The State (ex parte Stanford Kashuga) v. the Second Grade Magistrate Court (Thyolo) and Malawi Prison Service
The High Court of Malawi
4 February 2015
Article 1: Definition of a child
Other International Provisions:
African Charter on the Rights and Welfare of the Child, Article 2: Definition of a child
Constitution of Malawi, sections 13(h), 22(7), 30 and 42(2)(g) (on the age of majority and protections available to children)
Constitution of Malawi, sections 5, 10, 44 and 46 (on supremacy of the Constitution)
Constitution of Malawi, sections 11 and 41(3) (on the right to effective remedy for violations of rights under Constitution)
Child Care Justice and Protection Act, section 2 (on the age of being considered a child for application of protection under this law when a criminal defendant)
Child Care Justice and Protection Act, sections 33, 133(3), 135, 136, 140, 141(1), 145 and 146 (on the requirements for the manner of conducting a trial of a child)
Presidential and Parliamentary Elections Act, section 15 (on the age of eligibility to vote)
Stanford Kashuga (the applicant), aged 16, was convicted of burglary and sentenced to 4 years in prison. His trial was conducted without any of the protections available to children because the Child Care Justice and Protection Act defines a child as a person under the age of 16. In the current case, he argued that the court that tried him acted without jurisdiction and violated its obligations to treat him as a child under the age of majority defined in the Constitution.
Issue and resolution:
Juvenile justice proceedings. The court held that the applicable age of majority should be 18, struck down the lower age of majority in the Child Care Justice and Protection Act section 2, and remitted the matter to the lower court for further proceedings in accordance with the Child Care Justice and Protection Act.
The Constitution sets the age of majority at 18, and has supremacy over acts of parliament. Accordingly, section 2 of the Child Care Justice and Protection Act is invalid to the extent it limits the right to treatment reflecting the special needs of children to persons under 16 years old.
Excerpts citing CRC and other relevant human rights instruments:
“He [the applicant] referred to Article 1 of the Convention on the Rights of the Child (CRC) which defines a child as a person under the age of 18 but allows exceptions to be prescribed by law of the relevant nation. He further referred to Article 2 of the African Charter on the Rights and Welfare of the Child which defines a child as every human being below the age of 18. He also observed that the African Charter on the Rights and Welfare of the Child has been described as the most progressive of all treaties on the rights of the child as it does not give exception to the age limit.”
Based on this ruling the High Court ordered the review of over 400 cases of 16 and 17 year olds sentenced as adults since 2010.
CRIN believes this decision is consistent with the CRC. Article 1 of the Convention requires to treat anyone under the age of 18 as a child, unless national law provides a lower age. All children are entitled to the rights and protections enshrined in the Convention and in no circumstances should children be deprived of any of those rights and protections before they reach the age of majority.
Miscellaneous Civil Cause Number 129 of 2012
Link to Full Judgment:
Available on request.
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.