Section 138 of the Penal Code provides that any person who have carnal knowledge of any girl under the age of 16 years shall be guilty of a felony punishable by life imprisonment.
Clearly, the law prohibits defilement. The provision provision seeks to protect children from sexual exploitation, which is tantamount to treatment that is harmful to their health and development.
However, the penal law has led to injustice to the same children it intends to protect.
The Centre for Reproductive Health notes, among other things, that criminalisation of non-coercive and non-exploitative sexual conduct between adolescent minors punishes them for what is a natural part of development and stigmatises sexual activities between adolescents in which both parties desire to have sex.
Criminalising sex between adolescents also results in boys being imprisoned and, in some cases, living with a permanent criminal record for engaging in consensual peers.
Besides, it hinders adolescents from accessing sexual reproductive health services, which goes against the best interests of minors.
Malawi is a State party to the Convention on the Rights of Children. As such, the country has to speedily eradicate this child injustice.
Moreover, according to General Comment 20 on the implementation of the rights of the child during adolescence, the Committee on the Rights of the Child (CRC) says “States should avoid criminalising adolescents of similar ages for factually consensual and non-exploitative sexual activity.”
Without a doubt, if this provision used to criminalise sex between adolescents is left unchecked, the livelihood of ‘a boy child’ shall forever be doomed.
Malawians have to accept the reasoning of senior resident magistrate Elijah Blackboard Dazilikwiza Pachalo Daniels.In his verdict last year, he warned against “an illusion that our young men and girls would properly wait for their proper time to enjoy the fruits of their bodily hungriness”.
Besides, other than making it a crime, there are other suitable ways of minimising adolescent sex.
Of course, the legality of this issue is on trial in the High Court.
However, judges have the discretion to declare Section 138 of the Penal Code, which criminalisation of adolescent sex, unconstitutional as did their counterparts in South Africa or to uphold it as constitutional the way Kenya’s constitutional court did.
Alternatively, the 193 lawmakers in the National Assembly can use their voting powers to amend the law, which imperils boys.
However, the the most effective route to decriminalise adolescent sex while protecting children from sexual predators is to adopt an approach similar to South Africa’s. This entails that consensual sexual acts involving adolescents aged 12 to 16 have been decriminalised. If the older participant is over 16 years, but under 18 years, there is no prosecution provided there is not more than a two-year age gap between them.
However, the two-year gap may be increased to not more than six years as is the case in most American states.
From this perspective, it is obvious that only Parliament, not courts, can bring about the said remedy.
While the high court may declare the legal provision as unconstitutional, it cannot prescribe such amendments to avoid usurping the law-making duties of the Legislature.
So, why wait for the Judiciary?
Parliamentarians’ reluctance to amend laws has not only led to more child injustice but also preventable controversy over judicial activism.
This is the right time for members of Parliament to show that they are really concerned with rights of children. Parliament has to amend the Penal Code to decriminalise sex between minors.