Lawrence (on behalf of JM - minor) v The Inspector General of Police (Judicial Review Case 18 of 2024) [2025] MWHCCiv 9 (19 June 2025)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL DIVISION JUDICIAL REVIEW CASE NO. 18 OF 2024 (Before Honourable Justice Mambulasa) IN THE MATTER OF SECTION 19 AND 42 (1) AND (2) OF THE CONSTITUTION -AND- IN THE MATTER OF SECTION 89, 90 AND 97 OF THE CHILD CARE, PROTECTION AND JUSTICE, CAP. 26:03 OF THE LAWS OF MALAWI -AND- IN THE MATTER OF AN APPLICATION ON BEHALF OF JM (A MINOR) BETWEEN: CHRISSY JOHN LAWWRENCE (ON BEHALF OF JM, A MINOR) …….….……………………………………………………...….……. CLAIMANT -AND- THE INSPECTOR GENERAL OF POLICE….………………. DEFENDANT CORAM: HON. JUSTICE MR. MANDALA D. MAMBULASA Mr. Bob Chimkango, Advocate for the Claimant Ms. Uza Kaime, Advocate for the Claimant Mr. Ndoli Chiume, Advocate for the Defendant Mr. Bernard William Mbalati, Advocate for the Defendant Ms. Caroline Machado, Official Court Interpreter/Court Clerk Mrs. Elizabeth Banda, Recording Officer/Court Reporter ORDER MAMBULASA, J [1] This is a judicial review proceeding which was coming up today, 19th June, 2025 for substantive hearing. [2] During the Scheduling Conference which was held on 29th April, 2025 this Court was called upon to determine the following issues: 2.1 Whether or not the Defendant subjected the Claimant to corporal punishment, torture, cruel, inhuman or degrading treatment which resulted in serious and permanent injuries and loss of limbs contrary to section 19 (3) and (4) and 42 (1) (b) and 42 (2) (g) (iii), (iv) and (v) of the Constitution? 2.2 Whether or not the Defendant informed the Claimant of his rights upon detention as required by section 42 (2) of the Constitution and section 90 (a) of the Child Care, Protection and Justice Act? 2.3 Whether or not the Defendant failed or neglected to promptly inform the Claimant’s parent, guardian or appropriate adult of the Claimant’s arrest contrary to the requirements of section 90 (h) of the Child Care, Protection and Justice Act? 2.4 Whether or not the Defendant failed or neglected to separate the Claimant from adult offenders during detention and thus acted ultra vires section 42 (2) (g) (iii) of the Constitution and section 90 (e) and 97 of the Child Care, Protection and Justice Act? 2.5 Whether or not the Defendant failed or neglected to provide the Claimant with or allow him access to nutritious food during detention contrary to the requirements of section 42 (1) (b) of the Constitution and section 90 (f) of the Child Care, Protection and Justice Act? 2.6 Whether or not if the Court finds in favour of the Claimant on any of the above issues, it can order compensation in line with section 46 (4) of the Constitution? 2.7 Whether or not the Claimant is entitled to an order as to costs? [3] Advocate Mr. Ndoli Chiume for the Defendant addressed the Court that they had now received instructions from the Malawi Police Service informing them that they should seek an out of court settlement of the matter and that after consulting with the Claimant’s advocates, they were agreeable to such an arrangement, subject to their confirmation. [4] Advocate Mr. Bob Chimkango for the Claimant confirmed the arrangement and prayed to the Court that it exercises its discretion to grant the declarations his client was seeking so that the Order forms the basis for the negotiation and the arrangement. [5] In view of the foregoing this Court proceeds to grant the reliefs sought in Form 86A by the Claimant as follows: 5.1 It is hereby declared that the Defendant’s use of excessive harsh action amounted to torture, cruel, inhuman and degrading treatment in apprehending and detaining the Claimant when there was no resistance on his part and was therefore unlawful and unconstitutional; 5.2 It is hereby declared that the Defendant’s failure to inform the Claimant of his rights upon detention was unlawful and unconstitutional; 5.3 It is hereby declared that the Defendant’s failure to promptly inform the Claimant’s parents or legal guardian or appropriate adult of the Claimant’s detention as required by law was unlawful and unconstitutional; 5.4 It is hereby declared that the Defendant’s failure to separate the Claimant from adult offenders during detention was unlawful and unconstitutional; 5.5 It is hereby declared that the Defendant’s refusal to provide the Claimant or allow him to access nutritious food during detention was unlawful and unconstitutional; 5.6 A like order to mandamus is hereby granted compelling the Defendant to always comply with sections 19 and 42 of the Constitution and sections 89 and 90 of the Child Care, Protection and Justice Act when dealing with children in conflict with the law; 5.7 It is hereby declared that the serious and permanent injury and loss of limb suffered by the Claimant was solely due to the treatment he suffered at the hands of the Defendant by his officers’ action and inaction and that the Claimant is thereby entitled to compensation by the Defendant; and 5.8 The Claimant is also awarded costs of these proceedings. [6] Compensation and costs payable shall be agreed by the parties. In the event that the parties are unable to agree, then, the Registrar of this Court shall assess them. [7] Made in open court this 19th day of June, 2025 at Blantyre, Malawi. JUDGE M. D. MAMBULASA 6