SALC is working with Centre for Human Rights Education, Advice and Assistance (CHREAA) – Malawi in a challenge to the law of defilement in s138 of the Penal Code, insofar as it criminalises consensual sex between adolescents in Malawi. It is illegal to have sex with a girl under the age of 16 in Malawi, and there are no exceptions for consensual non-exploitative sex when the accused persons are themselves children/adolescents. This has resulted in cases of young people being incarcerated for lengthy periods for defilement and acts as a barrier to adolescents’ access to sexual and reproductive health information and services.
R v C case
In the case of R v C, a 15-year-old boy, accused of defilement after having a consensual sexual relationship with a 15-year-old girl, an application for referral to the Constitutional Court and stay of proceedings was filed in the Child Justice Court. A hearing in the matter was held on 14 August 2020. The matter was referred to the Chief Justice for determination. Unfortunately, the Chief Justice declined to refer the matter for a constitutional hearing and referred the case back to the trial court for continuation of the criminal trial. The date for continuation of the trial has not yet been set.
AJ v State
In the case of AJ v State, a 15 year old boy has filed an application for criminal review in the High Court of Malawi challenging the application of the law to consensual sexual relations between adolescent children after being charged for having a consensual sexual relationship with a 13 year old girl. The case was certified as a Constitutional matter by the Chief Justice on 6 October 2021. The matter will be heard before a panel of Judges.
The Supreme Court on 2 December 2022 delivered its ruling on the preliminary issues raised by the Attorney General and stayed the proceedings in the High Court pending the hearing of the appeal. lawyers for the Applicants have agreed to make an application to set-aside the order of stay of proceedings to allow the matter to proceed. The Supreme Court stayed proceedings pending it’s determination of an application from the office of the Attorney General.
Statement: Parliament to review defilement laws
AJ v State Case in the New
Capital Radio Malawi discussion
SALC in the news: Child rights activists in arms for penal code amendment to protect boy child.
29 October 2021 MIJ Online
14 February 2022 –Media Advisory: Challenge to use of defilement offences against adolescents engaged in consensual sex in Malawi