Malawi: Advancing the Best Interests of the Child in Decisions Relating to the Incarceration of Caregivers

Salc : Staff Writer

SALC is working with the Center for Human Rights Education, Advice and Assistance (CHREAA) to advance best interests of children in decisions to incarcerate caregivers.  International guidelines recommend taking into account the best interests of the child in decisions relating to incarceration of caregivers and generally encourage non-custodial arrangements for women with young children where possible and appropriate.

In one case, the Applicant, an 18 year old and a first time offender was convicted and sentenced to 48 months imprisonment with hard labour for burglary and theft with effect from 12 February 2015. She was supposed to serve a total of 28 months when remission is computed from the 48 months. The Applicant was pregnant at the time of her arrest and gave birth in August 2015. During her trial in the lower court, the Applicant was not represented and as such she did not appreciate the importance of bringing the issue of her pregnancy before the court so that could be taken into consideration in sentencing. The Applicant did raise the fact that she was already a mother to a three year old in mitigation of sentence but the court did not take any consideration of that child’s best interests in reaching its decision to give a custodial sentence. The Applicant requested that the High Court release her in the best interests of her infant child or that in the alternative she be granted bail until review of her case and further order by the Court. She was granted bail pending review on Friday 13 November 2015.

In another case, the Applicant was incarcerated with her three infant children (twins aged 3 years and a baby born while in prison). She was sentenced to 30 months imprisonment with hard labour for intimidation.  The client was granted bail pending review  on account of her children in March 2016 and her release on bail had no conditions attached. Lawyer Mandala Mambulasa represented the Applicants in both these cases.

In a third case SALC supported CHREAA to make arguments in mitigation of sentence in a matter involving a woman convicted of arson and unlawful wounding. While recognising the gravity of the offence, the Second Grade Magistrate Court sitting at Ntcheu considered the fact that the accused was a primary care giver to four young children aged between 3 and 12 years. In their submissions, the accused’s legal representatives also requested the Court to take cognisance of the fact that the female section of the prison closest to the accused’s home has been closed for maintenance purposes and that if the court imposed a custodial sentence, it would result in the accused person being sent to a faraway prison contrary to Section 23(3) of the Constitution which provides for children’s right to know, and to be raised by, their parents. On 11 March 2016, the Court did not hand down a custodial sentence and indicated that in reaching this decision, it had taken into account the best interests of the accused’s young children. Lawyer Chikondi Chijozi Ngwira represented the Applicant on sentencing.