SDI

BUSINESS SUCCESS IS IN
STAFF DEVELOPMENT

STAFF DEVELOPMENT INSTITUTE

STAFF DEVELOPMENT INSTITUTE

CERTIFICATE IN LAW

JUVENILE JUSTICE

STUDY GUIDE
1. INTRODUCTION
1.1 WHO IS A JUVENILE?
Juveniles are defined as persons who have not attained the age
of majority. These are believed to not be old enough to be held
responsible for criminal acts. In most states and on the federal
level, this age threshold is set at 18 years. In Malawi however, it is
the age of 16 as per S.23(5) of the Constitution and S.2 of the Child
Care, Protection and Justice Act (2010).

However, a juvenile and a minor are used in different perspective

in legal terms. The term juvenile in law is generally used in
reference to a young criminal offender and minor is related to
legal capacity of a person. The juvenile therefore is a child who
has alleged violated certain laws which declares his act or
omission as an offence.

The term ‘children in conflict with the law’ has come into usage as
an alternative to ‘juvenile delinquent’, which carries a certain
stigma. ‘Children in conflict with the law’ means any child who
comes into contact with law enforcement authorities because he
or she is suspected of breaking the law or of participation in ‘anti-
social’ behaviour or because he or she is considered likely to
become involved in crime. In this regard, it is important to bear in
mind that an act against the law does not necessarily mean that
a person is guilty of an offence. To be guilty, a person must have
acted with awareness of what he or she was doing, with intent,
and without duress or undue influence.

1.2 WHY DO JUVENILES NEED TO BE PROTECTED?

All beings have inherent human rights of which the State has the
obligation to protect. It is the duty of the state to put in place
mechanisms that not only create for but maintain the
safeguarding of the rights of all human beings.

One of the fundamental principles of the supreme law of the land

states that: The inherent dignity and worth of each human being
requires that the State and all persons shall recognize and protect
fundamental human rights and afford the fullest protection to the
rights and views of all individuals, groups and minorities whether or
not they are entitled to vote [Section 12 (iv)].

Section 4 of the Constitution provides that all the peoples of

Malawi are entitled to the equal protection of the Constitution,
and laws made under it. Needless to say, that this includes
juveniles.

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 Under the Bill of Rights in the said Constitution, where it talks about
the protection of human rights and freedoms, S.15 states that: any
person or group of persons with sufficient interest in the protection
and enforcement of rights under this Chapter shall be entitled to
the assistance of the courts, the Ombudsman, the Human Rights
Commission and other organs of Government to ensure the
promotion, protection and redress of grievance in respect of
those rights.

Under the provisions of the rights of children, the Bill of Rights

provides that 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.
[S.23 (4)]

It is essential to understand that not all children in criminal justice

systems are criminals, but rather children in need of care and
protection. Children may be in conflict with the law or may be
arrested for activities that are officially criminalized in legislation
but which the international human rights community calls to be
decriminalized as a matter of urgency (status offences). Some
children who have not engaged in criminal behaviour are
nevertheless arrested illegally. There is also a category of children
who are directed to the criminal system because the care system
is lacking.

1.3 WHAT IS JUVENILE JUSTICE

Juvenile justice is a system of laws, policies, and procedures
intended to regulate the processing and treatment of nonadult
(young) offenders for violations of law and to provide legal
remedies that protect their interests in situations of conflict or
neglect.
It requires a wide range of skills, from working with one individual
to prevent him or her from entering the juvenile justice system to
advocating for social change and social justice.

Punishable offenses that are classified as criminal offenses for

adults (e.g., murder, robbery, and larceny) are referred to
as delinquency when committed by juveniles.
On the other hand, juvenile offenses mandating legal intervention
only (e.g., alcohol and tobacco use, truancy, and running away
from home) are referred to as status offenses.

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 Status offenses are noncriminal acts or prohibited acts that are
considered a law violation only because of a youth’s status as a
minor. In other words, these are actions that would not be
considered a crime if it were done by adults.

Children are also subject to specialized laws, procedures, and

policies designed to protect their interests when parents or other
legal guardians are unavailable, negligent, or involved in
custodial disputes. The Constitution of Malawi makes the first
attempt at this under Section 23.

