detaining children in Police custody
Chikondi Chijozi represented the applicants

The High Court in Blantyre on Friday found as unlawful lower Court’s orders detaining children in Police custody and has since ordered the release of the minors.

High Court Judge John Chirwa has also given 30 days to the Ministry of Gender to designate safety homes for the detained minors in accordance with the country’s laws.

The applicants were eight children that appeared before the Child Justice Court for various offences and were remanded in Police custody at Limbe Police Station in Blantyre before a finding against them was made.

The children, represented by Chikondi Chijozi of Southern Africa Litigation Centre and Ruth Kaima of Center for Human Rights Education Advice and Assistance, filed an application for review challenging their detention into police custody as being unlawful. 

In his ruling, Justice Chirwa found that the detention of children in Police custody is unlawful and does not comply with Section 23 of the Constitution; Sections 88 and 96 of the Child Care Protection and Justice Act; and Article 3 of the CRC.

Justice Chirwa argued that the detention of the applicants in Police custody interfered with their health, physical, psychological, emotional growth, and development.

He also faulted the lower court for not taking time to inspect or have knowledge of the environment, particularly to know if the environment had adequate provision and recreation facilities. 

The High Court further observed that the lower courts’ orders of detention did not consider the different ages of the children and their vulnerabilities and therefore violated section 42(2)(g) of the Constitution.

Justice Chirwa, therefore, ruled that any decision against the above provisions is unconstitutional and not in line with Malawi’s international obligations.

He advised all lower courts to take necessary steps to ensure that children are not put in undesirable environments and conditions that will be hazardous to their health, growth, and nutritional needs.

He concluded by ordering the release of the applicants with the Ministry of Gender, Community Development and Social Welfare ordered to, within 30 days, open and designate safety homes as per its mandate under Section 157 of the Child Care Protection and Justice Act and that the safety homes should have regard to the Third Schedule  to the Act and the best interests of the children.

Meanwhile, the Malawi Human Rights Commission (MHRC) welcomed the High Court ruling by indicating that it will be monitoring the implementation of the judgment and ensure that no minors are incarcerated or detained in police cells.

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