A group of pregnant school learners, the boyfriends by whom they were pregnant, and the parents of some of them, have been awarded damages for their ‘arrest’ and conviction under community by-laws. Sentenced to pay fines, they were kept in police cells until the fines were paid in full. Now, however, the fines must be repaid, along with damages. The exact amount of damages due was finalised last week by the assistant high court registrar who also warned that community by-laws did not amount to formal law. They could thus not be enforced through the formal legal system which did not, in any event, recognise pregnancy as an ‘offence’.
Read decision on damages
Five years after being arrested, charged, convicted and fined for ‘being pregnant’, a group of what were, at the time of the arrests, primary school girls, along with boys allegedly responsible for the pregnancies and the parents of some of the youngsters, have been awarded damages.
In April 2016, a group of 13 mostly primary school learners and their parents were arrested by the magistrate’s court and the local police, allegedly acting as part of a children protection committee (CPC). The group was then prosecuted in front of the CPC at a meeting chaired by the local magistrate. After hearing the parties, the magistrate found everyone guilty and fined the girls, their parents and the boyfriends MK10 000 each.
The magistrate also ordered that they should all be locked in police cells until they paid the fines in full. As a result, they spent between 12 hours and two full days in prison.
According to a report by the Southern African Litigation Centre (SALC), the group approached the high court on review, claiming that the actions of the magistrates’ court was unlawful and that their constitutional rights had been infringed.
In her judgment on that review application, Judge Dorothy DeGabriele found the arrest, detention and imposition of fines in the case was unlawful. There was no such offence as becoming pregnant, or making someone pregnant, she said. The judge ordered that the fines be paid back and held that the magistrate and the child protection committee could be sued for damages.
SALC quotes the judge as saying that community by-laws had a role to play in protecting vulnerable groups, but they did not amount to formal law ‘and thus could not be enforced through the formal legal system.’
It was her finding that the magistrate acted unlawfully by using the court system to enforce a ‘community by-law’. ‘Community by-laws’ had to conform with the law and should not breach rights.
Last week the assistant registrar, Paul Chiotcha, decided the amount of damages to be awarded to those involved. He said that although the summons was properly issued and served, with proof of service, in 2020, the defendants did not respond to the court process.
It was adjourned for assessment of the damages claimed but while the claimants and their witnesses arrived for the hearing, the defendants did not attend.
Chiotcha related the events again, including the fines of Mk10 000 each imposed on the girls, their parents and the boyfriends, along with the order by the magistrate that the group had to be incarcerated at the police cells until the fines were fully paid.
The claimants spent between 12 hours and two full days in the police cells.
They subsequently argued that they had suffered loss of their liberty during the time they spent in the police cells. Although the original default judgment awarded them damages for false imprisonment and for violation of their constitutional rights as well as aggravated damages and refund of their fines, when the amount of damages to be paid was argued, counsel did not focus on these issues. Instead, he stayed off the matter of constitutional damages and focused only on ‘false imprisonment’.
In this case, the claimants were detained in police cells for between 12 and 48 hours. ‘In Malawi, pregnancy has never been a crime punishable by imprisonment. But the police officer in charge and the magistrate … decided to try, convict and incarcerate the claimants for non-existent offences.’
‘They were all exposed to deprivation of liberty, humiliation, injury to feelings, stigma, mental suffering and psychological torture.’ For those who were pregnant, the situation was even worse, particularly since some of them were youngsters. Police dragged them to the police station as members of the public shouted insults at them and took photographs. They were kept barefoot in filthy police cells.
Chiotcha awarded those held the longest MK5 000 000 and most of the rest MK4 000 000, while the parents were awarded MK3 000 000. The total damages to be paid for false imprisonment was MK51 000 000. He also ordered that the fines had to be repaid with interest, and that the claimants were also awarded legal costs.
Human Rights Watch
In the same week that the damages award was made, Human Rights Watch issued a new report about the situation in Tanzania where pregnant learners were forced to leave the public school system.
Although Tanzania justifies its stance on the grounds that a separate learning system existed for pregnant students, the court of justice of the Economic Community of West African State (Ecowas), has found that banning pregnant students and adolescent mothers from schools in Sierra Leone amounted to discrimination. So were the ‘alternative schools’ for pregnant students and mothers forced to quit the public school system, similar to the system operating in Tanzania, were discriminatory and amounted to a violation of girls’ right to education.
Read about the HRW report: