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MPs for review of sexual crimes

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CHIEF JUSTICE NYIRENDA

The Legal Affairs Committee of Parliament wants to change Penal Code registration requirements for minors who commit sexual crimes.

Last week, committee members petitioned Director of Public Prosecutions (DPP) Steve Kayuni, officials from the Judiciary and the Malawi Law Commission to find a way of saving young offenders from long sentences some of them are serving.

Committee chairperson Peter Dimba said it was worrying that the law on sexual offenders favoured young girls.

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“We are concerned with criminalisation of consensual and non-exploitative sex between adolescents. It is not fair that boys are becoming victims of the law. Let us ensure that young offenders, including boys, in sexual offences are treated fairly,” Dimba said.

Kayuni said there were plans to review the law.

He said Malawi may consider going the same route as South Africa, where there is no criminal liability where both the offender and the victim are under majority age and are between the ages of 12 and 16 years.

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The DPP said if the offender is above 16 years of age, there is no criminalisation, so long as the age difference between him and the victim is two years.

Kayuni cited the example of Botswana, where there is no criminal liability if both the offender and the victim are under the age of 18. Where the offender is over 18 years, there is no offence if the age gap between him and the victim is two years.

The public prosecutor further said, in Namibia, there is no criminal liability if both the offender and the victim are 14 years old or below.

He added that, where the offender is over 14 years old, there is no criminal offence if the age difference between him and the girl is three years.

Kayuni also said it had been argued that the law on defilement was meant to protect children from predatory sex offenders while appreciating experimental sex between adolescents who are close in age.

“The DPP agrees with this approach as it ensures that the law addresses the vice it was created for; protection of girls from exploitative and abusive sex occasioned by a power imbalance both in age and status of the perpetrator,” Kayuni said

Criminalisation of consensual and non-exploitative sex between adolescents has sparked debate and been highlighted in some fairly recent cases.

The issue that has sparked debate on the matter is the case of Yamikani Paul versus the Republic, Criminal Appeal No. 16 of 2017, where the appellant was 17 years old and the victim was 15 years old. Both were students at the same secondary school, one in form three and the girl in form one, and were in a sexual relationship.

The boy was reported to have defiled the girl and he was convicted of the charge and sentenced accordingly.

On appeal, the High Court discharged the appellant absolutely on the basis of Section 337 of the Criminal Procedure and Evidence Code.

The court stated that the case was peculiar as there was no power imbalance between the appellant and the victim, considering the age gap and the relationship that they had.

The other case is that of Alex Jimu versus the Republic, Review Case No. 5 of 2021, where the applicant was 15 years old and in a consensual, non-coercive relationship with a girl who was 13 years old. The boy was arrested and charged with defilement.

The matter was referred to the Chief Justice (CJ) for certification as a constitutional cause in order to determine whether or not the offence of defilement under Section 138 of the Penal Code, as it applies to consensual non-exploitative sexual relations between adolescent children, violates the applicant’s right to privacy and dignity as provided for under sections 19 and 21 of the Constitution.

Another case is that of the State versus the Inspector General of Police and the Attorney General ex-parte Stanford Siliro Shaba, where a 13-year-old boy was arrested for defilement.

Apart from the case raising similar issues as the Jimu case, this case also touched on the propriety of the arrest and detention of a minor in a cell together with adults and in conditions not befitting a child.

The most recent case is of the Republic-vs-Charles Gondwe, Review Case No. 3 of 2021, in which the High Court made observations on the over-criminalisation of consensual sexual relationships between teenagers and the need to consider age-appropriate laws for consensual, non-coercive sexual relationships between adolescents.

The court suggests, in this case, that it is time Malawi adopted the Close in Age Approach in sexual offences.

“Generally, other jurisdictions have ‘Romeo and Juliet’ laws for sexual relations between persons within a certain age range. Usually, a perpetrator has to be no more than four years older than the victim,” the judgement reads.

However, CJ Andrew Nyirenda has certified the Matter as constitutional and has appointed three judges for the case.

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