Child trafficking, perpetuated by poverty, illiteracy, lack of awareness, lack of resources and weak policies, has become a growing concern in the state of Malawi.

Trafficking can take on many forms including labor exploitation, sexual exploitation, trafficking for organs, and exploitation through illegal activities, trafficking for adoption purposes and traffic related to early and forced marriages.

Regardless of which form it takes, child trafficking is considered by many to be a modern form of slavery.

It jeopardizes the education and development of children and fuels the vicious cycle of exploitation and poverty in the state of Malawi.

According to a report done by the University of Malawi’s Centre for Social Research, between 500 and 1,500 women and children are estimated to be victims of trafficking every year in Malawi.

Eye of the Child commissioned Millennium Centre for Research and Development (MCRD) to carry out a study on child trafficking in 2008.

According to this report, poverty, cheap labor and lack of parental support were thought to be the most prominent factors perpetuating child trafficking.

It was also discovered that 30% of victims are under the age of 13 while 70% are teenagers.

Despite the growing severity of the problem, Malawi, like other African countries, was lacking any strong legal structure to stop or punish offenders.

Of the 58 cases of child trafficking that were reported in this study, only 31% of the traffickers went to court. Of these 18 cases that were brought to court only 9 traffickers were convicted and sentenced. Clearly, reform was necessary.

A vague mention of child trafficking exists in the Child Care and Protection Act, however, this is the only reference to trafficking in Malawi legislation and it is too weak to truly protect children.

While it recognizes child trafficking as a punishable offense, the legislation provides no instruction on how to identify a victim and gives no protocol in regards to services that must be provided for victims.

Far from comprehensive, the law does little to address the growing problem of child trafficking.

Eye of the Child recognized this gap and knew policy change was needed if this practice was going to be eliminated.

However, when they approached the Minister about dedicating more government attention to combating this issue, his response was that there were not enough resources to create any new programs.

As a response, Eye of the Child founded the Malawi Network against Child Trafficking, or M-NACT, in 2007.

The goal was to create a unified front of stakeholders that would pool resources and work together to eliminate child trafficking.

Eye of the Child hoped that through the success of this network, they could eventually elicit federal support.

While M-NACT also focuses a large amount of energy on advocacy, like the rest of Eye of the Child, this particular program also relies on services that directly impact the lives of children.

The program focuses in six main areas: coordination, prevention and social mobilization, rescue, rehabilitation and reintegration, training and capacity building, and research and advocacy.

This six-pronged approach is not unique to child trafficking for it mirrors Eye of the Child’s model as a whole.

The organization builds awareness and mobilizes communities while simultaneously providing services for the victims and M-NACT is an illustrative example of this overarching philosophy on a smaller scale.

The first step in M-NACT’s plan to eliminate child trafficking involves coordination, partnership and monitoring.

Eye of the Child frequently works with other stakeholders in their projects and this becomes especially crucial in regards to the illegal transfer of children.

Child trafficking networks are complex and many cross borders so in order to effectively combat this it becomes imperative to expand and unite an even larger network of stakeholders.

Through M-NACT, Eye of the Child has allied themselves with Technical Working Group, Norwegian Church Aid, and Malawi Human Rights Commission, just to name a few. The different organizations convene annually for a meeting that discusses the most important issues at stake and to develop effective solutions for these issues. This collaboration is an important prerequisite to the network’s loftier goals.

M-NACT collects relevant information from all members, consolidates reports on annual activities and documents best practices.

Another important facet of M-NACT’s approach is prevention and social mobilization and an emphasis is given to both child participation and public education – two key components of Eye of the Child’s overall model. Here, a focus is given to the community and the goal is to build public awareness and organize the grassroots in a way that encourages participation from all the individuals with any level of local accountability.

Through M-NACT, Eye of the Child organized a series of youth open days, with the theme of child trafficking as well as held highway street sensitization campaigns.

The organization educates children in primary and secondary schools on the dangers of trafficking in addition to raising awareness among faith leaders.

This work on the community level is necessary if M-NACT wants any of their other efforts to have a lasting impact.

This emphasis is at the heart of Eye of the Child’s model and without building support and raising awareness the grassroots, the organization would have no framework from which to leverage its other efforts.

Once a solid foundation of collaboration and mobilization have been built, M-NACT needs to shift some of its focus onto building capacity within communities, and providing services that directly address issues of child trafficking.

This brings to light the third goal of M-NACT: Rescue, Rehabilitation and Reintegration. In a perfect world, the efforts of Eye of the Child and its partners will eventually eliminate child trafficking and strengthen communities in a way that overcomes this black-market phenomenon. However, Malawi is nowhere near that yet and Malawians need to be given the appropriate resources and services to cope.

They must be educated on how to access these services and empowered in a way that encourages them to seek help when needed.

Eye of the Child has become increasingly aware of families incapable or unwilling to employ help and aims to build up this capacity.

They have been conducting awareness campaigns on available facilities and trying to strengthen the level and breadth of services they provide for children.

Members of this network also engage in child rights monitoring, where they identify vulnerable children before they become victims. Members of M-NACT will identify a vulnerable child in an institution such as an orphanage and remove him/her from the unsafe environment.

Then, they will focus on empowering both the child and his/her community to eliminate temptations of returning to that unsafe environment. The child is reintegrated with his/her family and given the tools necessary to lead a life within their rights of health and safety.

These tools involve cash transfers, where the child’s family is provided sufficient funds for medical bills and food.

They are given packages containing school uniforms, supplies, blankets and fertilizer and farming tools, among other useful items.

The child is also supplied with vocational training and given life skills to promote eventual self-sufficiency.

Eye of the Child also provides family and community counseling sessions, through M-NACT, during the time the child is being reintegrated in his/her community. Then, follow-up and monitoring visits ensure difficulties don’t arise post-reintegration.

All of these services directly impact the lives of children. While Eye of the Child and M-NACT do not have the capacity to provide aid to every child in need, their goal is to act as an example for the government that should ultimately be responsible.

Eventually, these welfare services should be provided by the state of Malawi but in the meantime, M-NACT provides these rescue, rehabilitation and reintegration services to as many children as they are able to save.

Training and capacity building is yet another area of focus for M-NACT with the ultimate goal of developing the capacity, knowledge and skills of service providers in the fight against child trafficking.

Through these programs, individuals from many different levels of society receive both physical materials and education on how to best service victims of child trafficking.

Eye of the Child provides this type of training to police officers, immigration officers, magistrates, NGO staff, the media, faith institutions, community leaders and youth NGOs, with the hopes of building self-sufficient communities.

The more people that are given the tools to support the victims the more powerful community structures become in fighting the problem.

Research and advocacy is another important focus of M-NACT and just like for Eye of the Child as a whole, the emphasis on advocacy forms a bedrock for all other programs and activities.

M-NACT performs research to establish and update statistics on child trafficking.

It then uses this research to lobby for interventions and the enactment of policies and legislation against child trafficking in the state of Malawi.

In 2010, Eye of the Child coordinated a National survey for the Ministry of Gender, Child and Community Development to determine the magnitude and nature of child trafficking in Malawi as well as better document the current legal and policy framework in regards to the issue.

M-NACT then disseminates this research to stakeholders and organizes or attends stakeholder’s advocacy meetings.

A noteworthy example of one of these meetings was organized by Eye of the Child in 2010.

On November 30th, the organization invited stakeholders to an Annual General meeting where they discussed the trafficking of women and children before, after and during the FIFA 2010 World Cup.

