Last week I was given a list of ten names. All of these names belonged to homocide remandees at Chichiri prison, whose cases had been heard in 2010, but due to judicial strikes, huge case backlogs and an under resourced legal aid department, were still awaiting judgement.
My first port of call was to the ever helpful Boxten, a remandee since 2006 who is always more than willing to offer his assistance. I needed to confirm that the ten prisoners were still alive, had not been transferred to an alternative prison or been lucky enough to escape! Two of the names on the list had been moved, one to Mulanje prison and the only female prisoner Stelia, had been moved to Mpemba Reformatory Centre for juveniles. Mpemba was until very recently an institution for boys; female juveniles were imprisoned in the female sections of the adult prisons until Mpemba decided to open their doors to girls a couple of months ago – http://www.malawivoice.com/2012/07/22/no-more-boys-home-mpemba-reformatory-centre-starts-accommodating-girls-56029/
I reported back to legal aid and offered to travel to Mpemba to interview Stelia and gather evidence for the mitigation submissions we would present to the judge. I took the case file with me on to pick up Mac, a paralegal at CHREAA, who had brought the outstanding judgements to my attention. After a brief look at the documents in Stelia’s case file I noticed that in her caution statement it stated she was 18 years old when arrested. I had assumed that she was a juvenile due to the fact she had been moved from the adult prison to the reformatory centre, so during the car journey I discussed this with Mac. He informed me that uncertainties surrounding age are common in Malawi and throughout sub-saharan Africa, due to the fact that most people do not record the date of birth of their children.
Arriving at the centre I was pleasantly surprised by the surroundings. The other juvenile centres I have visited in Malawi are very similar to the adult prisons with high walls, barbed wire and formidable looking prison guards. Mpemba however, was completely open, with the boys playing football in the huge fields and the girls living together in a separate hostel. Mr. Navicha has run the centre with Mrs Chuza since 2006 and both are truly enthusiastic about creating a safe environment for juveniles to reform.
When I was introduced to Stelia I was shocked by how young she looked and further shocked when I met her two year old daughter Faith. During the course of the interview I tried to ascertain her age. Stelia thought she was 12 – 13years old when she had her first daughter, which would make her 15 – 16 years old now. As a result of the police stating her age as 18 on the caution statement and a lack of proper age assessment by her lawyer, Stelia has been tried for murder as an adult; it is therefore possible for the Judge to sentence her to the death penalty.
I wanted to know who had made the decision to transfer Stelia to the juvenile centre and was comforted when the female wardens at Chichiri prison informed me that the decision was made by the Head Magistrate, Mrs Tembenu, at Soche Child Justice Court. I arranged to meet with her to ask her if she could provide in writing the reasons she had decided to transfer Stelia to a juvenile instiution, to provide as supportig evidence to the Judge in asking him re-try Stelia as a child. Mrs Tembenu, clearly enthusiastic about a justice system which treats children in accordance with international standards, empathised with the predicament and kindly offered to send her probation officer to Mpemba to prepare a report assessing her age and progress at the reformatory centre.
I called my friend who is a pediatrician at the main hospital in Blantyre who explained to me the procedure for age assessment in Malawi. The assessment of bone age is most commonly based on x-rays of the hand and wrist and is often accompanied by a further physical examination. After reading a discussion paper by UNICEF, I discovered that bone x-rays are thought to be a particularly unreliable method for those aged 15-18 years. UNICEF also states that “Socio-economic background and nutrition have however been identified as factors that can influence the chronological age estimations made using bone age tests.”, making age assessments even more unreliable in a devastatingly poor country like Malawi.
The UN Committee on the Rights of the Child states that “age assessment procedures should only be undertaken as a measure of last resort, not as standard or routine practice, where there are grounds for serious doubt and where other approaches, such as interviews and attempts to gather documentary evidence, have failed to establish the individual’s age.” Perhaps, given the cost and resource implications of assessments that rely on medical examinations, social assessments which utilise local knowledge about the child and the expertise of those running successful government funded reformatory centres, like Mpemba, should form the basis of all age assessments in Malawi.
I will draft a mitigation submission to the Judge based on the uncertainty surrounding Stelia’s age, however the Judge’s recess is not over until the end of September. We will have to wait till then to see the outcome for Stelia.