By Burnett Munthali
In Malawi, the question of whether a 17-year-old can be held legally accountable for criminal conduct is addressed through a careful balance between upholding the rule of law and protecting the rights of children.
This issue is anchored in constitutional provisions, statutory law, and international commitments Malawi has made toward the promotion and protection of children’s rights.
Constitutional framework: Section 23 of the republican constitution
The Constitution of Malawi, adopted in 1994, is the supreme law of the land and provides clear protection for children, defined as individuals below the age of 18.
Section 23 of the Constitution states:
“All children shall have the right to know and be cared for by their parents, to be protected from economic exploitation or any treatment, work or punishment that is, or is likely to be, hazardous, interfere with their education, or be harmful to their health or physical, mental or spiritual or social development.”
In particular, Section 23(3) makes provision for children accused of crimes:
“Children are entitled to be protected from any treatment, or punishment that is cruel, inhuman or degrading and shall not be subjected to corporal punishment in schools or any other institution.”
Further, Section 23(4) ensures that:
“In all actions concerning children, whether undertaken by public or private welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be the primary consideration.”
Thus, while the Constitution recognizes that children can be subjects of criminal proceedings, it demands that any such process must be centered on the child’s rights and best interests.
This legal framework ensures that children, including 17-year-olds, are held accountable in ways that promote rehabilitation rather than retribution.
The child care, protection and justice act (2010)
The Child Care, Protection and Justice Act (CCPJA) provides the most comprehensive statutory framework for dealing with juvenile offenders in Malawi.
It affirms that children under the age of 18 are subject to different procedures from adults in the justice system.
Key provisions of the Act include:
Section 80: Establishes the Child Justice Court, which has jurisdiction over cases involving child offenders.
This court operates with a child-sensitive approach and applies principles of restorative justice.
Section 83: Provides that a child shall not be subjected to the same procedures as adults in arrest, detention, and trial.
This means that a 17-year-old must be handled through a process that safeguards their rights and dignity.
Section 89: Requires that diversion programs be considered before formal charges are laid.
This provision encourages non-custodial solutions such as counseling, community service, or reconciliation with the victim.
Section 91: Protects child offenders from life imprisonment or the death penalty.
Even if a child aged 17 commits a serious offense, the sentencing must reflect the child’s age and potential for reform.
Section 93: Emphasizes rehabilitation, reintegration, and education as the goals of sentencing for children.
Age of criminal responsibility in Malawi
According to the Child Care, Protection and Justice Act, the minimum age of criminal responsibility in Malawi is 12 years.
Children aged between 12 and 18 can be held criminally liable, but with a presumption that they may not fully understand the consequences of their actions.
Therefore, 17-year-olds can indeed be tried in court if they commit a crime, but they must be tried in a Child Justice Court and benefit from the protective procedures applicable to minors.
International commitments
Malawi is a signatory to several international legal instruments that influence its juvenile justice system, notably:
The United Nations Convention on the Rights of the Child (CRC)
The African Charter on the rights and welfare of the child
Both instruments emphasize the need for child-friendly justice systems that prioritize the rehabilitation and reintegration of juvenile offenders into society.
The CRC, for example, under Article 40, obliges states to ensure that children accused of crimes are treated in a manner that promotes their dignity and worth and encourages reintegration.
Practical challenges
While the legal framework is sound, the practical implementation of these laws faces numerous challenges in Malawi.
Some of the problems include:
Inadequate infrastructure: There are limited Child Justice Courts and specialized personnel to handle juvenile cases.
Pre-trial detention: Many 17-year-olds end up in police cells or prisons with adults due to lack of proper facilities.
Delayed justice: Cases involving juveniles often suffer from the same judicial delays that affect the broader justice system.
Stigma and social rejection: Once a juvenile has passed through the justice system, they often face discrimination and social exclusion, limiting their chances for reintegration.
Recommendations
To ensure that the rights of 17-year-olds in conflict with the law are upheld, several measures can be considered.
First, strengthen the Child Justice System by expanding access to Child Justice Courts and training more child-friendly magistrates and police officers.
Second, enhance diversion programs to reduce the number of children going through formal criminal processes.
Third, improve detention facilities to ensure children are not held with adults and that they receive appropriate care and education while in custody.
Fourth, public education and awareness should be promoted to reduce stigma and promote community involvement in rehabilitating child offenders.
Conclusion
In conclusion, Malawi’s legal system recognizes that while children aged 17 can be held accountable for crimes, they must be treated differently from adults.
The constitutional and legal frameworks stress rehabilitation, protection of rights, and reintegration over punitive measures.
However, there remains a pressing need for the state and its institutions to fully implement these laws in practice, ensuring that no child’s future is permanently derailed by a mistake made in youth.
The juvenile justice system should be both a shield and a compass — protecting children from harm while guiding them back onto the path of responsible citizenship.