At the end of the meeting delegates discussed action for law reform and development, training and capacity building, public education reforms and awareness, victim support, collaboration and future plans for research and advocacy.

M-NACT organizes many more meetings of this sort and uses research and advocacy to build support at the grassroots to change the way Malawi responds to child trafficking.

M-NACT has been successful in not only changing the way Malawians think about child trafficking but also in the way it has directly impacted children’s lives.

In total, 71 children have been rescued from child trafficking. Of these 71 cases, 3 were facing organ removal, 18 were able to escape child marriage, 12 were rescued from sexual abuse and the remaining children were rescued from child labor trafficking.

Eye of the Child hopes that the government will ultimately take responsibility for providing salvation to children like this.

With the creation of a network like M-NACT, EYC has proven to the government that a structure on the ground to combat trafficking is not only feasible, but also already in place. The organization has strategically included the Minister in all important M-NACT decisions and even made him the chair of the board.

This is consistent with their overall model of engaging beneficiaries at every step. He now has so much invested in the organization that he is in full support of its goals.

With his engagement, as well as countless other government officials that were also a part of the strategy, Eye of the Child has support within the government.

All the provisions and programs that have already been established through M-NACT are to be included in a bill that EYC will propose to Parliament.

The structure has already been implemented and internal government actors are in support of these structures.

The final step is concrete policy change and through the successful implementation of EYC’s bottom-up approach, this change is not far off.

In the meantime, the services directly provided through M-NACT are invaluable to victims of child trafficking and are slowly changing the status quo in Malawi.

Before Eye of the Child was even created, we recognized the lack of legislation protecting the rights of children and began advocating for the Malawi government to pass such laws. Once the organization was founded, we began a process of advocacy for this legislation, starting at the grassroots level.

Eventually, in 2010, Eye of the Child successfully pressured the Malawi government to pass the Child Protection Care Act as enabling legislation for the Bill of Rights, which had been added to the Constitution in 1994.

The passing of this act was a massive achievement for Eye of the Child and will continue to change the lives of millions of children.

This success could not have happened without the unique model of Eye of the Child, whose mobilization of its network of supporters in all areas of the country allowed for a groundswell of support that made the passage of legislation to support children’s rights inevitable.

Before the Child Protection Care Act, there was no functioning juvenile justice system and we recognized how dire the situation had become in Malawi. Malawi’s Penal Code allowed for a 10-year old to be charged with criminal responsibility and most of the time children were treated the same as adults, with no consideration of their age.

Most of these child offenders came from broken homes and oftentimes were victims of economic exploitation. In almost all cases, the child offenders were suffering from extreme poverty and thus more vulnerable to committing crimes.

When we began implementing our advocacy strategy for a juvenile justice system, the situation was becoming worse in Malawi. Crime rates were increasing and more and more children were being sent to prison.

Between 2003 and 2010, the crime rate increased 55% and prison environments were anything but humane.

Children were suffering from overcrowding, poor hygiene, poor healthcare and inadequate diet. 75% of crime is committed by young people and the root of their crimes can usually be traced to poverty, abuse, and lack of opportunity, all issues Eye of the Child programs try to address.

With crime on the rise and the situation of juvenile offenders bleak, Eye of the Child’s efforts to reform juvenile justice had become a necessary priority.

Aftermath of independence, rather than create an entirely new set of laws, Malawi adopted much of the legislation implemented by the British colonial government when it achieved independence in 1964.

Thus, there were clearly many gaps when it came to the rights of all Malawi citizens under the law, particularly children. Beginning in 1993, l began lobbying for the implementation of children’s rights in Malawi, culminating in the passage of the Child Protection Care Act in 2010.

The process by which Eye of the Child was able to successfully advocate for the passage of the Child Protection Care Act exemplifies how Eye of the Child’s model works.

Eye of the Child partnered with the Malawi Law Commission, which was eventually responsible for writing the Act, to conduct research on what a juvenile justice system would look like and how communities would receive it.

In order to make this collaboration between the government and the communities possible, Eye of the Child started by organizing at the grassroots level.

This was a prerequisite for conditioning the community in a way that forced the government to enact legislation.

The research taken up by the Law Commission and Eye of the Child exemplifies the strength of the Child Protection Community Committees that Eye of the Child created.

These committees were made up of parents from the community, traditional leaders, faith leaders, retired teachers, government officers and elders.

Eye of the Child leveraged these stakeholders to perform consultations with other parents, teachers, community leaders and children and a dialogue was created around the issue of child justice.

Advocacy is a primary component of Eye of the Child’s model and nothing can be achieved without first succeeded on this front.

The goal behind these conversations was to change peoples’ attitudes, promote awareness, restructure systems, and build capacity of stakeholders.

Two ways in which this grassroots organization and dialogue took concrete shape were in the formation of theater forums and soccer games.

During the organized theater forums, leaders would act out what the problems were and community participants would then respond by acting out possible solutions.

All levels of community members were asked to participate and children were given the opportunity to have their voices heard. The forums raised awareness and educated communities on the rights that should be given to all children.

Another innovative approach to fostering this discussion on juvenile justice was the organization of soccer games as a mediating ground.

Children were separated into teams and between each game a discussion would be held. This discussion would be focused on drawing parallels between the sport they were playing and a juvenile justice system.

The idea was to talk about the system in a way children could relate to and be in which they would be interested.

Public Education is an important aspect of Eye of the Child’s model and through these “Public Awareness Meetings,” communities were able to learn about justice and the rights children deserve under the law.

Juvenile justice was an entirely new concept to these communities and people needed to be introduced to these issues in a way they could relate to first-hand.

This allows for Child Participation by asking children how they feel and involving them in the process, thereby lending credibility to the research by bringing in the children’s perspective.

Participation is key to Eye of the Child’s model and the organization engaged all affected by the implementation of a child justice system.

Everyone from police officers to parents to any level of government or government official was welcome at the discussion, and children were introduced to their rights in metaphors relating to soccer.

The soccer games continued for 3 years and had wide reaching effects all over Malawi.

Eye of the Child documented these forums and games in order to demonstrate to Parliament that communities were ready for a child justice system and understood what the rights of children should look like.

They planted the seeds for the system and prepared the communities in a way that forced the government to respond.

In staying true to their model, beneficiaries were included at every step – the planning of the soccer games, the implementation and in proposing the bill to Parliament.

In 2010, the law commission presented the research to Parliament and the discussions held during these “Public Awareness Meetings” were written into law.

While Eye of the child organized these forums, they would not have been possible without the funding provided by Firelight Foundation and UNICEF.

This is just one instance where Eye of the Child engages in a strong alliance with other organizations that have the same overall mission.

With a fortified framework of stakeholders at a grassroots level, even more pressure is placed on the government to enact change.

The soccer games and theater forums highlight Eye of the Child’s approach to change and the bedrock of their philosophy towards advocacy.

By building a structure on the ground and educating communities in a way they can relate, the organization is able to leverage change in a meaningful and sustainable way.

It took from 1995 until 2010 for concrete policy to be implemented in regards to the child justice system, but without the years of research and community-based awareness building, there would have never been a convincing or valid argument compelling the government to act.

It is a process that starts at the core and gradually changes the entire system.

Advocacy is arguably Eye of the Child’s most important tool as an organization and it is this social mobilization from the grassroots that allows their impact to be so meaningful and lasting.

Soon after the enactment of the Child Care, Protection and Justice Act in 2010, the “Malawi Child Justice Case” concerns the rights of 16 – 18 year olds who come into conflict with the law where being dealt with through the adult criminal justice system from arrest and detention, to prosecution and eventual imprisonment in adult penitentiaries where applicable.

Between 2010 and 2015, hundreds of Children as young as 14 years ended up in Prisons.

The Child Care, Protection and Justice Act No. 22 of 2010 (the Act) 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 connected matters.

By s.2 of the Act a ‘child’ is a person below the age of 16 years. In addition to s.2 of the Act, s.23 of the Constitution of the Republic of Malawi (the Constitution) after enumerating a range of children’s rights also provides that for its purposes, children shall be persons under the age of sixteen years.

Notably among the rights protected under s.23 of the Constitution is the right to be protected from economic exploitation or any treatment, work or punishment that is, or is likely to: - (a) Be hazardous (b) Interfere with their education; or (c) Harmful to their physical, mental and spiritual or social development.

Thus to the extent that we noted that the Act defines a ‘child’ as a person under the age of 16 years, it is consistent with the age category to which the Constitution guarantees special rights for children.

It is on the basis of the foregoing legal position that persons aged between 16 and below 18 years are trailed through the adult criminal justice system.

Our major concern was that, the effect of legally defining a child as a person under the age of 16 years is that persons aged 16 and below 18 years are deprived of all the rights that accrue to persons of the same age range under international human rights treaties to which Malawi is a party.

More importantly, we where concern that state introduced a law deprived the right to be protected from punishment that is hazardous, interferes with their education, and harmful to their physical, mental and spiritual or social development and the right to special treatment in a manner consistent with the child's sense of dignity and worth for all persons between 16 to 18 years.

At that time we where mindful of two notable instruments: the African Charter on the Rights and Welfare of the Child (ACRWC) which without according states any margin of appreciation defines a child as any human being below the age of 18 years; and the Convention on the Rights of the Child which defines a child as a person below the age of 18 years unless majority is attained earlier under any applicable law.

We where also mindful that, section 23(5) of the Constitution read together with Convention on the right of children Article. 27(1), provided that persons below the age of 18 should have:-
(c) the right to be separated from adults in their place of detention or imprisonment;
(d) the right to have any allegations of contravening the penal law determined as speedily as possible by an impartial tribunal and if found guilty, be entitled to an appeal by a higher tribunal;
(e) the right to treatment that is aimed at their reformation, re-integration into their families, and social rehabilitation when undergoing prosecution and during detention or imprisonment for contravention of penal law;
(f) the right to have the press and the public excluded from their trial7; and
(g) the right not to be deprived of liberty through arrest, detention or imprisonment except as a measure of last resort and for the shortest appropriate period of time.
We where also mindful of the problem at hand that at that time, the practice of trailing persons aged 16 years and below 18 years through the adult criminal justice system was allegedly premised on the definition of a child as provided for under s.2 of the Act and s.23 of the Constitution.

However to address the problem, there was a need to bring to the attention of authorities specific, relevant and important constitutional provisions on rights of persons who come into conflict with the law which were being omitted in dealing with persons of age range 16 years to under 18 years.

We noted that section 42 of the Constitution in addition to an extensive list of rights relating to arrest, detention and fair trial, provides at 42(2)(g) that if the person accused of committing an offence is a person under the age of eighteen years, he or she shall be entitled 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 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 and that section 42(h) of the Constitution provides furthermore that if an accused person is a person with a disability, he or she shall be entitled in recognition of his or her particular Vulnerability, to be held, wherever possible, in separate accommodation.

The use of adult criminal justice system for persons aged 16 years and below 18 years was my major problem and unconstitutional.

We took note that whereas s. 2 of the Act and s.23 of the Constitution define a child as a person under the age of 16, section 42 which specifically deals with fair trial rights expressly extends the age of entitlement to specific rights to under-18 years.

We noticed that there was no inconsistency between s.23(6) of the Constitution which defines a child as under-16 and s.42(h) which deals with fair trial rights for under-18s because the latter extends the protections under the former to cover persons aged 16 years to under-18 years.

On the other hand, making provision for child justice, the Act provides comprehensive special protections for under-16s modelled broadly on provisions of the African Charter on the Rights and Welfare of Children, Convention on the Rights of Children and Ss.42of the Constitution.

However, to the extent that persons entitled to the special fair trial protections covered under the Act are limited to those aged below 16 years, the Act deprives 16under-18 year olds of the protections of s.42(2)(g) and (h) of the Constitution and provisions of the ACRWR and the CRC.

To this extent the Act limits or completely deprives 16-18 year olds of the rights that accrue to them under the Constitution and relevant international human rights law.

We could see that under section 44 of the Constitution, any limitation or restriction on rights or freedoms (1) must (a) be prescribed by law; (b) be reasonable, (c) be recognized by international human rights standards; (d) be necessary in an open and democratic society; and more importantly as indicated in section (e) (2) shall not negate the essential content of the right or freedom and shall be of general application.

Further observed that s.44, s.46(1) of the Constitution solemnly prohibits the state and its agencies to make any law which abolishes or abridges the rights and freedoms enshrined in Chapter IV of the Constitution, which includes special rights under s.42(2)(g) and (h) thereof.

We therefore included that it is submitted that the practice of trailing persons aged 16 years to under-18 years through the adult criminal justice system on the pretext of a child being legally a person under 16, including sentences meted out on the strength of convicts being adults, amounts to a complete negation and abolishment of the special rights under s.42 (2)(g) and (h) of the Constitution for persons aged between 16 years and under 18 years.

We where surprise that the state legal team and drafters allowed a total negation of those special rights, though prescribed by the Act, which was unreasonable, and inconsistent with recognized international human rights standards for the protection of persons aged less than 18 years which includes persons from 16 years of age.

It was very clear that to the extent of its inconsistency with the Constitution in limiting the special protections to under-16s, the Act was invalid in terms of ss.5 and 46(1) of the Constitution. The Act and the practice were also inconsistent with applicable international human rights law.

Further, in defining a child as a person less than 16 years of age and limiting special protections to under-16s, the Act was inconsistent with Article 2 of the African Charter on the Rights and Child Warfare which unconditionally entitles all persons below 18 years to rights and special protections during their trial and possible eventual incarceration where necessary.

By the same token, the practice of trailing persons aged between 16 years and below 18 years suspected of contravening penal law in Malawi was also inconsistent with applicable international human rights law, especially the ACRWC.

In light of the foregoing and based on sections 5 and 46(1) of the Constitution that solemnly provides that any law and act of government that is inconsistent with the Constitution shall to the extent of such inconsistency, be invalid.

It was based on these key constitution order that l needed to take legal action.

‘The definition of a child under Act No. 22 of 2010 and the practice of dealing with persons above 16 years and below 18 years of age through the adult criminal justice system including in particular imprisonment in adult prisons must be judicially challenged in keeping with section 46(2) of the Constitution which entitles any person who claims that a right or freedom has been infringed or threatened to make an application to a competent court to enforce or protect such right or freedom.” This was my instruction to my legal team.

We want, “the judicial challenge should seek to amend the age of majority for purposes of criminal justice by enhancing it to 18 years in line with section 42(2)(g) and (h) of the Constitution and applicable international human rights law which the domestic courts in Malawi are constitutionally enjoined to have regard to as applicable, under section 11(2)(c) of the Constitution”.

On the institution of such judicial proceedings, an appropriate interim order should also be sought to halt any further prosecution and sentencing of persons aged between 16 years and below 18 years as adults pending the determination of the recommended suit, considering the far-reaching and difficult-to-reverse adverse impact on children of that age range, especially on their physical, mental, moral, spiritual and social development. This was another huge mountain to climb.

