The Applicant was pregnant at the time of her arrest and gave birth in August 2015. During her trial in the lower court, the Applicant was not represented and as such she did not appreciate the importance of bringing the issue of her pregnancy before the court so that it could be taken into consideration in sentencing. In the lower court, the Applicant did raise the fact that she was already a mother to a three year old in mitigation of sentence but the court did not take any consideration of that child’s best interests in reaching its decision to give a custodial sentence.
Until now, the Applicant’s case has not been reviewed in terms of the mandatory provisions of section of 15 of Malawi’s Criminal Procedure and Evidence Code and the sentences remain unconfirmed.
“Prison is not an ideal place to raise a baby”, said Prisoner’s Rights Activist and Centre for Human Rights Education, Advice and Assistance (CHREAA), Executive Director, Victor Mhango. “This is especially concerning because, this mother may be serving an illegal sentence as her case has not yet been reviewed”.
“International guidelines recommend taking into account the best interests of the child in decisions relating to incarceration of caregivers and generally encourage non-custodial arrangements for women with young children where possible and appropriate,” said Ms Nyasha Chingore of the Southern Africa Litigation Centre which supported the case.