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1 April 2022, Malawi 

We applaud the parliament for considering the plight of the Malawian boy child. CHREAA has seen a lot of young boys being incarcerated for indulging in consensual and non-exploitative sexual relations with their female peers. CHREAA will always be against any kind of sexual exploitation of young girls whilst at the same time ensuring that both the boy and girl child receive equal protection under the law.

-Victor Mhango, Executive Director of CHREAA

 

We are pleased with this development as it supports the case that is before the Constitutional Court, and we hope the two processes can complement each other.

-Chikondi Chijozi of SALC

 

We, the undersigned organizations, endorse the decision by the Malawi National Assembly dated 30 March 2022 to support the Legal Affairs Committee Report on the review of defilement laws as they apply to consensual, non-exploitative sexual relationships between adolescent children.

The Report by the Legal Affairs Committee comes after consultations with the Director of Public Prosecutions (the DPP), the Judiciary, and the Malawi Law Commission, which highlighted the injustices that resulted from the present legal regime on defilement. The Committee concludes that the current law on defilement is unconstitutional as it discriminates against the boy child. The report illustrates that over 100 boys have been incarcerated for defilement which constitutes a matter of great concern, while the most affected are people in remote and rural areas of the country.

While other countries such as South Africa, Botswana, and Namibia have addressed this issue with a close in age exception, Malawi is yet to implement such legislation. In the report, the DPP suggests such a close in age exception, under which an exception to the offence of defilement exists if the perpetrator and the victim are close in range in terms of their age. The DDP also observed that the law on defilement should protect children from predatory sex offenders while appreciating the experimental sex between adolescents who are close in age.

It is commendable that Parliament supported the report and recommended the urgent review of the defilement laws, which will assist in protecting the boy child and ensure the element of equality before the law for both a girl and a boy child.

The National Assembly’s endorsement of the law reform comes at a time of ongoing proceedings by two adolescent children that aim to challenge the offence of defilement. The applicants in this matter seek an order from the court that declares the offence of defilement unconstitutional for violating their rights to privacy, dignity, and equality and for being inconsistent with a child’s best interests.

Therefore, we urge the Government to speed up the process of reviewing the law as recommended by Parliament to ensure the protection of the boy child in accordance with the Constitution.

Signed by: Centre for Human Rights Education, Advice and Assistance, Paralegal Advice Service Institute and Southern Africa Litigation Centre.