As part of my plan, we said in the event of an adverse outcome from the domestic courts in Malawi, We would then engaged International legal partners to file a case before the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) with same objectives as before the domestic court.

We observed several possible strategies for litigating the issue at both domestic and international levels. The domestic suit could be commenced by a properly placed NGO on behalf of all children aged between 16 years and below 18 years.

Eye of the Child which so far participated in other proceedings concerning children as amicus curiae offered a very good option to the Applicant.

However at that time, I was very worried that the law on locus standi was adverse to NGOs commencing proceedings in their own right on behalf of victims of human rights violations.

We knew that the apex court which repeatedly affirmed the position that to commence legal proceedings, the applicant must be the actual victim. This has been used usually to preclude NGOs (legal persons) from prosecuting cases on behalf of victims.

However we noticed some slight but crucial amendment to the relevant Constitutional provision which could be tested.

At that time, section 15 of the Constitution which has been at the centre of pronouncements by the apex court was amended to the effect that “any person or group of persons, natural or legal, with sufficient interest in the promotion, protection and enforcement of rights was entitled to the assistance of the courts to ensure the promotion, protection and enforcement of those rights and the redress of any grievances in respect of those rights.

Alternatively, we thought that the case could be filed by the Malawi Human Rights Commission which is a legal person created under the Constitution.

The MRHC uses litigation before domestic courts as part of its competencies in the protection of human rights.

The two options were procedurally preferable because under applicable municipal procedural law, a person under the age of 18 cannot maintain a suit in their own right as they are considered a minor.

We therefore concluded that a few child offenders serving custodial sentences should be identified as applicants for such a suit.

We search in prison ended up with a 16 year old Stanford Kashuga as his case included the disability and special needs dimensions.

Our plan was to advance the Stanford Kashunga appeal case on the premises of unjustifiable and unreasonable discrimination against/abolishment/deprivation of special rights of persons aged between 16 and under 18 years which they are entitled to under s.429(2)(g) and (h) of the Constitution as read together with various provisions of the CRC and ACRWC.

It was therefore highly recommended by my team of lawyers that the case should be filed as a constitutional case under section 9(2) of the Courts act which allows cases which relate to or concern the interpretation or application of the Constitution shall be heard and disposed of by three judges, as read together with applicable rules of procedure for such matters.

However we where mindful that any constitutional case would require a certification by the Chief Justice that the matter relates to or concerns the interpretation or application of the Constitution.

At that time there was shocking decision by the Chief Justice to the effect that the decision to certify or not certify a matter as constitutional is neither reviewable, nor appealable.

As an alternative to a constitutional case, and to avoid the possibility of an adverse decision at certification stage, we agreed that the matter could be filed as an ordinary action on originating summons challenging the exercise of powers by parliament in making a law that abolishes fundamental special rights granted by the Constitution.

On 8th August, 2012 the Thyolo Magistrate Court convicted a 16 year old blind boy, Stamford Kashuga, together with a 20 year old of burglary and theft and sentenced both of them on each offence to 48 months (3 years) and 12 months (1 year) respectively to run concurrently.

Using these case, we wanted the high court declaration that the Thyolo Magistrate Court acted without jurisdiction in constituting the Second Grade Magistrates Court into a Child Justice Court contrary to 133 (1) of the Child Care, Protection and Justice Act 2010 which awards Child Justice Court jurisdiction to professional magistrates or magistrate of the First Grade only.

We also wanted a declaration that the Thyolo Magistrate Court acted unreasonably in commencing the proceedings and trying the Appellant in the absence of a Probations Officer of sufficient competence relevant to the requirement of the Child Care, Protection and Justice Act 2010 contrary to section 133 (3) of the Child Care, Protection and Justice Act 2010.

A declaration that the Thyolo Magistrate Court acted ultra vires by trying the Appellant who was a child at the material time with an adult contrary to section 136 of the Child Care, Protection and Justice Act 2010 which states that a child jointly charged with an adult shall be separately tried was also advanced.

Others issues included a declaration that the Thyolo Magistrate Court acted ultra vires by trying the appellant in the absence of his parent or guardian contrary to section 135 of the Child Care, Protection and Justice Act 2010; and also a declaration that the Thyolo Magistrate Court acted unreasonably in sentencing the Appellant to serve a prison sentence contrary to section 141(1) of the Child Care, Protection and Justice Act 2010 which states that a child guilty of serious offences shall only be detained at a reformatory centre.

We also wanted the court to declare that the Thyolo Magistrate Court acted unreasonably in failing to remit the Appellant’s case to a proper child justice court contrary to section 145 of the Child Care, Protection and Justice Act 2010 and a declaration that the sentence was illegal as it violated sections 140 and 146 of the Child Care, Protection and Justice Act 2010 which state that no child shall be imprisoned for any offence and does not provide the option of imprisonment for children respectively.

As the child was in prison, it was very important for us for the high court to declares that the Thyolo Magistrate Court acted unreasonably in passing different sentences for offenders with the same level of complicity and thereby discriminating against the Appellant through the award of the harsher sentence of 48 months IHL and the adult convict 12 months IHL.

The team agreed to request that court to order to certiorari bringing up into the High Court the decision of the Thyolo Magistrate Court to try, convict and sentence the Appellant who was a child at the material time for it to be quashed without the option of remitting the matter to the lower court for rehearing; and also order to certiorari bringing up into the High Court the decision of the Thyolo Magistrate Court constituting itself into a Child Justice Court for it to be quashed without the option of remitting the matter to the lower court for rehearing.

An order discharging the Applicant upon his entering into a bond to be of good behaviour and to comply with such conditions as the court may direct to be inserted into the bond pursuant to section 146 (1) (i) of the Child Care, Protection and Justice Act 2010 was also requested.

A probation order placing the Appellant under the supervision of a probation officer for a period to be determined by the Court pursuant to section 146 (1) (f) of the Child Care, Protection and Justice Act 2010 and an order committing the Appellant to a diversion program pursuant to section 146 (1) (b) of the Child Care, Protection and Justice Act 2010.

The team also requested the court direction that there should be a stay of execution of the decision of the Thyolo Magistrate Court until determination of the matter or a further order the court and that the order should operate as an injunction directing the Malawi Prison Service to release the Stanford from their custody or prison, until determination of the matter or a further order of the court.

Today we are celebrating a land mark ruling that has freed hundreds of children from imprisonment in Malawi. The court made its ruling in our favour on 4th February 2015 and this is what Justice Nyirenda said.

“This is the Court’s decision on the applicant’s application for judicial review of the decision of the Thyolo Magistrate Court to constitute itself as a Child Justice Court, the decision of the Thyolo Magistrate Court to try, convict and sentence the applicant without the protection of the Child Care, Justice and Protection Act and the provisions of section 2 of the Child Care, Justice and Protection Act, particularly that part which defines a child as a person under the age of 16 years”.

“The application follows the granting, by my brother judge, of leave to the applicant to apply for judicial review. Although this Court is of the view that there was an alternative remedy in that this matter could easily have been dealt with through other remedies as provided under section 360 of the Criminal Procedure and Evidence Code as follows

The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of reviewing the proceedings and satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court”. He said.

“Judicial review as such was not necessary although the applicant might have his own reasons for proceeding as he did.

The leave should not have been allowed since it is uneconomical in the circumstances where a criminal review would have sufficed.

However, leave to apply for judicial review having been allowed in this matter this Court will proceed to deal with the same.”

The Judge informed the open court that the respondents did not appear at the hearing of the application for judicial review though they were served through the Attorney General’s Chambers.

