Yesterday, the Child Justice Court sitting in Blantyre, Malawi, issued an order for a stay of criminal proceedings against an adolescent boy who was charged with the offence of defilement pending determination of the High Court on the constitutionality of the offence. Currently, 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 Chief Justice will now be requested to refer the matter to the High Court to consider whether the overly broad application of the offence of defilement violates the Applicant's rights to dignity, privacy, equality before the law, and the right to health which includes sexual reproductive health rights.
The Applicant in the case is a 15 year old boy accused of having a consensual sexual relationship with a 15 year old girl.
The child 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). 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.
ISSUED BY THE SOUTHERN AFRICA LITIGATION CENTRE AND CENTRE FOR HUMAN RIGHTS EDUCATION, ADVICE AND ASSISTANCE