MZUZU ( Marelise Van Der Merwe, DM) – Malawi’s draconian school pregnancy laws have come under scrutiny as over a dozen pupils await a High Court ruling that could set a precedent for future cases.
In November 2016, the pupils filed an application for judicial review of fines imposed on them by a local magistrate after their school suspended both the girls who fell pregnant and the boys who impregnated them. In addition, the pupils and their parents were summoned to appear before a local magistrate, who ordered each parent to pay a K10,000 fine and placed those who were unable to pay the fine in police custody until they did. In some instances, the parents were also detained in the cells until the fine was paid.
Attorneys and activists supporting the pupils have argued that the measures are unnecessarily punitive and deny the children their constitutional right to education.
“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. The case also challenges the decision of the magistrate or Child Protection Committee of prohibiting or impeding the pupils who were in custody from sitting for and writing MANEB examinations, as violating their right to education and other constitutional provisions,” the Southern Africa Litigation Centre (SALC) said in a statement.
The pupils’ application is supported by Youth Watch Society in Mzuzu and the SALC. The pupils are represented by Victor Gondwe of John Tennyson and Associates. The case, which was due to be heard on 27 April by the Mzuzu High Court, was postponed until 2 May, but had to be heard in Chambers as the State’s legal representative did not arrive. It is not yet clear when the ruling will be made, says Gondwe.
Under Malawian law, girls and boys may be suspended for sexual activity, although girls usually draw the short straw. Before 1992, a boy “discovered” to have been responsible for a pregnancy could be suspended indefinitely until proved innocent beyond doubt in a court of law, and could only be readmitted to school upon producing the court documents. Now, however, boys may only be suspended if they are found to be responsible, which is generally achieved by a somewhat unscientific process involving a letter from the girl concerned to her school principal. If she refuses to divulge the father’s name and/or he denies responsibility, he can dodge the law without too much difficulty – despite legislation referring to the pregnant teen, rather emotively, as the “victim” and the boy concerned as the “culprit”.
The pupils in question were suspended from Uhoho primary school under Chintheche education zone in Nkhata Bay in May 2016. Nyasa Times called it “the worst pregnancy scandal in living memory”, which is consistent with the tone of many other local media; many Malawian outlets have reported parents’ and community members’ concerns over sex education in schools fuelling promiscuity. Malawi has a majority Christian population, and even outside of the religious factor, in many communities, contraceptive use is not encouraged. According to the most recent Malawi Demographic and Health Survey (2015/16) 29% of women aged 15-19 have already begun bearing children, and although the majority of women who have children already do not want to have more, the minority of sexually active unmarried women are using contraception (44%); 14% of these women are using male condoms.
The case currently being evaluated in the Mzuzu High Court is unusual because it is taking on laws that have been operational for decades. Previous fines, some of which have been larger, have not been contested at anywhere near the same level.
“The case highlights the importance of the rights of all persons to access primary education as well as the right not to be detained on arbitrary grounds,” said the SALC.
Gondwe told Daily Maverick the boys had not contested their involvement. In May 2016, all the pupils were suspended from their primary school, with the 16 boys initially being charged with defilement on the basis that the girls “looked younger than 18”. Chintheche Magistrate Alexander Gomwa, who also delivered their sentence, reduced the charges when the pupils’ head teacher vouched that the pupils were of age. Gomwa also sits on the local traditional authority, which meant that he held both legal and social influence.
Gomwa said that after the girls had delivered, the pupils would be free to return to school.
It is not that simple, however, says Anneke Meerkotter, Litigation Director of the Southern African Litigation Centre. Meerkotter told Daily Maverick that although national law and provincial by-laws make provision for pupils to be suspended from school on grounds of a pregnancy, the return is not plain sailing, either because of the administration involved or because the pupil cannot afford to return or because she fears the social stigma associated.
Further, there is a large number of pupils who, like the Uhoho pupils, are teenagers in primary school. According to Unicef, there is no reliable data available on exactly how many pupils have dropped out of school due to pregnancy, but Malawi’s dropout rates overall are high. According to the national education profile, the gross enrolment rate, which includes under and over age pupils, in primary education is 141% for girls and boys combined. This decreases to 42% in lower secondary, with a student transition rate to secondary school of 73%. Malawi is one of the world’s poorest countries, with 60% of the population living below the poverty line, and 40% living on less than $1 a day, and increasing the school dropout rate exacerbates this.
“Like many countries where there is widespread poverty, there are punitive measures to deal with social problems,” says Meerkotter. “One finds that the police are left to deal with social problems, which is not really appropriate. The laws are well-intentioned, so it is tricky, because the end result is often that the learner ends up not returning to school and not being able to provide for the child as well as he or she could have otherwise.”
Human rights issues aside, major logistical problems also come into play. The reapplication process is arduous, requiring multiple letters to be sent first to the school, then submitted at district level and then to the Education Division. There is also a counselling process which is outlined in the existing policy documents, which is intended to assist learners both in leaving school to give birth and again in adjusting to returning to school. It was not carried out in this case; in fact, the school did not even possess a copy of the policy document and its requirements. “I suspect this happens quite frequently,” says Meerkotter.
Medical and social support, she adds, are thin on the ground. There are no grants available to assist the young parents.
Additionally, says Meerkotter, it was peculiar to institute the punitive measures as the law is intended to protect children from becoming parents, as well as from parental neglect by their own families. “In this case, they are not children, so it’s a bit strange to have a fine as they are past the age of consent,” she explains. “Yet the parents and their children were summoned to court and ordered to pay a fine, and those who could not pay the fine were held in custody. It’s around $13, but that’s a huge amount for many of them.”
During the suspension, says Meerkotter, some of the pupils had already given birth, and they were writing exams, so the punishment was particularly badly timed. “There’s a lot of anger in the community. The parents and children came to court last week, and it’s quite a distance to travel.”
The concern for activists at this stage is that the intention of the policy must be balanced with the well-being of the families concerned. “The intention that it is good for the baby to be cared for and that the boys must also take responsibility to help the girls is there, but it is a logistical nightmare for the pupils. For us, the answer is not suspending them from school. Their right to education is enshrined in the Constitution.
“I am not saying there are any easy answers. But in this case, the community was outraged. The individual circumstances of each learner were not taken into account, and there was no real rationale for the measures taken,” says Meerkotter.
“A policy that can be applied so arbitrarily against a group of students disregards the socio-economic circumstances. It’s unfortunate to have policy decisions that are so short-sighted.”