That left the applicant’s affidavit evidence herein uncontroverted. The applicant also filed skeleton arguments.

“The facts that the applicant relies on for seeking the judicial review of the decisions of the Thyolo Magistrate Court are as follows” he continued with his Judgement.

“The applicant who is visually impaired, and another person, were charged with one count of burglary contrary to section 309 of the Penal Code.

The applicant stated that the Thyolo Magistrate Court presumed that the applicant was a 16 year old boy and proceeded to constitute itself into a Child Justice Court despite the Thyolo Magistrate Court being a second Grade Magistrate Court and therefore not allowed to sit as a Child Justice Court”.

He said, “The applicant claims further that the Thyolo Magistrate Court tried him without the safeguards of the Child Care Justice and Protection Act and that the applicant pleaded guilty to the charge and admitted the facts of the offence as narrated by the prosecution as being true”.

He observed that the Thyolo Magistrate Court convicted the applicant upon his own admission and that applicant’s co-accused who was aged 20 years was also convicted.

“The applicant stated that the Thyolo Magistrate Court passed its judgment on 14th August 2012 and sentenced the applicant to 48 months imprisonment whereas his co accused was sentenced to 12 months imprisonment.

Both accused persons were first offenders. The applicant exhibited a copy of the lower court record. The applicant believes that there being no professional age test done on him, the Thyolo Magistrate Court was supposed to presume that he was a child and entitled to the protection under the Child Care, Justice and Protection Act”.

He further said that the Thyolo Magistrate Court had no jurisdiction to sit as a Child Justice Court. And that despite being aged 16 years, the applicant was supposed to be treated as a child under the Constitution which provides that 18 years is the age of majority.

He said, “In the foregoing circumstances, the applicant seeks judicial review of the decisions of the Thyolo Magistrate Court complained of on the following three grounds”, namely,
1. That the Thyolo Magistrate Court has no jurisdiction to constitute itself into a Child Justice Court and hear and determine a matter where a child is accused of an offence.
2. The bona fide age of majority under the Constitution is 18 years and the Child Care Justice and Protection Act contravenes the Constitution by providing that a child is any person under the age of 16 years.
3. By providing that a child is any person under the age of 16 years while the Constitution provides that majority is attained at 18 years, the Child Care Justice and Protection Act has created an age group of persons aged 16 years and above but below 18 years who are not protected under the Child Care Justice and Protection Act or under any laws as children and yet the same age group is not classified as adults. It has therefore created a class of unprotected young persons, a mischief under the repealed Children and Young Persons Act which the Child Care Justice and Protection Act was meant to remove.

Consequently, the court also noted its judgement all areas where we sort reliefs
1. A declaration that the Thyolo Magistrate Court acted without jurisdiction in constituting itself into a Child Justice Court contrary to section 133 (1) of the Child Care Justice and Protection Act which confers jurisdiction to Resident Magistrates and First Grade Magistrates.
2. A declaration that the Thyolo Magistrate Court acted unreasonably in the way it conducted the trial of the applicant by denying the applicant the protection under the Child Care Justice and Protection Act.
3. A declaration that section 2 of the Child Care Justice and Protection Act and particularly that part which defines a child as a person under the age of 16 years affronts section 42 (2) (g) of the Constitution.
4. A declaration that section 2 of the Child Care Justice and Protection Act and particularly that part which defines a child as a person under the age of 16 years and below is inconsistent with the Constitution and therefore invalid to the extent of the inconsistency with the Constitution.
5. A like order to certiorari bringing up to the High Court the decision of the Thyolo Magistrate Court to try, convict and sentence the applicant who was a child at the material time for the said decision to be quashed without the option of remitting the matter to the lower court for rehearing.
6. A like order to certiorari bringing up to the High Court the decision of the Thyolo Magistrate Court constituting itself into a Child Justice Court for the said decision to be quashed without the option of remitting the matter to a proper Child Justice Court for rehearing.
7. An order discharging the applicant upon his entering into a bond to be of good behavior and comply with such conditions as this Court may direct to be inserted into the bond pursuant to section 146 (1) (i) of the Child Care Justice and Protection Act.
8. A probation order placing the applicant under the supervision of a probation officer for a period to be determined by this Court pursuant to section 146 (1) (f) of the Child Care Justice and Protection Act.
9. An order committing the applicant to a diversion program pursuant to section 146 (1) (b) of the Child Care Justice and Protection Act. 10. Costs against the Thyolo Magistrate Court.

The Court therefore noted that we had four issues for determination namely
1. Whether the Thyolo Magistrate Court acted ultra vires in constituting itself into a child justice court and trying the Applicant;
2. Whether the Thyolo Magistrate Court acted unreasonably in the way it conducted the trial and particularly in trying the Applicant contrary to section 133 (3), 135, 136, 140, 141(1), 145, and 146 of the Child Care Justice and Protection Act;
3. Whether section 2 of the Child Care Justice and Protection Act 2010 and particularly the part which defines a child as a person below the age of 16 is inconsistent with the Constitution and contrary to international human rights standards;
4. Whether section 2 of the Child Care Justice and Protection Act 2010 and particularly the part which defines a child as a person below the age of 16 should be declared invalid to the extent of such inconsistency with the Constitution.

The court acknowledges our submission as follows with respect to each of the issues for determination in this matter.

On whether the Thyolo Magistrate Court acted ultra vires in constituting itself into a child justice court and trying the Applicant, the courted noted our submission that the Thyolo Magistrate Court acted ultra vires in constituting itself into a child justice court and trying Kashunga.

The applicant contended that the law on judicial review was ably explained by the High Court in the case of Nyirenda v Attorney General Miscellaneous Civil Cause Number 33 of 1996 (High Court) (unreported).

The Court had this to say: “Before I proceed any further, I think I should say something about what judicial review is all about. Judicial review …is intended to see that the relevant authorities use their powers in a proper manner”.

The purpose of judicial review therefore is to protect the individual against the abuse of power by a wide range of authorities and one of the leading authorities on this point of law is the case of the Chief Constable of the North Wales Police -vs- Evans [1982] 1 W.L.R. 1155.

The applicant submitted further that the jurisdiction of this Court for judicial review can be invoked where a public authority charged with a public duty acts without jurisdiction or exceeds its jurisdiction.

This is where a decision is founded, wholly or partly, on an error of the law. In such a case, the authority has acted outside its jurisdiction and its decision is, therefore, liable to be quashed by the court. See Anisninic Ltd v Foreign Compensation Commission [1969] 2 A.C. 147.

The applicant then submitted that section 133 (1) of the Child Care Justice and Protection Act provides jurisdiction of the child justice court to professional magistrates and first grade magistrates and other magistrate can only be conferred jurisdiction by the Chief Justice by notice in the Government Gazette.

The said section 133 is in the following terms (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 further submission by the applicant is that the Thyolo Magistrate Court has not been gazetted as a child justice court therefore could not sit as such.

That the sitting of the Thyolo Magistrate Court herein was therefore ultra vires the Child Care Justice and Protection Act.

This Court notes that there has been no proof of the fact that the appointment of the Second Grade Magistrate as a child justice court was gazzetted as per the prescriptions of section 33 of the Child Care Justice and Protection Act.

As such the sitting of the lower court herein was indeed ultra vires the Child Care Justice and Protection Act as claimed by the applicant.

