By Wezzie Gausi:
Like an overweight snail, cases involving children in conflict with the law have been taking painfully long to see the light of day in the country’s courts.
Court users describe children in conflict with the law as young ones who have contravened provisions of the law, particularly criminal law.
Like in all court cases, they remain suspects until after proven to have committed an offence by a competent court of law.
In order to arrive at that conclusion, the justice system uses procedures laid down in the Child Care, Protection and Justice Act of 2010, short-termed CCPJA.
The concerns come at a time the nation is still waiting for the outcome of a case involving a 15-year-old boy who was charged with an offence of defilement for having a sexual relationship with a 13-year-old girl.
The case is set to be heard by a panel of three High Court judges sitting as a Constitutional Court.
However, there is no fixed date, keeping stakeholders in the dark as regards when the court will give its verdict on the matter.
Centre for Youth and Children’s Affairs Executive Director, Desmond Nyuma Mhango, bemoans the delays.
He says delays to deliver justice in children’s cases start a long way.
Nyuma says experience has shown that the delays occur at Malawi Police Service (MPS) and child justice court levels.
“At police posts or stations, children are kept in police holding cells for more than 48 hours, despite that the laws indicate that 48 hours is the maximum time.
“Unfortunately, they are mixed up with adults on the ground that the MPS does not have separate holding cells for children in conflict with the law.
“It should be remembered that, at this point, the child is merely a suspect of criminal misconduct,” he said.
Centre for Human Rights Education, Advice and Assistance Executive Director, Victor Mhango, believes that cases involving children take a long time because there are no deliberate systems that ensure speedy trial.
He said the child system is not well equipped despite having sound legislation meant for child protection.
“We do not have an effective child social welfare system that ensures that children-related matters are handled with speed. Most of child cases are fit for diversion but we have not put in place enough mechanisms to ensure that children are diverted from the formal justice system quickly.
“We overload the criminal justice system with petty offences which can easily be diverted, especially where children are concerned. Some of the cases that go to trial and get stuck in the formal justice system should be dealt with by other means and not criminalisation,” Mhango said.
Mhango cites the criminalisation of adolescents for consensual non-exploitative sexual relationships.
“These children engage in normal developmental sexual activity without one exploiting the other but you will see boys being exposed to the criminal justice system, which is not in the best interests of the child. Children should, as much as possible, be protected from the criminal justice system and the focus should be on rehabilitation through social support,” he points out.
Centre for Human Rights and Rehabilitation Executive Director Michael Kaiyatsa echoes the sentiments.
He says Malawi has not taken into consideration the effects of human growth and development, considering that adolescence is a time of transition between childhood and adulthood.
Kaiyatsa says there is a need to revisit the law so that boys that have sex with girls of the same age group should be protected.
“When it comes to sexual offences amongst adolescents, the Penal Code must be revisited in the best interests of the boy child and the girl child, in the interests of avoidance of discrimination based on sex and gender and so that the law conforms to being of general application.
“The use of such words as ‘canal knowledge’ and ‘penetration’ is forcing the legal system to prosecute boys on defilement or rape offenses. Even where a boy child has, under duress, had sex with an adult woman, the boy child or a minor is reprimanded by law which frees the woman. Revision of these legal terms is necessary action on demand and must be granted the urgency it deserves,” Kaiyatsa explains.
Director of Public Prosecutions Steven Kayuni says the organisations have raised a legitimate concern.
He indicates that they have made clear presentations to the Legal Affairs Committee of Parliament and made an undertaking to seriously and urgently consider this issue.
“There are penal reforms that have been proposed and the honourable Minister of Justice is giving them due consideration. We hope an amendment to the legal framework can avert the situation. In a nutshell it’s being given urgent and due consideration,” Kayuni stresses.
Malawi ratified the United Nations Convention on the Rights of the Child (UN CRC) and the African Charter on the Rights and Welfare of the Child under the African Union (AU) ACERWC).
This means Malawi has domesticated the UN CRC and the AU ACEWC by capturing expressions and making direct references to instruments of human rights pertaining to children in the Constitution of the Republic of Malawi and the CCPJA.
Progressively, Malawi has gone on to develop policies in support of enforcement of legislations governing administration of child justice in Malawi.
The hope is that, by and by, cases involving children will be speedily tried in the courts while those that do not warrant the court’s attention thrown out just as quickly.