Malawi: High Court of Malawi reviews harsh sentences imposed on possession of Indian hemp

Background On 15 June 2022, a 17-year-old boy was allegedly found in possession of 78 plastic bags (weighing about 134 kilograms) of Indian hemp at his home. He was subsequently arrested and charged with being found in possession of Indian hemp without a licence, contrary to Regulation 4(a) of the Dangerous Drugs Regulations, as read with Section 19(1) of the Dangerous Drugs Act. The offence of possession of Indian Hemp without a licence attracts a maximum penalty of life imprisonment. When the boy appeared before the Magistrate’s Court, he was unrepresented, and he pleaded guilty to the offence. He was then sentenced to 8 years imprisonment with hard labour. It is with these facts that the boy sought legal representation and judicial review proceedings of the proceedings in the lower court and his overall sentence. Through his legal counsel, the boy sought review on the following grounds:

• The Court to quash his conviction and set aside his sentence due to the Magistrate Court erring in accepting his guilty plea in circumstances where it contradicted his caution statement which indicated that he was not in possession of the Indian Hemp.
• His right to a fair trial was violated as he was not provided with a legal practitioner considering the seriousness of the offence that he was charged with.
• The lower court record indicated that he was 19 years old whilst he is 17 years old and should have been accorded the protection of a child under the Child Care Protection and Justice Act. Further, even though the issue of his actual age was not presented before the lower court, that the lower court should have invoked the provisions of Section 138 of the Child Care Protection and Justice Act which allows for extension of application of the Act to young persons over the age of 18 and under the age of 21.
• The charge sheet was defective, and the sentence imposed by the lower court was excessive considering his age and the sentencing trends for the offence.

In the High Court On 12 July, the High Court in Blantyre sitting on review considered whether the young boy’s conviction was safe based on an equivocal plea of guilty, whether the sentence imposed by the lower court was excessive and  whether  the lower court ought to have applied the provisions of Section 138 of the Child Care Protection and Justice Act which allows the Court to extend the provisions of the Act to persons under the age of 21. The High Court confirmed his conviction but reduced the sentence to 3 years. He appealed against the decision of the High Court. His application for bail pending appeal was denied by the High Court.. In the Supreme Court Whilst he was waiting for the hearing of his appeal before the Supreme Court of Appeal,  the President of Malawi, on 10 April 2023, pardoned the accused along with other accused persons serving various sentences as part of Easter commemorations. The young boy was represented by Chikondi Chijozi and Luntha Chimbwete of the Southern Africa Litigation Centre; Ruth Kaima from the Centre for Human Rights, Education, Advice and Assistance and Alexious Kamangira of Nicholls & Brookes. The case was also supported by the Southern Africa Litigation Centre. News Release 11 July 2022 – High Court to review harsh sentence imposed on youth for hemp possession.