The idea of Section 138 is to protect the child
Section 138 of the Penal Code, which took effect on 21st February 2023, prohibits adults from having sexual intercourse with children. The law aims to protect the child from harmful sexual conduct.
At the same time, the new provision prevents children who are peers from being penalised for engaging in consensual sexual conduct as long as the age difference between them is not more than two years. Here the law avoids the injustice of penalising children for sexual conduct that is not harmful.
But the amendment has created an anomaly
However, the new provision comes with a novel challenge; it puts 19 and 18-year-olds (adults) in a precarious situation because the law prohibits them from engaging in sexual conduct with a 17-year-old (a child). Yet, these are peers. This peer group is undoubtedly engaging in consensual sex with each other. But now, what happens when the law catches up with them?
This anomaly must be addressed. Indeed, we must learn from history because the previous versions of Section 138 also had peculiar challenges. The first part of the original version of Section 138, which Malawi inherited from the colonial administration’s Penal Code of 1930, read as follows:
(1) Any person who unlawfully and carnally knows any girl under the age of thirteen years shall be guilty of a felony and shall be liable to imprisonment for life, with or without corporal punishment.
From 1930 to 2011, when at last the provision was amended, it was legal to have sex with a girl of 13. One of the reasons the colonial administration set the age so low for Malawi was that African girls were considered precocious compared to their white counterparts. (See the article by Victoria Bates). It would seem this perspective resonated with post-independent Malawi because it was only in 2011 that the anomaly of the low age was addressed when Section 138 was amended to raise the age from 13 to 16.
The first part of the 2011 version of Section 138 read:
(1) Any person who carnally knows any girl under the age of sixteen years shall be guilty of felony and shall be liable to imprisonment for life.
Before the 2022 amendment, the law was unjust
The 2011 provision did not appear problematic until cases started to appear in the courts that signalled a problem with the provision. They concerned boys being prosecuted and convicted for having consensual and non-exploitative sex with their peer girls. One such case came before Justice Kamwambe in the High Court when a 17-year-old boy was charged and convicted of ‘defilement’ for having consensual and non-exploitative sexual intercourse with his girlfriend, aged 15. The magistrate’s court had sentenced the boy to 6 years imprisonment when he appealed to the High Court. The Court allowed the appeal. It further decided to discharge the accused because the court considered his conviction unjust. In discharging the boy, Justice Kamwambe said that:
The Appellant as the boy child has also to be considered for protection by the law. He is a child by virtue of being at school in Form 3. He-was only 17 years old. This are special circumstance to take into account. He deserve to be given another chance to proceed with school. … We should save him from getting in contact with hardened prisoners (the typos are in the original document).
Because the criminalisation of boys is rooted in an unjust law, such cases did not go away. Eventually, two boys took the matter to the Constitutional Court to challenge Section 138 of the Penal Code for unjustly criminalising boys who have consensual sex with their peer girlfriends. The Court has not yet concluded the matter.
After the 2022 amendment, the law is still unjust
It was during this time that Parliament expeditiously moved to amend Section 138 to deal with the anomaly the Constitutional Court is yet to address. However, in doing so, Parliament might have created another problem, that is, the older peers in the age ranges of 17 to 19 are now criminalised for engaging in sexual conduct that is otherwise consensual and non-exploitative.
What do you do about it?
Can we hope that law enforcers would not charge 19 and 18-year-olds for having consensual sex with their girlfriends or boyfriends two years younger than them? Or that prosecutors would use their discretion not to pursue charges? We have doubts. History has shown that manifestly unjust laws will still be enforced as long as they are in the statute books. Usually, it is the most vulnerable that bear the brunt of the injustice, such as the 17-year-old boy that Justice Kamwambe had to save from jail.
Should we hope that if prosecutors do not perceive the injustice, the Courts will step in to avert the unjust application of the law? Or, indeed, should this manifestly problematic legal provision not be reviewed NOW to avoid future unjust prosecutions and convictions?
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