Ndalakwanji Victor is one very lucky pickpocket. Two months ago she was convicted on theft charges, having stolen purses and jewellery from a couple of women at a mall. Arrested and tried the next day, she pleaded guilty.
The magistrate who heard her case convicted her and sentenced her to six months in prison with hard labour, a sentence subject to confirmation by the high court.
Judge Zione Jane Ntaba who received the case, noted that it was brought for review on the very same day as the conviction in the lower court because the woman was heavily pregnant. Judge Ntaba was particularly asked to ‘review the appropriateness of giving a custodial sentence to a pregnant woman.”
She said that a reviewing court ‘should examine all issues on the court record, that is, a re-examination of the entire trial process.’ She found no problem with the conduct of the trial and the conviction. But she made several observations about the case. She noted that a third count of theft was withdrawn by the complainant in that matter, as the woman concerned decided to show mercy on Victor because of her pregnancy. Compared with this, the prosecutor specifically asked for a custodial sentence.
In her sentence analysis, the magistrate said that Victor had raised the question of her pregnancy. However, said the magistrate, ‘the convict should have considered her responsibility before committing the offence’, adding that Victor ‘should have thought twice as she would still be imprisoned.’
Judge Ntaba said it was clear that the woman was a first offender. Moreover, she pleaded guilty, was pregnant and at 26 was relatively young. The value of the property stolen was not excessive and some of it had been recovered. Against this, the offence was rampant in that particular area and Victor had more than one count against her. The aggravating factors were, however, not enough to warrant a custodial sentence, said the judge.
Malawian courts have stressed that according to the Criminal Procedure and Evidence Code, first-time offenders should be considered for non-custodial sentences and thus spared ‘the horror of prison life’. But in addition to the fact that Victor was a first offender, the question of whether a custodial sentence is appropriate for ‘a pregnant person’ raised a further ‘major issue’, said the judge, and it should be a matter that concerned every judicial officer when it comes to sentencing.
The issue had been highlighted by prison inspection reports, including some written by Judge Ntaba herself, that concluded: ‘incarcerating a woman with her child should always be the last resort for any court.’
She noted the 2010 UN Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), stressing that these rules clearly stated non-custodial alternatives were to be preferred to detention both before trial and as sentences.
Custodial sentences should only be considered ‘when the offence is serious or violent or the woman represents a continuing danger, and after taking into account the best interests of the child or children, while ensuring that appropriate provision has been made for the care of such children.’
According to Judge Ntaba, the facts of this particular case – that the woman was a first offender and that she was in an advanced state of pregnancy – did not justify a custodial sentence.
‘Let it be added that Malawian prisons do not have a policy (or) proper health care facilities for dealing with pregnant women or infants. Evidence has shown that they also struggle when it comes to women who are incarcerated with their children.’
‘Courts are reminded that in Malawi we are still struggling with infant mortality rates as well as maternal mortality rates and the numerous health challenges for women are further exacerbated by imprisonment. The Court also takes judicial notice that there are issues with incarcerating children with their mothers, effects of such are still being studied and it is imperative that as Malawian courts we do not forget the best interests of the child.’
Judge Ntaba said it was necessary to ‘admonish’ the magistrate who heard the case, for ignoring the law. It had become common to ignore the Code ‘and the magistrate is called to take note of this judgment and do better in future.’
‘This admonition should also go to other magistrates’ who are making the same mistake, and they should be told ‘that they need to do better’ in adhering to the law.
She said it was her considered opinion that the fact that the magistrate did not properly consider the relevant sections of the Code, made the sentence ‘ineffective’.
Turning to the accused, the judge said that her conduct in stealing the goods was ‘unconscionable and inconsistent with the conduct one would expect of a responsible expectant mother. It is my hope that this will be the only time to find herself in the criminal justice system.’
The judge reduced the sentence to time served, because in her view, the sentence should have been suspended, and ordered that Victor should be released immediately.