Many children are accessing morally damaging pornographic material through smart phones, internet and television. Consequently, many children are engaging in sex. However, while the Constitution of the Republic of Malawi defines a minor as anyone aged below 18, when it comes to defilement offences, the very same law treats under-12 boys as adults. JAMESON CHAULUKA, in this Friday Shaker, discovers this tale of seeming contradiction in the justice system.
BRYSON Chitsa’s son, who will only be addressed as DC in this story, then aged 16, had purported defilement charges hanging on his head. The boy was accused of defiling his 15-year-old girlfriend in June 2018.
Defilement is defined as any sexual intercourse with a child under the age of 18, regardless of whether there is consent or not.
The matter of DC came to light after the girlfriend fell pregnant and the boy allegedly denied responsibility, prompting her parents to report the matter to police.
“When the girl’s parents came to our house to discuss the matter, they didn’t find me or my wife and that is when they went straight to police,” the father said.
Chitsa said, instead of playing mediator, the police pressed the charge of defilement on DC’s head, saying the girl was too young to give consent to a sexual act.
“Initially, the girl’s parents wanted the boy to be supporting the girl but, after looking at the age of the girl, the police charged my son with defilement. They said the girl was too young to give consent to anything to do with sex.
“DC spent two weeks in police custody and, after being released, was arrested again, only to be released again. The police later asked us to give mediation a chance but we have not met,” Chitsa said visibly failing to come to terms with what might befall his son.
DC’s case brings to light the unfair part of the law which presumes a young girl not capable of consenting to a sexual act while believing that a boy must be fully aware of the consequences of the same act.
It is clear that DC and his girlfriend are children, as the Constitution of the Republic of Malawi and Child Care, Protection and Justice Act of 2010 stipulate that children are persons under the age of 16.
The Marriage, Divorce and Family Relations Act of 2015 sets the minimum age of marriage at 18 years for boys and girls.
On February 14 2017, Constitutional Amendment Act number 36 was passed by Malawi’s Parliament, amending section 22(7) of the Constitution to state that 18 years should be the minimum age for marriage.
Again, United Nations Convention on the Rights of the Child and other international treaties define a child as anyone under the age of 18.
The case of DC and his girlfriend pose a test to the Constitution.
“All children, regardless of the circumstances of their birth, are entitled to equal treatment before the law,” reads section 23(1) of the Constitution.
The difference between rape and defilement in the Penal Code, a book with all the criminal cases and their prescribed penalties, is consent.
According to the law, small girls are too young to give consent to a sexual act as they cannot fully comprehend consequences of having sexual intercourse; hence the element of consent does not apply.
“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,” reads section 138 of the Penal Code.
Chitsa, said at some point, DC missed school for over a week at community day secondary school where he had been selected to start form one as he was in police custody.
On the responsibility of the pregnancy, Chitsa said DC told his parents that he had been in the relationship with the girl for a shorter period than the stage of the pregnancy, claims which The Daily Times has not independently verified.
The arrest of DC also raises a number of questions on whether it was done according to international laws and the CCPJA, which says a child should be arrested as a last resort.
“In addition to the provisions of the Criminal Procedure and Evidence Code, or of any other written law relating to the arrest of a child, a police officer or any person arresting the child or the person who appears to be a child shall have due regard to the observance of the principle of the best interests of the child as well as the general welfare of the child; and make the arrest in accordance with the guidelines set out under this Division,” reads Section 89 of the Child Care Protection and Justice Act.
Law expert Michel Goba Chipeta said there are legal frameworks which have to be followed when children are in conflict with the law.
“My general response is that the laws say children can commit an offence. If that happens, there are laws which govern all the processes and what must be done and how they should be prosecuted,” he said.
But while boys are being arrested for defiling girls, mostly in relationships, little known, perhaps, to the law enforcers is the landmark ruling in Yamikani Paul v The Republic, Criminal Appeal No. 16 of 2017, in which Justice Maclean Kamwambe quashed a ruling of a lower court convicting Paul of defilement on his own plea.
Paul, 19 years and 10 months old and in form three, was convicted of defiling his 15-year-old girlfriend, who was in form two at the same school, and was sentenced to six years imprisonment.
Kamwambe said circumstances of the alleged crime indicated that the two were engaging in some sort of sexual experience.
“In the face, the girl was 15-years-old and they were all attending the same school; the girl in form two and the boy in form three. They were in a relationship and it was apparently ordinary that they should engage in sexual experience,” reads the ruling in part.
Esmie Tembenu, former magistrate at the Child Protection Court in Blantyre, said, according to the law, when it comes to minors, the law treats boys and girls differently for biological reasons.
She said an offence of defilement is that involving a boy aged 12 and above and an under-16 years girl.
“For a boy aged below 12, it is presumed that they are incapable of sexual intercourse but from 12 and above, a boy can be charged with defilement. Such cases are supposed to be heard in a child justice court; of course, in a child friendly manner.
“According to the Penal Code, Section 14, where a boy is aged 12 and above has been having sexual intercourse with a minor, a girl below 16, then that boy can be charged with defilement. The reason being that of having canal knowledge of a girl under-16. If the girl and boy are aged 16 and above then the boy can be charged with rape.
“These rape and defilement offences, on a larger side, protect women and girls because the presumption is that a boy or a man cannot be defiled as there is an element of penetration. A woman cannot penetrate a man. That is why a girl or woman found guilty of being involved in sex with a minor—a boy—is charged with the offence of indecent assault. A woman can only seduce a man or a boy by touching private parts so that he can penetrate,” Tembenu said.
She was referring to amended Section 138 on ‘Sexual intercourse with a girl below 16 years
of age’ which reads as follows: “Any person who carnally knows any girl under the age of sixteen years shall be guilty of a felony and shall be liable to imprisonment for life. (ii) Any person who attempts to have carnal knowledge of any girl under the age of sixteen years shall be guilty of a felony and shall be liable to imprisonment for fourteen years.”
Godfrey Kangaude of the University of Pretoria published a paper on a similar subject, titled Adolescent Sex and ‘Defilement in Malawi Law and Society, challenging that sections 138 and 160 of the Malawi Penal Code were shaped by colonialists’ notion of childhood.
“The social practices regulating sexual conduct of children existed in Malawi before the introduction of Western notions of an age of consent. The introduction of a Western system of regulation, therefore, created a pluralistic environment in which multiple regulatory systems coexist. In traditional Malawi, the most important and significant marker of attainment of adulthood is puberty and, in some cultural groups in Malawi, it is marked by initiation rites.
“At puberty, the child is recognised as capable of adult sexual conduct, and the initiation rites mark entry into adulthood. Generally, girls are taught to avoid sex with boys in case they become pregnant before marriage, which would bring shame and dishonour to the family,” Kangaude writes.
On increasing cases of children’s access to sex, Tembenu said while in office, she used to handle an average of eight cases concerning minors’ sex every month, a development she attributed to children’s increased access to pornographic material.
“Many children are engaged in sex due to indulgence in pornography which they access on television and social media. They also copy from pornography that is practiced in the home,” Tembenu said.
According to the law on electronic transaction, any person who “produces pornographic material for the purpose of its distribution through a computer system, (b) reproduces pornographic material for the purpose of its distribution through an information system (c) offers or makes available any pornographic material through an information system (d) exposes a child to pornographic material through an information system, (e) distributes or transmits any pornographic material through an information system, (f) procures any pornographic material through a computer system for oneself or for another person; or (g) possesses any child pornographic material in a computer system or on a computer data storage medium commits an offence and shall, upon conviction, be liable to a fine of K10,000,000 and to imprisonment for fifteen years.”