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News Release: Malawi Constitutional Court to hear challenge to use of defilement offence against adolescents engaging in consensual sex

By 29 Oct 2021Dec 9th, 2022Equality Rights Health, Equality Rights News, Malawi1 min read

Blantyre, 29 October 2021 – The Chief Justice, Honourable Justice A.K.C. Nyirenda has certified as a constitutional matter, the case of AJ v State, in which a 15-year old boy was charged with the offence of defilement for having a consensual sexual relationship with a 13 year old girl. The case is set to be heard before a panel of three High Court judges sitting as a Constitutional Court. The panel will consider the following questions of law:

  • Whether the offence of defilement under section 138(1) of the Penal Code, insofar as it applies to consensual sex between adolescent children, violates the rights to privacy and dignity as provided under sections 19(1) and 21 of the Constitution of Malawi.
  • Whether the offence of defilement exposes children to treatment that is inconsistent with their best interests, which is protected by section 23(1) of the Constitution.
  • Whether section 138(1) of the Penal Code discriminates against the Applicant, a male child, based on sex, for it prohibits only having “carnal knowledge” of “girls under 16 years”.

The Applicant is being represented by Chikondi Chijozi from the Southern Africa Litigation Centre (SALC) and Ruth Kaima from the Centre for Human Rights Education, Advice and Assistance (CHREAA).

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