CSOs ask Malawi Law Commission to review Section 138 of penal code: ‘Defilement law applied unfairly’

Civil society organisations, including Youth and Society (YAS) and Oxfam Malawi, have requested the Malawi Law Commission to review section 138 of the penal code, raising two “failures” of the legislation which they say “bring about unfairness” in the application of the law.

Kajoloweka: Section 138 of the Penal Code discriminates against children who are above 16 years.

Section 138 of the Penal Code provides for the offence of defilement of girls under the age of 16.

The two “failures” the CSOs have raised, are; the section does not protect children above the age of 16, it does not protect a boy child who engages in consensual, non-exploitative sexual relationship with another child of the same age range.

The CSOs sentiments are in a letter addressed to the Law Commissioner, dated 17 March 2020, which has been made available to Nyasa Times.

YAS executive director, Charles Kajoloweka, has signed the letter with Oxfam Malawi and the other CSOs endorsing it.

The letter cites the Constitution of the Republic of Malawi, saying it defines a child as a person under the age of 18, a definition which is “internationally recognised under the Convention on the Rights of the Child and was also affirmed by the High Court in the case of The State (On the Application of Stanford Kashunga) vs The Second Grade Magistrate’s Court Thyolo and Another, Misc Civil Cause No.129 of 2012”.

The letter further cites section 23 of the constitution, saying it guarantees equal protection of children before the law and that the best interests of the child shall be a primary consideration in decisions affecting the children.

“However, section 138 of the Penal Code discriminates against children who are above 16 years. Where a girl child is above 16, and she is sexually exploited, there is a requirement of proof of lack of consent but this is not the case where the girl child is under 16 despite all of them being children under the Constitution.

“There is no justification to exclude children above the age of 16 from the protection of the law under section 138 of the Penal Code to ensure full protection of all children from sexual exploitation,” the letter reads in part.

It emphasizes that all children should enjoy the same protection under the law regardless of their age.

“The law in effect criminalises a wide range of consensual sexual conduct including sexual conduct undertaken in the course of adolescent’s normal development. We believe that the intention of the framers of the law was to protect children from sexual predators but not to criminalise developmental normal sexual conduct”.

The letter further says the law, as it stands, violates the right to privacy, dignity and discriminates against a boy child.

It says the law goes in the private space of an adolescent child and scrutinizes and assumes control of innocent intimate relationships of adolescents thereby violating their right to privacy and dignity.

“The law not only infringes on the rights of a boy child but also exposes the girl child to harm where the law forces them to keep issues of their sexual conduct underground away from adult guidance in fear of exposing their partners to criminal proceedings. The  boy child when arrested for what is essentially normal conduct for adolescent children is exposed to criminal proceedings which can be damaging to the child’s development and future”.

The letter adds: “The law on defilement should be limited to exploitive sexual conduct and exclude consensual non-exploitive sexual relationships between adolescents of the same age group. We believe that the review of section 138 of the Penal Code is timely where the Commission is working on the harmonization of child related laws”.

Other CSOs that have endorsed the letter, are; Southern Africa Litigation Centre, CHREAA, MHUB, YIELD, Mzuzu Youth Association, Citizen Impact, Kandoli Youth Organisation, Young Politicians Union, CISE Malawi, Mzuzu Youth Caucus, Karonga Youth Justice and Development, PACE for Social Change, Good Health Organisation, APAUSE, Youth-Decide Campaign.

There has been no immediate comment from Malawi Law Commission on the matter.

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