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On 28 September 2021, the High Court of Malawi, sitting at Mzuzu, in the case of ON and  Others v Attorney General awarded damages for false imprisonment against the state in a case where a First Grade Magistrate had imposed fines on learners and their parents for the learners’ pregnancy, and detained them until payment of those fines. The Claimants were represented by Christon Ghambi of CHRAM Associates and supported by the Southern Africa Litigation Centre and Youth Watch Society.

Background

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 Claimants filed summons against the state for false imprisonment in July 2020 and judgment in their favour was granted in October 2020.

In assessing and awarding a total of K51 000 000 as damages, plus restitution and costs for all the applicants, the High Court Assistant Registrar Chiotcha found that the Claimants had been exposed to humiliation, mental suffering, and psychological torture, which is likely to have “far reaching consequences on their mental health”.

“The Claimants have been vindicated, and it is hoped that cases like this will bring accountability for violation of rights and also shine a light to harmful practices and the misuse of state power to police social issues like dealing with learner pregnancy.” says Tambudzai Gonese-Manjonjo, Deputy Director at the Southern Africa Litigation Centre.

Issued by the Southern Africa Litigation Centre

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