Child welfare authorities are taking measures to uphold a 30 days court order to free tens of local children from unlawful detention.
Two months ago, Capital FM carried a report detailing the swelling numbers of child detainees in police custodies across the country in breach of the law that protects under-18s from such incarceration.
In the report aired on 9 June 2021, civil rights activists pressed the government to provide safe spaces for children in conflict with the law as well as survivors of sex abuse.
On 30 July 2021, the High Court in Blantyre delivered a judgment that rendered unlawful, all detention of children in police custody.
It followed a petition by the Centre for Human Rights Education, Advice and Assistance (CHREAA) and the Southern Africa Litigation Centre (SALC) after observing increasing trends of such detentions.
The two organizations were actually acting on behalf of 8 children who were remanded at Limbe Police Station for various offences.
In his ruling, Justice John Chirwa did not only assert that the children’s detention in police custody was unlawful, but further ordered their immediate release.
The Judge also agreed with the applicants that the detention of the children interfered with their health as well as their physical, psychological and emotional growth and development.
All this is contrary to section 23 of the Constitution and Article 3 of the Convention of the Rights of the Child.
Judge Chirwa further noted that the lower court did not inspect or have knowledge of the environment that it was remanding the children, including whether it had adequate provision of recreation facilities.
As is the case elsewhere across the country, children at Limbe police station are often detained on offences such as theft, burglary, and in extreme cases; defilement and murder.
With the courts determination, it now means that all children in conflict with the law ought to be kept in safe homes to await either trial or judgment.
CHREAA Executive Director, Victor Mhango explains that young offenders who are not matured in terms of age and reason and for this reason they are supposed to be kept away from adults.
Regarding the High Court’s determination, Mhango believes that it gives Malawian children hope and assurance that they would always be in safe spaces even when they are in conflict with the law.
“We are very happy to see that they are movements from the government to comply with the court order, we are here to make sure that the judgment is upheld,’’ adds Mhango.
In a separate case back in 2018, the High Court ordered the transfer of all child detainees at Kachere and Bvumbwe prisons to be transferred and await trial at safe homes within a 30-day period.
It further ordered that any children found liable by a competent court should be transferred to safe homes within 30 days.
While the authorities failed to comply with the court’s judgment then, this time around they seem to have hit the ground running amid another 30-day court order.
Nevertheless, Desmond Mhango of the Centre for Youth and Children’s Affairs remains skeptical on whether the present order will be met.
“What child rights activists are looking for is that the government creates the homes for children as the issue is long overdue,” Mhango emphasized.
He has further explained that the government should not make excuses as it has a lot of idle facilities that it can turn into safe homes.
While insisting that strides are being made to comply with the court’s determination, the Deputy Director of Social Welfare in the Ministry of Gender, Enock Bonongwe, is however not certain if they would be able to meet the deadline considering that the process has to undergo approvals.
“Whenever there’s a need for us to ask for additional time that we are going to communicate, but I guess with the steps that we have taken, even though we would not have designated the homes by that time the courts set, the court is going to assess what steps we have taken in complying with the order,” explained Bonongwe.
The Youth Net and Counseling, which runs 4 private safe homes for women and children, is tipping the authorities to spare enough resources for the initiative as running such homes is expensive.
YONECO’s Executive Director, Macbain Mkandawire, points out that the government should continue engaging NGOs over the matter for it to be a success.
Mkandawire adds that the government is struggling to put on the table the Child justice system which was meant to cater for such issues and is dysfunctional at the moment due to a lack of resources.
Whereas security and law enforcement authorities effect arrests on children suspected to have broken the law, failure by the ministry of gender to abide by the court order, would certainly place it in conflict with the law.
It is therefore critical that the authorities should ensure that children’s rights are safeguarded.