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Challenge to use of defilement offences against adolescents in consensual sex in Malawi

By 14 February 2022September 19th, 2023Equality Rights, Equality Rights Health, Equality Rights News, Malawi2 min read

Blantyre, 14 January 2022 – On 15 January 2022, the Malawi High Court sitting as a Constitutional Court will hear an application made by two minors AJ and TS who are challenging the constitutionality of the offence of defilement where it applies to consensual and non-exploitative sexual relationships between adolescent children. The panel of three judges comprising of Justice Chigona, Justice Mambulasa and Justice Chima will determine the following constitutional questions:

  • Whether the offence of defilement under section 138(1) of the Penal Code, violates the applicants’ right to privacy and any other constitutional rights in as far as it relates to consensual sex between minors.
  • Whether the application of the offence of defilement under section 138(1) of the Penal Code to the applicants and other adolescent children in consensual non-exploitative sexual relationships constitutes treatment that is harmful to their health and development, contrary to their best interests, as protected in section 23(1) of the Constitution.
  • Whether section 138(1) of the Penal Code discriminates against the applicants on the basis of sex and violates their right to equality in section 20 of the Constitution.

The Court will hear arguments from the parties as well as five amicus curiae who have been admitted by the Court: Ms Tlaleng Mofokeng, UN Special Rapporteur on the Right to Health,  the International Women’s Human Rights Clinic at Georgetown University Law Centre in Washington DC, the Centre for Applied Legal Studies at University of Witwatersrand, the Centre for Reproductive Rights and Dr. Godfrey Dalitso Kangaude, a Malawian legal researcher and scholar on sexual reproductive health rights.

AJ is 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). SALC and CHREAA are concerned by the number of children who have been sentenced to lengthy periods of imprisonment for consensual sexual acts and the use of criminal law to address matters of this nature.