Evance Moyo v. Attorney General
(High Court of Malawi sitting as the) Constitutional Court of Malawi
August 26, 2009
Other International Provisions:
International Covenant on Civil and Political Rights (Article 10 - Deprivation of Liberty)
Children and Young Persons Act (Section 4 - Regard for Education and Training of Arrested Children; Section 11 - Inapplicability of Capital Sentences on Children; Section 31 - Detaining of Children)
Malawi Constitution (Section 11 - Interpretation of the Constitution; Section 42 - Rights of the Detained; Section 211 - Constitutional Effect of International Agreements)
16-year-old Evance Moyo was arrested in August 1997 on suspicion of having committed murder. He was incarcerated with adults until he turned 20, at which point his case went to trial and he was convicted. The usual mandatory death sentence for persons convicted of murder did not apply to Moyo since he was a juvenile at the time of the offense; instead, he was ordered to be detained indefinitely “at the pleasure of the President."
Issue and resolution:
Juvenile justice; detention. The Court found that Moyo’s right not to be detained with adults had been violated, and ordered his immediate release. The Court did not find that sentences of detention “at the pleasure of the President” were unconstitutional, but did suggest that further interpretive guidance on these sentences be issued to ensure that they did not always result in imprisonment for life.
On the failure of the government to separate Moyo from adult offenders, the Court noted that the Constitution clearly prohibits the incarceration of juvenile offenders alongside adults and that the government is further required by the Children and Young Persons Act to uphold the welfare of children at all times. As a result, the Court reasoned that Moyo’s incarceration with adults before and after his trial was a blatant violation of his fundamental human rights and freedoms. In reaching this determination, the Court also looked to the CRC’s provisions on best interests and juvenile justice standards as instructive and binding on Malawi, although not directly enforceable in the courts. As for imposing sentences of detention “at the pleasure of the President” on juvenile offenders, the Court suggested that this could be problematic in giving the President a power that would usually be exercised by judges. The Court did not find that sentencing children to be detained indefinitely would be unconstitutional in all cases, but did hold that safeguards should be enacted to ensure that indefinite sentences would not be essentially equivalent to life sentences.
Excerpts citing CRC and other relevant human rights instruments:
“In the matter at hand the applicant was 16 years when he was arrested and incarcerated. He was therefore a juvenile and ought to have been treated with due regard to his welfare and steps should have been taken to remove him from undesirable surroundings, and for securing that proper provision is made for his education and training (refer S. 4 of the Children and Young Persons Act). The applicant in blatant disregard of his welfare and his special needs as a juvenile, he was remanded at Chichiri Maximum prison in Blantyre and he was incarcerated in the adult section of the prison. This only came to light during his trial. The primary consideration in dealing with a juvenile whether in criminal matters, or adoption or custody proceedings is what is in the best interest of that child or juvenile. This is the trend followed internationally as provided in various international instruments to which Malawi is a party. The Convention on the Rights of the Child to which Malawi is a party in its Article 3 provides as follows: ‘In all actions covering children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’
Malawi having acceded to the CRC on 2nd January, 1991 the said Convention is binding on Malawi and all public or private institutions in this country. As already alluded to herein, the Court as provided for in section 11 (2) (c) of the Constitution in interpreting the provisions of the Constitution, should have regard where applicable, to current norms of public international law and comparable foreign case law. Otherwise the provisions of our Constitution and statutes should be the first port of call. Section 211 of our Constitution as amended by Act No. 13 of 2001 stipulates as follows:
‘(1) Any international agreement entered into after the commencement of this Constitution shall form part of the law of the Republic if so provided by or under an Act of Parliament.
(2) Binding international agreements entered into before the commencement of this Constitution shall continue to bind the Republic unless otherwise rovided by an Act of Parliament.
(3) Customary international law, unless inconsistent with this Constitution or an Act of Parliament, shall form part of the law of the Republic.’
In dealing with the incarceration of the applicant consideration should have been had to the welfare or best interests of the juvenile. The CRC refers to the best interests of the child principle whereas the Children and Young Persons Act refers to the welfare of the child. Whether one talks about the best interests of the child or the welfare of the child they mean the same thing. (see MSCA Adoption Appeal No. 28 of 2009: In the Matter of Chifundo James). And further on the applicability of the international agreements or convention the case of S. Kalanda -v- Limbe Leaf Tobacco Ltd, Civil Cause No. 542 of 1995 is enlighting when Mwaungulu, J stated thus on p.8:
‘The second view is that binding international agreement before 1994 became part of our law by operation of the Constitution. The uncertainty in section 211 before the amendment is cured by the amendment. Section 211 (1) as amended expressly states that international agreements entered after commencement of the Constitution shall form part of our law by domestic legislation. If it meant prior international agreements required domestic legislation, the Constitution would in section 211 (1) have added qualifications to the effect that all international agreements before 1994 would, like the ones after, need domestic legislation. The Constitution restricts the requirement to legislation after commencement of the Constitution. On the face of it the Constitution excludes prior international agreements in section 211 (1). In my judgment, the Constitution in section 211 (2), stresses the non — requirement of domestic legislation for international agreements prior to the commencement of the Constitution. Moreover, if it was meant that domestication by legislation apply to international agreements prior to 1994, the Constitution would expressly have said so in section 211 (2) having omitted it in section 211 (1). This interpretation bases on the construction of section 211 before and after the amendment. It is not based on an external premise.’
The CRC is therefore applicable and binding on Malawi. However, the provisions of section 42 (2) (g) of our Constitution and the Children and Young Persons Act are not in conflict but rather they complement each other. Our Constitution in section 42 (2) (g) (iii) as earlier alluded to prohibits incarceration of juveniles / children with adults and section 4 of the Children and Young Persons Act complements the Constitution by requiring that the welfare of the child be upheld at all times. We therefore find that the incarceration of the applicant with adults before and after his trial is a blatant violation of his fundamental human rights and freedom under our Constitution and is contrary to the Convention on the Rights of the Child and other international Convention on child rights as well as the provisions of the Children and Young Persons Act.”
CRIN believes that this decision is largely consistent with the CRC. Article 37 of the CRC mandates that “every child deprived of liberty...be separated from adults”, and in this sense the Court's ruling is clearly correct. The Court would also have been wise to consider Article 37 during its discussion on indeterminate sentences, as the Convention further states that detention “shall be used only as a measure of last resort and for the shortest appropriate period of time.”
Evance Moyo v Attorney General, Constitutional review, Constitutional Case no 12 of 2007
Link to Full Judgment:
This case summary is provided by the Child Rights Information Network for educational and informational purposes only and should not be construed as legal advice.