malawi: challenging the use of the offence of living on the earnings of prostitution

In February 2016, 19 women were arrested and charged with the offence of living on the earnings of prostitution contrary to section 146 of the Penal Code. The women pleaded guilty to the charges and they were convicted upon those pleas and sentenced to a fine.

SALC and the Centre for Human Rights Education, Advice and Assistance (CHREAA) supported the women to bring a review application on the basis that the police, prosecutor and magistrate had misinterpreted the offence of living on the earnings of prostitution.

The applicants submit that an interpretation of the language, purpose and history of the offence clearly indicates that the offence has never been aimed at sex workers, but rather at those who exploit them. The applicants are represented by Fostino Maele.

On 8 September 2016, the Zomba High Court delivered judgment. The Court found that the Fourth Grade Magistrate had no jurisdiction to hear the case and that the arrest of the women was unconstitutional and not based on evidence. The Court found that section 146 of Penal Code does not criminalise sex work and it is in fact mainly intended to protect sex workers. Noting the history of the offence, the Court confirmed that the offence was not aimed at sex workers but at those who exploit them. The Court noted that though sex workers in certain instances may be arrested under this section, the arrest must be properly supported by evidence. The Court ordered that the conviction be set aside and the fines be returned to the women.

A summary of the High Court judgment is available here.

High Court judgment

Applicants’ skeleton arguments

Case summary

For more information on the history of the offence, see SALC opinion.

English and Chichewa pamphlets on sex workers’ rights in light of the judgment have been disseminated widely in Malawi.

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