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2. BACKGROUND AND SOURCES OF JUVENILE JUSTICE
The specific mechanisms for administering juvenile justice have varied
over time among societies and even among jurisdictions within
countries. The concept of juvenile justice, as well as special trials and
institutions for confining and controlling youth, was established in the
mid-19th century in Great Britain, where courts acquired the authority to
intervene as parens patriae (Latin: “parent of the land”) to protect
the property rights of children. Yet juveniles were tried in the same courts
as adults until Juvenile Courts in those respected jurisdictions were
established.
The same has been the situation in Malawi. Under the 1969 Children and
Young Persons Act, the law stated that those under the age of 18 should
not be sent to adult prisons. However, for a long-time, courts and police
have been sending children to prison perhaps as an easy option.
Over the years there has been a dramatic increase of the prison
population and these are prisons that are already congested,
dilapidated and unhygienic colonial structures. Young men and
children have suffered from acute scabies, caused by overcrowding,
poor hygiene and inadequate health care. This was exacerbated by an
inadequate diet.
It was only when Amnesty International in 1998 highlighted the extent of
the deterioration of the prisons where 180 young prisoners were held that
a number of human rights NGO's in Malawi initiated a review of the
legality of the detention of juveniles currently in prison. They examined
the juvenile section of three prisons and interviewed 383 inmates. The
initial findings revealed among other things that:
• A 'juvenile' offender is a person under 18
• Almost 50% of the population is under 16
• More than 50% of the juvenile in custody claim that one or both parents are
dead
• 40% claim they were attending school at the time of arrest
• 63% claim they were beaten and/or subjected to abuse at arrest
• 35% of juveniles are in custody for serious offences (murder, burglary, rape
and robbery)
• 2% claimed that they had legal advice in two prisons, and 15% in another.
• 89% of the warrants in one prison were invalid, and 72% in another (no data
on the third)
• For those whom bail was considered, this ranged from a high of 11% of
cases in one prison, to a low 3% in the third
• Separation of the juvenile offenders from adults was poorly supervised
• There was a problem of sexual abuse and there was proof of
documentation
• There were no recreation facilities
• Approved schools (Chilwa and Mpemba) operating at 50% below
capacity

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That is not to say that the Malawi Government did not put in place a
number of Polices and Laws to curb child abuses. Legislative
interventions included ratification of International, Continental and
Regional treaties, Conventions and Protocols. Some of the international
instruments include the Convention of the rights of Children (CRC) which
was ratified by the Malawi Government in 1991. It is viewed as the most
‘complete’ human rights treaty that relates to children in that it covers
virtually all the civil, political, social and cultural rights of children. It also
emphasises that children are holders of rights, and their rights cover all
aspects of their lives.

The other international legal instruments that the Malawi Government

ratified, which may have direct or indirect bearing on children’s
attainment of their rights, include:
• The 1966 International Covenant on Civil and Political Rights
(CCPR) reiterates the principle of separation of young prisoners
from adults in custodial facilities and for adults and juveniles alike,
the separation of accused from the convicted as provided in the
1955 Standard Minimum Rules for the Treatment of Prisoners.

• The Convention on the Elimination of Discrimination Against

Women, (ratified 1987);
• The International Labour Organization (ILO) Convention 182 on
Child Labour, (ratified 1998);
• The African Charter on the Rights and Welfare of the Child, (ratified
1999);
• Optional Protocols to the CRC on the Sale of Children, Child
Prostitution and Child Pornography, (ratified 2000);
• Optional Protocols to the CRC on the Involvement of Children in
Armed Conflicts, (ratified 2000);
• UN Declaration of Commitment on HIV/AIDS (ratified 2001) which
emphasises that the vulnerable must be prioritised in the response
to the epidemic.

It is paramount to note that most of the laws and policies that have been
enacted and developed in Malawi are an attempt to domesticate
these international legal instruments that Malawi has signed and ratified.

The Malawi Republican Constitution, under Chapter 3 of the

Constitutions provides for the fundamental principles upon which the
Constitution is founded. One of the principles is the Education and
Development of Children in Malawi. The Constitution provides for equal
treatment of all children before the law. However, the first constitutional
on the provision of protection of all children in the Country is made
Chapter 4, in Section 23.

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The Acts of Parliament that are in place which have clauses related to
care and protection of children from all forms of abuse include: The
Children and Young Persons Act (CYPA), Probation of Offenders Act; The
Affiliation Act, Cap. 26:02; The Maintenance of Married Women Act: The
Wills and Inheritance Act; The Adoption Act; The National Identification
and Registration Act; The Prevention of Domestic Violence Act; National
Youth Council of Malawi Act; The Children’s Homes Act; The Penal Code
Act; The Human Rights Commission Act; The Disability Act; and the Child
Care, Protection and Justice Act.

Prior to June 2010, Malawi did not have comprehensive legislation on

child justice. Provisions relating to children were spread out in various
pieces of legislation (as demonstrated in the paragraph above). In
addition, most of these laws were archaic and did not conform to most
provisions and standards of the UN International Convention on the
Rights of the Child (CRC). Hence the coming in of The Child Care,
Protection and Justice Act (2010) (CCJPA)which enhances the provision
of services for care, protection and support of vulnerable children.
Basically, the law broadly focuses on these areas:
(i) Children in need of care and protection (part II)
(ii) Children in conflict with the law or suspected to have
committed offences (parts III to VIII),
(iii) Issues of interpretation and general implementation measures
are dealt with in parts IX to X.

It is clear that the CCPJA modernizes the country’s Child Justice System
by putting emphasis on rehabilitation and reintegration of child
offenders; protecting children in need of care; and upholding the best
interests of the Child. It also enhances local capacity to protect children,
particularly those at risk of deprivation, abuse, neglect and violence.
Under part VI of the Act is the establishment of the Child Justice Court
and it must be noted that this signifies a great advancement in the child
and/or juvenile justice system in Malawi.