On the second issue, whether the Thyolo Magistrate Court acted unreasonably in the way it conducted the trial and particularly in trying the applicant contrary to section 133 (3), 135, 136, 140, 141(1), 145, and 146 of the Child care Justice and Protection Act the applicant submits that the Thyolo Magistrate Court acted unreasonably in the way it conducted the trial and particularly in trying the applicant contrary to sections 133 (3), 135, 136, 140, 141(1), 145, and 146 of the Child care Justice and Protection Act.

The applicant submitted that decisions of persons or bodies which perform public duties or functions will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the court concludes that the decision is such that no such person or body properly directing itself on the relevant law and acting reasonably could have reached that decision.

The applicant referred to the decision in the case of Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223. Further that the material phrase is ‘properly directing itself on the relevant law’.

Failing to properly direct its mind on the relevant law therefore means that body is acting unreasonably.

The applicant further submitted that the lower court as public body failed to properly direct its mind to the relevant law and therefore the lower court acted unreasonably.

The applicant proceeded to demonstrate the unreasonableness as follows.

The applicant submits that although the Thyolo Magistrate Court had constituted itself as a child justice court it proceeded to deal with the applicant contrary to the dictates of the applicable law.

Firstly, that in the present matter, the applicant was aged 16 at the material time. And that the relevant applicable law, therefore, is the Child Care Justice and Protection Act.

To that end section 133 (3) of the Child Care Justice and Protection Act provides that a presiding magistrate shall before commencement of proceedings in a child justice court, ensure that a probation officer of sufficient competence relevant to the requirements of this act is present throughout the proceedings.

The applicant submitted that the lower court never called for the attendance of a probation officer during the entirety of the trial proceedings.

This is contrary to the requirements of the Child Care Justice and Protection Act.

Secondly, the applicant referred to section 135 of the Child Care Justice and Protection Act which provides that (1) Where a child is brought before a child justice court as an accused person… his parent or guardian may in any case, and if such parent or guardian can be found and resides within a reasonable distance, shall be required to attend all stages of the proceedings, unless the child justice court is satisfied that-
a) it is unreasonable or unnecessary to require the attendance of such parent or guardian or;
b) it is in the best interests of the child that the parent or guardian should not attend the proceedings;
(2) Where it is unreasonable or unnecessary to require the attendance of the parent or guardian or where the attendance of the parent of guardian will be prejudicial to the fair disposal of the case, the court shall appoint an appropriate adult for purposes of subsection (1) to attend the proceedings in place of the parent or guardian’

The applicant submitted that the lower court never made sure that during the trial of the applicant there was a guardian or parent.

It therefore flouted the dictates of the very same law it was meant to apply.

Thirdly, the applicant referred to section 136 of the Child Care Justice and Protection Act 2010 which provides that (1) where a child and an adult are jointly charged of an offence, the child shall be tried separately from the adult, unless there are compelling reasons for joinder of the trials.

The applicant submitted that he was tried together with another person aged 20 at the material time. In the eyes of the law, the other accused person is an adult and was not supposed to be tried together with the child applicant.

In contravention of the Act, the lower court went ahead and tried the child applicant with the adult and did not find nor cite any compelling reasons for trying the child applicant with the adult.

Fourthly, the applicant referred to section 140 of the Child Care Justice and Protection Act 2010 which provides that no child shall be imprisoned for any offence.

He made further reference to section 141 (1) of the Child Care Justice and Protection Act 2010 which provides that where a child is found responsible for offences listed in the Sixth schedule, the court shall order him to be detained at a reformatory centre for such period as may be specified in the order.

The applicant contended that contrary to the foregoing provisions the lower court sentenced him to a term of imprisonment.

Further, that in pursuance of its unreasonable order of imprisonment sent the child applicant to Bvumbwe prison.

The applicant contended that the lower court therefore acted unreasonably in failing to properly direct its mind to the applicable law.

For the foregoing reasons, the applicant argues that the Thyolo Magistrate Court acted unreasonably in the way it conducted the trial and particularly in trying the applicant contrary to section 133 (3), 135, 136, 140 and 141(1) of the Child care Justice and Protection Act.

This Court upon a perusal of the lower court record herein agrees that the Thyolo Magistrate Court failed to direct its mind to the relevant law and proceeded indeed to try the applicant in an unreasonable way contrary to the relevant law as explained by the applicant.

The actions of the Thyolo Magistrate Court were therefore unreasonable as claimed by the applicant.

On the issue whether Section 2 of the Child Care Justice and Protection Act 2010 and particularly the part which defines a child as a person below the age of 16 is inconsistent with the Constitution and contrary to international human rights standards the applicant submitted that Section 2 of the Child Care Justice and Protection Act 2010 and particularly the part which defines a child as a person below the age of 16 is inconsistent with the Constitution and contrary to international human rights standards.

The applicant submitted that the Constitution in section 13 (h) which forms part of the principles of national policy states that the State shall actively promote the welfare and development of the people of Malawi by progressively adopting and implementing policies and legislation aimed at achieving the following goals—

(h) Children to encourage and promote conditions conducive to the full development of healthy, productive and responsible members of society.

Further that section 14 of the Constitution provides that The principles of national policy contained in this Chapter shall be directory in nature but courts shall be entitled to have regard to them in interpreting and applying any of the provisions of this Constitution or of any law or in determining the validity of decisions of the executive and in the interpretation of the provisions of this Constitution.

The applicant submitted that the State is obliged to make sure that the laws applicable are in furtherance of the ideals contained in the principles of national Policy.

Treating young person’s as adults in the criminal justice system stands in the way of their development as the effects of criminal punishment may end up interfering with the young persons’ education and social development.

And that, therefore, in the interpretation of the Constitution, the promotion of full development of children and young person’s is a paramount consideration.

On, what the applicant termed the proper age of majority, he submitted that section 22 (7) of the Constitution provides that for persons between the age of fifteen and eighteen years a marriage shall only be entered into with the consent of their parents or guardians.

Further, that section 15 of the Presidential and Parliamentary Elections Act provides that every citizen of Malawi residing in Malawi and who, on or before the polling day, shall have attained the age of eighteen years shall be eligible to register as a voter in an election.

He further submitted that most international human rights standards prevailing and applicable to Malawi define a child as person under the age of 18.

He referred to Article 1 of the Convention on the Rights of the Child (CRC) which defines a child as a person under the age of 18 but allows exceptions to be prescribed by law of the relevant nation.

He further referred to Article 2 of the African Charter on the Rights and Welfare of the Child which defines a child as every human being below the age of 18.

He also observed that the African Charter on the Rights and Welfare of the Child has been described as the most progressive of all treaties on the rights of the child as it does not give exception to the age limit.

The applicant further stated that by setting the ages of 18, the above laws are recognizing that below this age of 18, a person is not fully developed and not yet capable of making the most important decisions of one’s life or decisions affecting society.

The applicant’s contention is that if a person aged 18 is not allowed to vote, then necessarily that person should not be allowed to be imprisoned.

A person aged 18 who is arguably not yet capable of making the most important decisions of their life alone should not be treated as an adult as such treatment will only end up hardening them and thereby stand in the way of their full development as productive citizens of the nation.

This will in the end affront the spirit of the Constitution which seeks to make sure that children develop all the way to majority at 18 without interference.

The applicant further submitted on what he termed, the problem of defining children as persons under 16 years of age. He submitted that section 30 of the Constitution provides that (1) All persons and peoples have a right to development. Right therefore to the enjoyment of economic, social, cultural and political development and women, children and persons with disabilities in particular shall be given special consideration in the application of this right.
Further that section 23 states as follows (1) All children, regardless of the circumstances of their birth, are entitled to equal treatment before the law, and the best interests and welfare of children shall be a primary consideration in all decisions affecting them. …
(5) Children are entitled to be protected from economic exploitation or any treatment, work or punishment that is, or is likely to—
(a) be hazardous;
(b) interfere with their education; or
(c) be harmful to their health or to their physical, mental or spiritual or social development.
(6) For purposes of this section, children shall be persons under the age of sixteen years.


