The Southern African Litigation Centre and the Youth Watch Society are supporting fourteen Malawian students who were suspended from primary school and fined for pregnancies in their appeal to the Mzuzu High Court in Malawi.
In April 2016, sixteen pregnant female students and the sixteen male students responsible for the pregnancies were suspended from the Uhoho Primary School in the Chintheche education zone in the Northern Region of Malawi. The suspension of these thirty-two students was called “the worst pregnancy scandal at a school in living memory.” The students were referred to the Traditional Authority’s Child Protection Team and then to the Magistrates Court. A local magistrate subsequently fined each parent K10,000 (R180). Those who were unable to pay the fine were placed in police custody until the fines were paid, including some of the students’ parents. Several students were unable to take their Malawi National Board examinations because they were in custody.
Fourteen of these students are appealing the Magistrates Court decision to fine the students’ parents. They are supported by the Southern African Litigation Centre (SALC) and the Youth Watch Society in Mzuzu. Their case also challenges the unlawful detention of the students in police cells until their fines were paid. The applicants argue that the fines and detention were inconsistent with common law notions of fairness, legality, and rationality, and with the rights to liberty, education, and other constitutional rights. Additionally, the applicants are challenging the decision made by the magistrate and the Child Protection Team to prohibit or impede the students in custody from writing their examinations. They argue that doing so violated the students’ right to education and other constitutional provisions.
Malawi’s Student Pregnancy Laws and the Constitutional Right to Education
In Malawi, the National Policy allows suspending pregnant school girls and boys responsible for the pregnancies for one academic year. The intention behind this policy is to ensure that babies from such pregnancies are taken care of and to ensure that the boys take responsibility to help the girls. However, this policy results in depriving students of their right to education, enshrined in Malawi’s constitution, by taking them out of the school system and making it harder for them to return once the babies are born. Anneke Meerkotter, the Litigation Director of the SALC, explains that students struggle with returning to school after pregnancy-suspensions because of the arduous reapplication process, the costs of returning, the difficulties with managing childcare and going to school, and because of fears of the social stigma associated with such suspensions.
Additionally, in this case, the students involved were over the age of 18, which is the age of consent in Malawi. As Meerkotter noted, “[I]t’s a bit strange to have a fine as they are past the age of consent.”
This appeal is the first to challenge such laws. Previous fines, including fines larger than K10,000 (R180), have not been contested at anywhere near the same level. The Mzuzu High Court heard the appeal on 2 May 2017. The High Court’s decision is as yet unknown, but it is clear that continuing to suspend and fine students because of pregnancies will only worsen the state of Malawi’s education system.
Education in Malawi continues to be a struggle, particularly for girls. While the number of students enrolled in schools is rising, dropout rates are also rising. Only 53% of boys and 45% of girls enrolled manage to complete their primary education. The primary reason for dropping out for both genders is the inability to pay school fees, but, for girls, pregnancy is a close second. Between 2010 and 2013, 14,051 primary school girls and 5,597 secondary school girls dropped out of school because they were pregnant.
This case highlights the need to change Malawi’s student-pregnancy laws. Continuing to suspend students for pregnancies, and then further fining and detaining students for their inability to pay, is a clear violation of students’ constitutional right to education.
By Shikha Garg
 Owen Khamula, “Malawi Court Suspends 32 Students over Pregnancy: Sexual Activity Rise in Nkhatabay Among Teens,” Nyasa Times (4 May 2016), http://www.nyasatimes.com/malawi-court-suspends-32-students-over-pregnancy-sexual-activity-rise-in-nkhatabay-among-teens/.
 Malawi’s Constitution provides that “All persons are entitled to education,” http://www.wipo.int/edocs/lexdocs/laws/en/mw/mw030en.pdf.
 Marelise van der Merwe, “Malawian Pupils Suspended for Sexual Activity Take Their Ordeal to Court,” Daily Maverick (3 May 2017), https://www.dailymaverick.co.za/article/2017-05-03-malawian-pupils-suspended-for-sexual-activity-take-their-ordeal-to-court/#.WVJfm2h942y.
 van der Merwe.
 van der Merwe.
 Rachel Williams, “The Struggle to Finish School in Malawi,” The Guardian (12 March 2012), https://www.theguardian.com/education/2012/mar/12/education-school-malawi-girls-millennium.
 Human Rights Watch, “Africa: Make Girls’ Access to Education a Reality” (16 June 2017), https://www.hrw.org/news/2017/06/16/africa-make-girls-access-education-reality.