Amicus Curiae Applications in Malawi—Reflections of a South African Practitioner

Amicus curiae applications are important as they aim to raise awareness for the court around aspects of a case that might otherwise be overlooked. This is especially significant in cases dealing with the intersection of various rights of vulnerable individuals such as women and children. In this practice note, I discuss the amicus intervention of the South African non-profit organization, the Centre of Applied Legal Studies, in the Malawian Constitutional Court case of AJ and TS v State and Others. The case deals with the constitutionality of section 138(1) of the Malawian Penal Code, which makes it an offence for anyone to engage in intercourse with a female child under the age of 16. Although this section was undoubtedly aimed to protect female children from sexual violence and rape it casts the net too wide by including consensual intercourse between minor children. In this case, both minor children were under the age of 15 at the time of their arrests. They had both engaged in consensual intercourse with their female partners (also minors) at the time and both faced a prison sentence of up to 14 years. In this note I proceed to explore the importance of the amici submissions in the case, the process of applying to be admitted as an amicus curiae in Malawi, as well as the challenges associated with being a foreign amici before the Malawian Constitutional Court.