Abstract:
Despite the constitutional guarantees on equality and the rights of children, section 138 of the Penal Code that creates the offence of defilement fails to protect and recognise the rights of the boy child in Malawi. This results in the violation of his fundamental rights such as his right to equal status and recognition before the law, equal protection, privacy, dignity and development. A recent proposed amendment to the section has introduced the defence of being close-in-age with the victim, in a bid to decriminalise consensual and non-exploitative sex which the boy child can invoke. However, this defence will only apply to the boy child who is 2 years or less older than the victim. This means that the boy child who falls outside the stipulated age category will still be exposed to the harshness of the justice system at a tender age, and eventually be punished for exploring his sexuality as part of his development.
