Evance Moyo Judgement Handed Down in Malawi

Evance Moyo was arrested and detained in 1997, when he was only 16, accused of murder. Malawi’s law provides that juveniles, sentenced for homicide crimes, are sentenced at “the pleasure of the President”. But while Mr Moyo should have been sent to an approved school, where a “board of visitors” would have assessed his progress and made recommendations as to his continued detention, he was, in fact sent, to Chichiri prison – notorious for its overcrowding and appalling conditions. His entire period of detention and imprisonment has not seen him separated from adult inmates, as is required under international law.

The judgment of the Constitutional Court orders his release, particularly welcome as he has been seriously ill with TB these past months, and finds that his constitutional and international law rights were violated, in respect of not being accorded the special treatment owed juvenile prisoners. In this the judgement represents a victory for human rights in Malawi and the region. The Court also found that the convention on the Rights of the Child had been domesticated into Malawian law.

But the judgement never addresses the crucial arguments made by the Centre for Human Rights, Education, Advice and Assistance (CHREAA) turning on the separation of powers doctrine – that sentencing is an integral part of trial and that a trial cannot be independent if the President gets to determine sentence, and that the “at the pleasure of the President” provision amounts to interference of the executive in the province of the judiciary.

And, having waited seven months for delivery, the judgement is inexplicably short. We’ll post it soon on SALC’s website.