Esmie Tembenu is a retired children’s magistrate. Recently, she registered a new organisation, the Family Rights, Elderly and Child Protection (Frechip) Trust. KONDWANI KAMIYALA talked to her, dwelling much on the presence of children in prisons for young offenders. Excerpts:
There are already many organisations dealing with children’s issues. Why are you relevant?
The problem in our country is that in most cases we are only focusing on responding to issues that have already happened. Our organisation is dealing mainly with prevention and responding to issues to do with child abuse. We are talking about abuse of any kind, whether physical, emotional, economical or sexual abuse. What we are saying is that, as Malawians when we receive a child who has been brought to us, and if that child is an offender or a victim, the first thing is we have to make sure that we have provided care and protection to the child before we work on the justice issues.
Our organisation is also implementing the Child Care, Protection and Justice Act as well as enforcing it. What I am trying to say is that it will prevent children from being abused. Then, maybe, we won’t be talking about child abuse. But if we focus on giving answers while the child has already been abused, we are doing nothing.
Children are not supposed to be convicted or sentenced. Yet there are children in our prisons. What do you say?
According to the law, it is illegal to keep children in prison. It is illegal to send children to any prison. First and foremost the Child Care, Protection and Justice Act, in particular section 134 is providing that all children matters shall be heard in a child magistrate. Now, the law doesn’t say that when a child has committed a more serious offence then they have to be taken to another court. That is the more reason why the Malawi Government decided to establish children’s courts in Malawi so that the children are tried separately from adults and they are offered the required maximum protection. So that the children are no longer seen in our prisons, because section 140 of the same Act is saying no child shall be imprisoned. If the law is saying no child shall be taken to prison, why should a court send a child to prison? That is child abuse.
How will the Trust offer protection?
The Frechip Trust is there to offer protection to children. Where a child has been detained in prison, we will be blowing a whistle to the authorities, so that they can immediately take action of removing the children from prison walls and either release them or send them to reformatory centres which were established to deal with the issues.
What is the difference between a young offenders’ prison like Bvumbwe and a reformatory like the one in Mpemba?
Reformatory centres are established under the Child Care, Protection and Justice Act. Prisons are established under the Prisons Act. The two reformatory centres in Malawi—Bvumbwe and Lake Chilwa—are for children and the caretakers there are not prison warders. They are social workers who take care of the children. Mpemba accommodates boys that are 14 and below and girls who are 18 and below. The law states further that no child below 10 should be sent to a reformatory centre or be given a custodial sentence unless there are special circumstances. Chilwa Reformatory Centre is for children aged between 14 and 18. Young offenders’ prison is not for children; I understand it is for those aged between 18 and 21 not anyone below.
How was it like in the past?
In the past there was no law to protect children from prison. If a child was perceived to be difficult and of a depraved character, that child could be sent to prison. But today, the law says no child shall be sent to prison.
Can children who are habitually in conflict with the law be sent to prison?
No, the law does not stipulate that. A reformatory centre is not a prison, it is a home for children in conflict with the law; a home for problem children. If the child is reoffending, you have to send him or her back to their home, where they can receive counseling. Children are not supposed to go where they will be punished. So whether a child is reoffending or not, where need arises, the child must be sent to a reformatory centre. When a child reaches 14 while at Mpemba, they will automatically be switched to Chilwa. If that child is not reformed, they will be at Chilwa up to the age of 18. In most cases, most children do not reach that extent. They reform, mostly.
What is wrong that children are being found in prisons like Bvumbwe?
Looking at the experience I had when at the children’s court, children are at times sent to young offenders’ prison because in Malawi we don’t have enough reformatory centres. There are only two. Some are placed in the young offenders’ prisons for remand. But, I am sorry to mention this, some officers don’t want to accept changes. Because even where the law says children should be tried in a children’s court, you still see some prosecutors taking children to adult courts. You find some magistrates trying the children, convicting them and sending them to prison. I feel inspection officers have to do their job and report to the chairman for the child justice forum. The chairperson and his counterpart at the case review board will engage other members to see if the children will be released or be transferred to reformatory centres.
We hear of congestion in Malawi prisons. Could we say the reformatory centres are filled up that children have to be sent to a young offenders prison?
You will be disappointed to learn that Mpemba and Chilwa are not full. I even wonder why some officers are still sending children to prison. I don’t know if they have that child-friendly mind. It is most disheartening that a child can be convicted in Chitipa and they travel or the way and taken to Bvumbwe and you know what happens in prison. It is like sending them to a university where they learn how to become more hard core. As Malawians, child protection workers we need that passion to rehabilitate and reform the child, not punish them. There are so many ways to reform children.
There is what we call diversion of children. Where a child has committed a minor offence, they have to be diverted from the criminal justice system and be given an option which will make them accountable for the offence. This option is an alternative to sending the children to a reformatory centre. Under the diversion programme, the child and their guardian through intermediaries apologise to the offended and repair the damages. The children can be placed under intensive counseling. They can be sent to a diversion institution and be given vocational skills. They can just be warned against repetition of the offence. There are so many ways. But where the child has to be taken out of the community, the right place is the reformatory centre. Or else, a relative can be identified to keep the child. The relative has to counsel the child.
As a Trust, what are the plans?
We want first and foremost to find funds. Then, we will collaborate with the judiciary and train the newly appointed child protection officers. We will work together with the social welfare department, the police. It is clear that some of the people that were previously trained on child protection have been transferred or are promoted. What is happening now is that they are just picking people without orientation and training. We would love to orient all child protection officers in the child justice system: from the court marshal, clerk, judicial officer, child prosecutor, child justice…
Any other comments?
We are reminding those working with children should be mindful of section 88 of the Act which provides that any court dealing with children should put into account the welfare and best interest of the children by removing them from undesirable circumstances and find a proper place for them where they can be given good accommodation, education and training. What I am saying is, if there are children in prisons, let authorities work to remove them and place them in the desirable places.—Read more about children in prisons in Nation On Sunday’s special report tomorrow.