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Teen boys languish in jail for consensual sex

Hundreds of teen boys  are serving jail terms after being convicted of defilement for engaging in consensual and non-exploitative sex with girls of their age, a human rights activist has revealed.

Centre for Human Rights Education, Advice and Assistance (Chreaa) executive director Victor Mhango said the situation was deplorable and his organisation has taken steps to rescue the boys.

He said the situation is sickening.

Mhango said: “It is sad. Some teen boys have been handed down an 18-year-jail term out of these consensual and non-exploitive sexual relationships with girls of their age.

Mhango: This law should be repealed

“This is a bad law that should have been repealed or at least amended a long time ago. We have teen boys serving jail terms in our crowded prisons.”

Section 138(1) of the Penal Code states that “any person who unlawfully and carnally knows any girl under the age of 16 shall be guilty of a felony and shall be liable to imprisonment to life.”

This law, which is also under review in Parliament, does not spare boys aged as low as 15, even in situations where they have slept with girls aged 16.

In Machinga, a magistrate’s court convicted a 15-year-old boy for defiling a 16-year-old girl in April 2019.

However, the boy was lucky as first grade magistrate Jones Masula gave him a three-year suspended sentence and fined him K50 000.

In other courts, notably in Zomba in June 2021, a teenage boy was sentenced to nine years imprisonment and this is the case among many other cases where teen boys get up to 18-year jail terms for consensual sex with girls of their age group.

Meanwhile, a Save the Children sponsored Children’s Parliament has added weight to calls by human rights bodies lobbying Parliament to decriminalise consensual sex among minors.

Mzimba Children’s Parliament Speaker Rachel Ngulube is one latest voice to lobby Malawi’s Parliament to amend the law that punishes boys only for having consensual sexual relationships with girls.

“The law should be fair to both children. It is ether both children get punished or spared by the law,” he told the Children’s Parliament sitting in Mzimba South recently.

According to the law, defilement of girls under the age of 16 carries a maximum sentence of life imprisonment with hard labour, which is equal to capital offences such as murder, treason and rape.

Parliamentary Committee on Social and Community Affairs chairperson Savel Kafwafwa admitted that the current law on defilement is not fair to children of the same age who engage in consensual sex.

The Dedza North legislator said in an interview this was a complication because both are children and get defiled but the law only punishes one.

On April 1 1930, Malawi enacted its current Penal Code, which is based on the Colonial Office model code. Section 138 of the Penal Code, the defilement provision, restricts boys and men from sexually accessing girls below a specified age.

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