and interviewed 383 inmates. The initial findings revealed that 50% of the inmates were not juveniles (i.e. persons under 18), but young adults. Further findings are set out in this fact sheet:

Juvenile Justice In Malawi “Fact Sheet

Age of criminal responsibility is 7
A 'juvenile' offender is a person under 18
Almost 50% of the population is under 16
More than 50% of the juvenile in custody claim that one or both parents are dead
40% claim they were attending school at the time of arrest
63% claim they were beaten and/or subjected to abuse at arrest
35% of juveniles are in custody for serious offences (murder, burglary, rape and robbery)
Legal representation: 2% claimed that they had legal advice in two prisons, and 15% in another.
Remand Warrants: 89% of the warrants in one prison were invalid, and 72% in another (no data on the third)
Bail considered: This ranged from a high of 11% of cases in one prison, to a low 3% in the third

Conditions:

Separation from adults: Poorly supervised
Sexual abuse: well documented
Recreation: None
Education: nothing systematic
Health/ Sanitation: poor
Accommodation: congested, 'uninhabitable'
Family visits: None for 85% of inmates in one prison, 75% in another, and 71% in the third.
Social services visits: twice in six years in one prison
Approved schools (Chilwa and Mpemba) operating at 50% below capacity

What the table reveals is a common situation: legal systems unable to cope with case-loads and prison systems that lack the resources to keep prisoners in their care at even the minimum standards demanded by international law.

There has been little exposure to the groundbreaking work in the field of juvenile justice from countries like South Africa and Namibia. Thus, in November 1999, an international seminar was organised by PRI, and hosted by the Ministry of Justice, to review policy and practice in the juvenile justice system in Malawi, and to come up with concrete plans.

The seminar was a huge success: not only did consensus emerge for the need for transformation of juvenile justice in Malawi, but, in a short three days, a draft model for juvenile justice in Malawi was produced. Commitments from various stakeholders were secured: politicians pledged to bring the draft model to the attention of the Committee on Women and Children and Parliament, and to conduct frequent visits to the institutions for young offenders. Magistrates promised to relax the bail conditions for young offenders and monitor all juvenile cases from the first remand until completion. NGO's undertook to intensify their training programmes, to make the conventions relating to children's rights widely known, and to continue assisting the government in the reform process. Foreign participants promised to lend technical support whenever needed. Stakeholders undertook to form a multidisciplinary body the Justice Forum “to co-ordinate effective implementation of the recommendations, identify the resources required and the implications for various agencies.

The seminar has served as a launching pad for Malawi as she starts the bumpy road of reform. The international solidarity displayed by the eminent people who attended the seminar and generously offered their service will serve as a pillar of strength and guiding light in the long and tortuous reform process.

This feature: From Article 40, February 2000. Published with permission of the Children's Rights Project, Community Law Centre, University of the Western Cape.