Earlier this week, Centre for Human Rights, Education, Advice and Assistance (Chreaa) executive director Victor Mhango wrote the State House to ask for a pardon for a young boy who is currently serving a nine-year prison sentence for defilement.
The boy, 19, was selected to pursue an undergraduate programme, but may not do so because he was convicted for impregnating his 16-year-old classmate, contrary to Section 138(1) of the Penal Code.
Elsewhere, a 15-year-old boy in July filed an application to the High Court for criminal review, challenging the charges of defilement.
The young fellow wants the High Court to determine if it is appropriate for him to continue appearing before a subordinate court over charges bordering on consensual sexual relationship with a fellow adolescent.
Section 138 (1) reads: Any person who unlawfully and carnally knows any girl under the age of sixteen years shall be guilty of a felony and shall be liable to imprisonment for life, with or without corporal punishment.
So, this young boy’s dreams of a brighter future may be because he had a consensual relationship with a peer. Without condemning or condoning unprotected sex between teenagers, this boy is about to pay too steep a price for the crime committed.
By the time he finishes serving the sentence, he will likely have lost his place at the university and may have to resit the Malawi School Certificate of Education (MSCE) exam to secure another place.
The law was presumably put in place to protect girls under 16 years, who are at that age deemed not mentally mature enough to give consent for any sexual act, from sexual predators who can seduce, or if necessary, coerce them to sleep with them.
Obviously, the framers of the Constitution and the Penal Code had the best intentions and wanted to secure the rights of the girl child, but the way it stands now in relation to other relevant laws might harm the interests of the girl child.
Note that the Penal Code makes no specific reference to the age at which boys can be deemed old enough to provide consent for sexual acts. But apparently, there is a law which prescribes that any boy above the age of 12 can commit an offence.
Effectively, this means that under the Malawi Penal Code, a 12-year-old male child is legally considered being of sound mind to be liable for his sexual activities, while his female counterpart cannot be held accountable for the same until she is 16 years old.
From a layman’s perspective, if not managed correctly, the current iteration of the law might protect the rights of the girl child but compromises those of their male counterparts. A child should be considered a child regardless of their sex.
To put it into context, a 31-year-old woman in Dowa was earlier this year sentenced to four years’ imprisonment for defiling a 14-year-old boy.
It hardly seems fair for a 19-year-old boy to get such a stiff punishment for engaging in a consensual relationship while a 31-year-old woman gets four years for a similar offence.
Granted, the legal and human rights authorities need to put in place mechanisms to protect the girl child, but it should not be done at the expense of the boy-child.
Mhango should be commended for bringing this boy’s plight to the attention of the President. It is a clear example of how some laws, no matter how well-intentioned, could harm others if applied indiscriminately.
When the review at the High Court is over, perhaps the relevant authorities in the Judiciary and Parliament should consider reviewing the law to make an explicit reference to the age of consent for the boy-child to ensure fairness.
In its current iteration, the application of the law in both instances was just and in accordance with the Malawi’s legal principles, but it is discriminatory to say a girl under the age of 16 cannot give sexual consent for when a boy of 15 can be penalised for committing a sexual offence.
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