The High Court of Malawi sitting as the Constitutional Court is set to review and interpret Section 138(1) of the Penal Code on defilement after being moved by a 15-year-old boy.
The development follows certification of the case as a constitutional matter by Chief Justice Andrew Nyirenda, according to registrar of the High Court and Malawi Supreme Court of Appeal Gladys Gondwe.
In an interview yesterday, she said Nyirenda has appointed High Court judges Zione Ntaba, Jack N’riva and Mandala Mambulasa to a three-judge panel.
Gondwe said: “Once the judges on the panel have been informed by the judge president, they will meet and issue a date or give directions.”
In a written response, Southern Africa Litigation Centre (Salc) lawyer Chikondi Chijozi, a member of the boy’s legal team, said they are waiting for the judges to convene and set the matter for a scheduling conference where directions will be given.
Section 138 (1) of the Penal Code in question states that any person who unlawfully and carnally knows any girl under the age of 16 years shall be guilty of a felony and shall be liable to life imprisonment.
The boy was arrested and charged with defilement for allegedly being in a consensual relationship with a 15-year-old girl.
Documents filed in court show that the boy wants the court to determine whether Section 138 (1) of the Penal Code is contrary to the right of equality provided for in Section 20 of the Constitution. He further contends that the said section of the Penal Code expressly discriminates against the applicant, a male child, based on sex as it prohibits only having “carnal knowledge” of “girls under 16 years”.
The boy also wants the court to determine whether the broad application of the offence of defilement as it applies to consensual sexual relations between adolescent children, allows law enforcement officers to scrutinise and assume control of the intimate relationships of the applicant and other adolescents, thereby violating their right to privacy and dignity as provided under Sections 19 (1) and 21 of the Constitution.
Further, the boy also wants the court to determine whether the offence of defilement under Section 138 (1) constitutes a breach of his rights and of other children by exposing them to treatment that is inconsistent with their best interests and welfare, which is protected by Section 23 (1) of the Constitution.
Besides Chijozi, the boy is also being represented by lawyer Ruth Kaima from the Centre for Human Rights Education, Advice and Assistance.
In August this year, the Child Justice Court sitting in Blantyre issued a stay order for the criminal proceedings of the case pending the High Court’s determination on constitutionality of the offence before it was referred to the Chief Justice to certify it as a constitutional matter.
In March this year, some civil society organisations, including Youth and Society and Oxfam in Malawi, asked the Law Commission to review Section 138 (1) of the Penal Code on the basis that it brings about unfairness on application of the law.