REVIEW THOSE LAWS, LAW EXPERTS, NGO’s & ARTIST DEMAND.
There have been fresh calls for the review of laws governing consensual sex and adult age in Malawi.
An Organisation fighting for the plight of Males in the country, Men Arise Now, has stressed the need for a speedy process in reviewing the laws that govern consensual sex and adult age in Malawi, this is due to a growing number of persecutions of male minors being accused of having sex with fellow minor(girl).
Malawi’s constitution and the Child Care, Protection and Justice Act define a child as a person below 18 years. Malawi is also a signatory to the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, both of which define a child as anyone below 18 years.
Section 138 of the Malawi Penal Code provides for a crime known as ‘defilement’ which applies to anyone who has sexual contact with a girl under the age of eighteen, this law applies not only to adults, but to other adolescents.
In January 2021, according to Centre for Applied Legal Studies, a fifteen year old boy known as A. J. was arrested and charged with an offence of defilement after having consensual sex with his then-girlfriend of thirteen. According to section 138, if convicted, A. J. could face a sentence of life imprisonment.
A. J. has approached the High Court of Malawi (sitting as the Constitutional Court) to request a review of section 138 as it applies to consensual sex between adolescents.
He argues that, as it stands, the law allows officials to assume control of the intimate relationships between adolescents and violates their rights to equality, privacy and dignity under the Constitution of the Republic of Malawi.
He further argues that the harsh criminal sanctions amount to punishment that is harmful to their health and development.
A. J.’s application has been joined with another on behalf of T. S. – a thirteen year old boy similarly charged and challenging the constitutionality of section 138 as it applies to minors.
Source: Centre for applied legal studies website.
From time long-established girl rights have centered the attention whenever anyone makes mention of the phenomenon called child rights. This ranges from forced labor to physical or psychological abuse.
It is an undeniable fact that there are indeed efforts to ensure the protection of these young women but however one sector appears to be a miss In this great struggle to ensure the young generation are not deprived of their birthrights and it is no secret that it suffers from being under-looked or sidelined in a way or the next.
We are talking of the male child in this instance. The question is well cemented; where does he fit in in this equation?
Kalawe is part Social Media Influencer – part Musician. He shares his opinion on child protection laws and whose side they favor most between the male and the female child.
His ideas are central to the fact that the male child is subjected to human rights violation as the law favors a girl child more than the boy child.
The Influencer narrates a topic which sees a 14 year old minor who once had consensual sex with a girl who is a year older than him.
“My contribution is from a layman’s point of view, at the moment I fail to understand why the male child gets punished for consensual sex with fellow minor,” Kalawe said.
However the Social Media activist who also doubles as a musician believes that everything that applies to the girl child should also be applicable to boy child in the case of minors.
From the issue between the boy and girl involved in consensual sex, he claims whatever scenario that happened defeats all logic of law.
When asked where Malawi is ranked in as far as allowing parity in minor sex issues is concerned, he believes that as a country we are at a snail pace and this requires adjustment.
“There is definitely something that needs to be done but we are moving too slow.” Kalawe said
The remedy for the issue? Kalawe is of the view that the court has to set the correct precedent in the matter at hand reference (the story of a 14 year old boy who was sued for making love with a 15 year old girl).
The subject questioning the rationale of the laws against consensual sex also provokes the reaction of is a seasoned columnist and The Director for Men Arise Now, Pastor Watson Shaba who is of the view that the hype surrounding protection of the girl child has indirectly led to the demonization of the boy child who is now facing the furry of the judiciary.
According to Shaba it is cruelty to send a sixteen year old boy to jail for having consensual sex with a sixteen year old girl as both are consider minors legally.
His sentiments extend to: “It would be viable if both the girl and the boy are either hold accountable or not hold accountable for their childish actions. It is inhumane to take a minor behind bars, where instead of being reformed are turned into criminals.”
There have been instances where the girl, a minor equal to a male, will at one point return to school after the incident but the boy child faces a completely different fate in that he rot in jail.
“Are we applying the theory of parity here?” Shaba questions.
Shaba suggests: “If the nation applied the adult age of eighteen years in both males and females, all cases involving minor consensual sex should not be a case, rather both minors should not be held accountable for their childish actions”.
But have the law makers kept quiet on an issue demanding attention as this? Peter Dimba, Chairperson of the Parliamentary committee on Legal Issues, admits that the current law on sexual offenses discriminates against the boy child.
This led to the Legal Affairs Committee presenting a report to Parliament on the same during the last sitting of Parliament which contains recommendations to the Ministry of Justice to review the sexual offenses legal framework and decriminalize consensual sex between adolescents of the same age range.
Moreover the committee made recommendations that raise punishment for women offenders who sexually assault boys so there is parity with men who defile girls.
“We are hoping that the Ministry of Justice is working on this bill.” Dimba said.