The Applicant submitted that, firstly, it has to be pointed out that the Constitution has limited the definition of children as persons under the age of 16 to section 23 of the Constitution only.

It is expressly provided that the age 16 only takes validity under section 23 of the Constitution. Therefore, the definition does not have force outside the ambit section 23 of the Constitution.

Secondly, defining a child as a person less than 16 years creates confusion.

Persons between the ages of 16 years and 18 years will not know whether they are adults or children as such they will be vulnerable to various abuses.

These persons will neither be children nor adults. For the purpose of voting they will be children and for purposes of criminal punishment they will be treated as adults.

The applicant submitted that the effect of treating a person aged 16 years and above as an adult is worse than the effect of denying a person under 18 years the right to vote.

In essence, a person aged 16 years and above can be imprisoned in very harsh conditions detrimental to their social development and health.

Yet the same person who faces the fullest arm of the law in criminal sanctions is not allowed to exercise a political right to vote, a right whose exercise is not even mandatory at the age of majority.

The applicant further submitted that criminal sanctions are very invasive of the person and attack the very essence of human rights to liberty, health, and development.

These criminal sanctions should therefore be reserved for persons who have fully developed. It was the applicant’s submission that a person aged 16 years has not fully developed.

And that this contention is supported by the laws that that such person is not allowed to vote nor own property, register an organization or even obtain a driver’s licence.

The applicant concluded that defining children as persons under the age of 16 years affronts the right to development as it exposes young and undeveloped persons to the harsh effects of criminal sanctions which may directly stand in the way of their proper growth socially.

The applicant further submitted on what he termed, 18 years as the constitutional age of majority. He referred to section 42 (2) (g) of the Constitution which provides that (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 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 applicant submitted that the above provision clearly puts a person under the age of 18 years away from the harsh treatment of criminal sanctions.

Further, that it clearly spells out that if the person is under the age of 18 years, that person must receive treatment consistent with the treatment fitting for a child. He therefore submitted that for the purpose of criminal sanctions, a child is a person under the age of 18 years.

The applicant then submitted that the Child Care Justice and Protection Act creates safeguards for the treatment of children consistent with the one stipulated in section 42 (2)(g) of the Constitution.

The only problem with the Child Care Justice and Protection Act is that it has, contrary to the Constitution, reduced to 16 years the age where a person is entitled to the treatment consistent with the special needs of children.

The applicant also contended that in criminal law, a person under the age of 18 years is to be treated as a child.

Further, that the Child Care Justice and Protection Act by defining a child as a person under the age of 16 years is going against the dictates of the Constitution.

Section 2 of the Child Care Justice and Protection Act defining a child as a person under the age of 16 years is therefore inconsistent with the Constitution.

This Court has noted that indeed with respect to the criminal justice system certain rights accrue to persons under the age of 18 years. These rights are provided for under section 42 (2) (g) of the Constitution.

It is therefore indeed contrary to this Constitutional provision for the Child Care Justice and Protection Act to limit the accrual of such rights to treatment that reflects the special needs of children in the criminal justice system to those persons below 16 years of age.

As such, section 2 of the Child Care Justice and Protection Act, in so far as it defines a child as a person below 18 years with respect to the criminal justice system, that is in relation to arrest, detention and trial, is contrary to or inconsistent with the Constitution and therefore unconstitutional.

For all criminal justice matters under the Child Care Justice and Protection Act, a child ought to be a person under 18 years of age 16 in line with the constitutional provisions under section 42 (2) (g) of the Constitution.

On the issue whether section 2 of the Child Care Justice and Protection Act and particularly the part which defines a child as a person below the age of 16 should be declared invalid to the extent of such inconsistency with the Constitution the applicant submitted that, Section 2 of the Child Care Justice and Protection Act and particularly the part which defines a child as a person below the age of 16 should be declared invalid to the extent of such inconsistency with the Constitution.

The applicant submitted that on the Supremacy of the Constitution. He started by citing section 48(2) of the Constitution which provides that an Act of Parliament shall have primacy over other forms of law, but shall be subject to this Constitution .

He submitted further that section 5 of the Constitution provides for the supremacy of the Constitution as follows any act of Government or any law that is inconsistent with the provisions of this Constitution shall, to the extent of such inconsistency, be invalid.

The applicant also referred to section 10 of the Constitution states that (1) In the interpretation of all laws…the provisions of this Constitution shall be regarded as the supreme arbiter and ultimate source of authority.

(2) In the application and formulation of any Act of Parliament and in the application and development of the common law and customary law, the relevant organs of State shall have due regard to the principles and provisions of this Constitution.

He further referred to section 46 of the Constitution which states that

(1) Save in so far as it may be authorized to do so by this Constitution, the National Assembly or any subordinate legislative authority shall not make any law, and the executive and the agencies of Government shall not take any action, which abolishes or abridges the rights and freedoms enshrined in this Chapter, and any law or action in contravention thereof shall, to the extent of the contravention, be invalid.

The applicant then contended that the provisions of the constitution in section 42 (2) (g) award the right to be treated as a child to all persons under the age of 18 years. And that the Constitution is the supreme law of the land and ultimate source of authority.

Further that, the Child Care Justice and Protections Act in section 2 has taken away a right afforded by the Constitution. The relevant section 2 of the Act is therefore inconsistent with the Constitution and must therefore be declared invalid to the extent of that inconsistency.

The applicant then referred to section 44 of the Constitution which provides that

(1) No restrictions or limitations may be placed on the exercise of any rights and freedoms provided for in this Constitution other than those prescribed by law, which are reasonable, recognized by international human rights standards and necessary in an open and democratic society.

The applicant then submitted on enforcement of infringed rights. He referred to section 46 of the Constitution which states that

(2) Any person who claims that a right or freedom guaranteed by this Constitution has been infringed or threatened shall be entitled (a) to make application to a competent court to enforce or protect such a right or freedom

(3) Where a court referred to in subsection (2) (a) finds that rights or freedoms conferred by this Constitution have been unlawfully denied or violated, it shall have the power to make any orders that are necessary and appropriate to secure the enjoyment of those rights and freedoms and where a court finds that a threat exists to such rights or freedoms, it shall have the power to make any orders necessary and appropriate to prevent those rights and freedoms from being unlawfully denied or violated.

He also referred to section 41 (3) Constitution which provides that Every person shall have the right to an effective remedy by a court of law or tribunal for acts violating the rights and freedoms granted to him or her by this Constitution or any other law.

He further referred to section 11 of the Constitution which states that (3) Where a court of law declares an act of executive or a law to be invalid, that court may apply such interpretation of that act or law as is consistent with this Constitution.

The applicant submitted that the Child Care Justice and Protection Act have taken away the constitutional rights to be enjoyed by person aged between 16 years and 18 years as far as criminal law is concerned.

And that this is an affront to the Constitution. Further, that the applicant as a citizen aged 16 years at the material time has suffered criminal sanctions as a consequence of the enactment of the Child Care Justice and Protection Act and particularly section 2 defining a child as a person aged 16 years and below.

And that the applicant’s right to be given treatment consistent with the needs of a child has been taken away on account of section 2 of the Child Care Justice and Protection Act.

