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Malawi: Challenging criminalisation of adolescent sexuality

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 the 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 with having a consensual sexual relationship with a 13-year-old girl. The Chief Justice certified the case as a Constitutional matter on 6 October 2021, and it was brought before a panel of three judges.

The hearing commenced on 15 February 2022. The State and Attorney General Chambers raised several preliminary issues, including their objection to the admission of foreign amici by the Constitutional Court. The Constitutional Court overruled their preliminary objections, and the State and Attorney General Chambers applied for leave to appeal such a decision at the Supreme Court. The Constitutional Court granted them the leave to appeal. At the Supreme Court, they further applied for an exparte temporary stay of the case in the Constitutional Court pending the processing and determination of the appeal. On 2 December 2022, the Supreme Court granted the application to stay the proceedings in the Constitutional Court pending the substantial appeal hearing. At this time, the State and Attorney General Chambers had still not processed the substantial appeal.

In July 2023, the government of Malawi amended the defilement laws as they apply to consensual, non-exploitative sexual relationships between adolescent children. With this development, in February 2024, The State Chambers filed a discontinuance of the case against AJ and drafted a consent to withdraw the case.

The Director of Public Prosecutions has agreed to review cases of all children who were arrested and charged under Section 138 of the Penal Code and engaged in consensual sexual relationships. The Director of Public Prosecutions’ review will look at all cases before and after the amendment Act of 2023 to consider discontinuance. Once all relevant parties have consented to the discontinuance of AJ’s case, the case will be formally withdrawn.

The parties await until 15 March 2024 to report on the consent.

AJ v State Factsheet

Court Diary

Statement: Parliament to review defilement laws

News Releases
News release for 29 October 2021.

AJ v State Case in the News

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


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