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Malawi court to hear argument on decriminalising sex between minors

- Lee-Anne Bruce

CALS hopes to assist the High Court of Malawi sitting as the Constitutional Court in a matter that raises important issues around children's rights

The Centre for Applied Legal Studies has been admitted as a friend of the court in a matter before the Constitutional Court of Malawi. On 15 February 2022, the Court will hear an application requesting a review of the Malawi Penal Code which criminalises consensual sex between adolescents. We firmly believe that these criminal sanctions are unconstitutional and run counter to the best interests of the child.

Section 138 of the Malawi Penal Code provides for a crime known as ‘defilement’ which applies to anyone who has sexual contact with a girl under the age of sixteen. This law applies not only to adults, but to other adolescents. In January 2021, a fifteen year old boy known as A. J. was arrested and charged with an offence of defilement after having consensual sex with his then-girlfriend of thirteen. According to section 138, if convicted, A. J. could face a sentence of life imprisonment.

A. J. has approached the High Court of Malawi (sitting as the Constitutional Court) to request a review of section 138 as it applies to consensual sex between adolescents. He argues that, as it stands, the law allows officials to assume control of the intimate relationships between adolescents and violates their rights to equality, privacy and dignity under the Constitution of the Republic of Malawi. He further argues that the harsh criminal sanctions amount to punishment that is harmful to their health and development. A. J.’s application has been joined with another on behalf of T. S. – a thirteen year old boy similarly charged and challenging the constitutionality of section 138 as it applies to minors.

The Centre for Applied Legal Studies (CALS) has been admitted as a friend of the court in the matter. We believe that we can assist the Court in determining the important issues raised by this case. We argue that while it is necessary to protect children from sexual exploitation, adolescents also have an evolving capacity to make their own decisions and exercise their rights. Criminalising consensual sex between adolescents exposes them to harm and infringes on their rights to health, privacy, freedom of expression and bodily autonomy. Our submissions examine comparative case law in South Africa, Zimbabwe and Kenya.

“It is important to note that this case is not about whether children should engage in sexual activity or whether there should be an age of consent,” says Sheena Swemmer, head of Gender Justice at CALS. “This is about whether it is constitutional for a child to serve a sentence of imprisonment and have a criminal record for engaging in consensual sex. As it stands, the very law that is intended to protect children is causing them harm.”

CALS is represented by Reghana Tulk and Letlhogonolo Mokgoroane, who drafted our papers. Bright Theu appeared for us before the Court. 

The matter is set to be heard on 15 February 2022 from 09:30 in the High Court of Malawi. 

Read our papers in the matter here

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