On 7 July 2021 the High Court in Blantyre will hear the case of an adolescent child of 15 years old who was arrested and charged with the offence of Defilement contrary to section 138(1) of the Penal Code due to having a consensual sexual relationship with another child. The applicant filed an application for criminal review, in which he argues that section 138(1) of the Penal Code is overly broad and criminalises both abusive acts against children as well as non-exploitive consensual sexual conduct between adolescents.
The High Court will be asked to determine the following:
· Whether the overly broad application of the offence of defilement as it applies to consensual sexual relations between adolescent children, allows law enforcement officers to scrutinise and assume control of the intimate relationships of the Applicant and other adolescents, thereby violating their right to privacy and dignity as provided under sections 19(1) and 21 of the Constitution of the Republic of Malawi.
· Whether section 138(1) of the Penal Code is contrary to the right of equality provided for in section 20 of the Constitution, in that it expressly discriminates against the Applicant, a male child, based on sex, for it prohibits only having “carnal knowledge” of “girls under 16 years.”
· Whether the offence of defilement under section 138(1) constitutes a breach of the rights of the Applicant and other children by exposing them to treatment that is inconsistent with their best interests and welfare, which is protected by section 23(1) of the Constitution. The application of section 138(1) to adolescent children who engage in consensual, non-exploitative sexual relations amounts to treatment or punishment harmful to their health and natural development. It exposes adolescent children to the criminal justice system at a young age
The applicant is being represented by Chikondi Chijozi and Ruth Kaima.
Issued by the Southern Africa Litigation Centre (SALC) and Centre for Human Rights Education, Advice and Assistance (CHREAA)