The relevant section should therefore be declared invalid and the honourable court is entreated to declare that section invalid in protection of the right is affronts.

The applicant submitted that despite being prescribed by law under the Child Care Justice and Protection Act, the definition of child as a person under the age of 16 years is unreasonable.

It is also not recognized under international human rights standards as discussed above. Further, it is not necessary in an open and democratic society.

It is the applicant’s submission therefore that the section of the Child Care Justice and Protection Act defining a child as person under the age of 16 years should be declared invalid as it is not consistent with the Constitution.

Further that the applicable and valid definition of child should be the definition prevailing in the Constitution under section 42 (2) (g) and that is that any person under the age of 18 years should be treated as a child and enjoy the rights and protections afforded to children under the law.

This Court agrees that in so far as the criminal justice process is concerned section 2 of the Child Care Act is invalid to the extent that it limits the right to treatment reflecting the special needs of children to persons under the age of 16 years instead of those persons under 18 years as is expressly provided in section 42 (2) (g) of the Constitution.

That limitation by an Act of Parliament is inconsistent with the Constitution which has supremacy over such an Act of Parliament.

In view of the foregoing, this Court grants the applicant the following reliefs as sought by the applicant:-
1. A declaration that the Thyolo Magistrate Court acted without jurisdiction in constituting itself into a Child Justice Court contrary to section 133 (1) of the Child Care Justice and Protection Act which confers jurisdiction to Second Grade Magistrates upon appointment by the Chief Justice and notice in the Gazette of the said appointment.
2. A declaration that the Thyolo Magistrate Court acted unreasonably in the way it conducted the trial of the applicant by denying the applicant the protection under the Child Care Justice and Protection Act.
3. A declaration that, that part of section 2 of the Child Care Justice and Protection Act which defines a child as a person under the age of 16 years affronts section 42 (2) (g) of the Constitution in so far as that definition applies to persons within the criminal justice process.
4. A declaration that, that part of section 2 of the Child Care Justice and Protection Act which defines a child as a person under the age of 16 years and below is inconsistent with the Constitution to the extent in the preceding declaration and therefore invalid to the extent of its inconsistency with the Constitution.

With regard to the reliefs the applicant is seeking in the form of a like order to certiorari, this Court is aware that such relief is available to quash the decisions of inferior courts or tribunals and any other public body ‘having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially’.

See per Lord Atkin in R v Electricity Commissioners, ex parte London Electricity Joint Committee Co. (1920) Ltd [1924] 1 KB 171.

In view of the declarations on the unlawfulness of the lower court’s decision herein the following further orders are granted to the applicant.

A like order to certiorari quashing the decision of the Thyolo Magistrate Court to try, convict and sentence the applicant who was a child at the material time.

A like order to certiorari quashing the decision of the Thyolo Magistrate Court constituting itself into a Child Justice Court.

This Court is further aware that where the relief sought is an order of certiorari and the court is satisfied that there are grounds for quashing the decision to which the application relates, the court has power, in addition to quashing the decision, to remit the matter to the court, tribunal or authority concerned with a direction to reconsider it and reach a decision in accordance with the findings of the court. see Order 53 r.9 (4) Rules of Supreme Court.

Thus the court's powers are not limited simply to finding whether the decision should be upheld or reversed, but it can remit the case to the proper authority to do what is right in the light of its findings. see R. v. Northumberland Compensation Appeal Tribunal [1952] 1 K.B. 338, per Denning L.J. at p. 347. See Note 53/14/86 to Order 53 rule 14 Rules of Supreme Court.

This Court however recognizes that no purpose would be served by remitting the matter herein to the lower court that had no jurisdiction in the first place.

Rather, it is expedient for this Court to direct how the applicant should be dealt with under the relevant law.

The applicant sought the following orders.

An order discharging the applicant upon his entering into a bond to be of good behavior and comply with such conditions as this Court may direct to be inserted into the bond pursuant to section 146 (1) (i) of the Child Care Justice and Protection Act.

A probation order placing the applicant under the supervision of a probation officer for a period to be determined by this Court pursuant to section 146 (1) (f) of the Child Care Justice and Protection Act.

An order committing the applicant to a diversion program pursuant to section 146 (1) (b) of the Child Care Justice and Protection Act.

Regrettably, this Court has no material on the basis of which to arrive at the decision to make the orders that the applicant sought in his proposed orders above.

As the applicant himself pointed out, the applicant’s proceedings ought to have been attended by the applicant’s parents or guardians if they are available as well as a probation officer.

These parties which were absent before the lower court proceedings impugned herein are meant to provide vital information pertaining to the applicant’s situation in life which in turn would inform the lower court in dealing with the applicant on his admission of the offence herein.

On admission of the offence, the applicant should properly have been dealt with under section 146 of the Child Care Justice and Protection Act which is in the following terms
(1) Where a child admits the facts constituting the offence or where a child justice court is satisfied that an offence has been proved, the Court shall, in addition to any other powers exercisable by virtue of this Act or any other written law, in so far as such law is consistent with this Act, have power-
a) to discharge the child unconditionally;
b) to discharge the child upon his entering into a bond to be of good behaviour and to comply with such conditions as the court may direct to be inserted in the bond;
c) to commit the child to the care of a relative or other fit person willing to undertake the care or the child;
d) to order the parent or guardian to execute a bond to exercise proper care and guardianship;
e) to order the child to pay a fine, compensation, damages or costs;
f) without making any other order, or in addition to an order under paragraphs (b), (c), (d) or (e), to make a probation order placing the child under the supervision of a probation officer or some person appointed for the purpose by the court, for a period of not less than one year and not more than three years from the date of the order as may be specified in the order, and to require the probation officer or the appointed person as the case may be to submit regular reports to the court on the development of the behaviour of the child;
g) to commit the child to the High Court for an order where appropriate; h) to make a reformatory centre order; and i) to commit the child to a diversion programme.
(2) A court shall not make a reformatory centre order in relation to a child under the age of fourteen years, unless- a) there is no fit person willing to undertake the care of the child; or b) the court is satisfied that the child cannot suitably be dealt with otherwise.
(3) In arriving at its decision under this section, the court shall have regard to section 88 of this Act.

In the foregoing circumstances, and considering the seriousness of the offence of burglary herein, this Court remits the applicant’s case to the Chief Resident Magistrate Court sitting at Blantyre to dealt with the matter according to the Child Care Justice and Protection Act should the prosecution be minded to proceed against the applicant.

The applicant asked for costs to be awarded against the Thyolo Magistrate Court.

The Thyolo Magistrate Court is a court and it is not normal practice to award costs against the courts and this Court is therefore constrained to do so now.

Consequently no order for costs is made especially given that this matter could as well have been proceeded with more economically by way of criminal review by the High Court under section 360 of the Criminal Procedure and Evidence Code.

Made in open Court at Blantyre this 4th February 2015

Advocacy is the key function that define Eye of the Child work. It involves law reform, Policy development, Social Mobilization, Civic Education, lobbying and strategic litigation.

During the year under review, 2022, the organization lead an advocacy team to call Malawians end sexual exploitation of children.

In the year 2023, we will join the campaign for Malawi to enact the long awaited Adoption Bill as one way of promoting alternative Care. We are also planning to have some advocacy activities for the passing of the Witchcraft Bill which we think will create more protection to children in rural areas.

Zero Tolerance against Child Abuse will be our major campaign that will be conducted throughout the country. In Malawi, violence against children is on the rise as seen from the alarming cases of children being abused and exploited. These continue to be reported in the media every day.