MALAWI: CHALLENGE TO EXECUTIVE POWER TO SENTENCE JUVENILES

Salc : Staff Writer

In Moyo v Republic, SALC is challenging in the Malawi Constitutional Court, Section 11(1) of the Children and Young Persons Act and Section 26 of the Malawi Penal Code, which grant the President of Malawi authority to sentence juveniles at his discretion.

Evance Moyo was arrested at 16 and charged with murder.  During his detention he was held with adult inmates in violation of international law.  SALC, through partners in Malawi, intervened as amicus at the trial stage arguing that permitting the Executive to sentence juveniles violated Moyo’s constitutional right to an independent trial. The case was first heard by the Constitutional Court and judgment was delivered in August 2009.

The Court held that Moyo’s constitutional and international law rights were violated, in respect of not being accorded the special treatment owed juvenile prisoners and ordered his immediate release. However, the Court failed to determine the legality of Section 26 of the Malawi Penal Code and section 11(1) of the Children and Young Persons Act.  SALC appealed the decision arguing that both sections were unconstitutional.

The Constitutional Court heard arguments on 22 November and a decision is expected in 2011.

In direct response to SALC’s appeal, the legislature has repealed the President’s power to sentence juveniles at his discretion.