News Release: Malawi High Court upholds the rights of detained pregnant learners

Salc : Staff Writer

In April 2019, the High Court of Malawi, sitting at Mzuzu, in the case of ON and 13 Others v Child Protection Team issued a judgment reviewing the decision of a First Grade Magistrate to impose fines on learners and their parents for the learners’ pregnancy, and detaining them until payment of those fines. The case was supported by the Southern Africa Litigation Centre and Youth Watch Society.

In 2016, some learners in Nkata Bay were hauled before a First Grade Magistrate on allegations of breaching a community by-law by falling pregnant. The Magistrate ordered the learners, the boys who had allegedly made them pregnant, and some parents, to pay hefty fines. Those who were unable to pay the fines were placed in Police custody and only released upon payment. The learners and their parents filed an application for review in the High Court, on the basis that the actions of the Magistrates Court were unlawful, unreasonable and irrational, and that their Constitutional rights had been infringed.

In a judgment written by Honourable DeGabriele J, the High Court found that the arrest, detention and imposition of fines against the learners and their parents was unlawful because it was not done in terms of any recognised law, as falling pregnant or making someone pregnant is not an offence. The Judge ordered that the fines should be paid back to them. The Court also found that the Magistrate and the Child Protection Committee could be sued for damages by the Applicants for the unlawful detention and breach of their rights. In addition, the Court said that the use of community by-laws as an informal justice system had value as a way of protecting vulnerable groups, but such by-laws were not formal law and thus could not be enforced through the formal legal system. The Magistrate thus acted unlawfully by using the court system to enforce a community by-law. The Court also found that community by-laws had to be in conformity with the law and should not breach rights.

“The Court has confirmed that a punitive approach to learner pregnancy is unlawful. Our own research and experience shows that by-laws or policies which seek to punish adolescent boys and/or girls for teenage pregnancies is counter-productive and that a more holistic and human rights-based approach is required. Malawi is currently revising both its learner pregnancy management policy and its community by-laws. We hope that this judgment will contribute to a comprehensive, rights-based and effective approach in managing teenage pregnancies in Malawi and the region,” says Tambudzai Gonese-Manjonjo, Programme Lawyer at the Southern Africa Litigation Centre.

For more information on Malawi’s policy on the management of teenage pregnancies see: https://www.southernafricalitigationcentre.org/wp-content/uploads/2017/08/Learner-pregnancy-Report.pdf