A High Court Judge says the defilement law in Malawi is problematic because it criminalises consensual sex between teenagers who are close in age.
High Court Judge, Vikochi Chima, said this in a ruling for an appeal case where Charles Gondwe, a boy aged 18, was acquitted on the charge of defiling a girl aged 15.
Section 138(1) of the Penal Code says it is a crime to have sex with a girl under the age of 16. The offence attracts a maximum of life imprisonment. The law, however, provides that it shall be sufficient defence for the accused to state that they had reasonable cause to believe that the girl was above 16 years.
In the lower court, Gondwe argued that he was told by the girl that she was she was 17 years old at the time they had sex.
The girl also confirmed this during cross-examination and further confirmed that Gondwe was the third boy she had slept with. She also revealed that her parents met the boy and had started a process for the two to get married.
Malawi’s Blantyre Senior Resident Magistrate Elijah Blackboard Dazilikwiza Pachalo Daniels acquitted the boy on the charge of defilement based on the defence.
The state took the matter to the High Court for review and Judge Chima on 25 October, 2021 ruled that the acquittal was a right one.
Chima, in the judgment, has called on lawmakers to review the defilement law in such a way that it accomplishes its intention of preventing grown men from taking advantage of girls.
“The way other countries such as Canada and South Africa have done it is to make available a defence of consent in a situation where the accused and the complainant are close in age and where the complainant is at least a certain age, say twelve or fourteen years, and the accused is no older than say, five years than the complainant,” said Chima.
