A three-judge panel of the Constitutional Court will examine Malawi’s law on defilement in relation to the way it criminalises consensual sexual relationships.
The court will then determine constitutionality of law to the extent it applies to consensual and non-exploitative sexual relationships.
This comes as Chief Justice Andrew Nyirenda has certified as a constitutional matter the case of a 15-year-old boy who had sex with a girl aged 13.
Police arrested the boy earlier this year after the girl’s parents reported the matter to Police.
The boy was charged with defilement under Section 138(1) of the Penal Code which 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 only defence provided under law is that the accused can state that they had reasonable cause to believe that the girl was above 16 years.
Earlier this week, High Court Judge, Vikochi Chima, described the defilement law in Malawi as problematic because it criminalises consensual sex between teenagers who are close in age.
Chima said this in a ruling for an appeal of a case where Charles Gondwe, a boy aged 18, was acquitted on the charge of defiling a girl aged 15.
The judge 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 were 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.
