The Republic v Wiseman Precious Samson (Confirmation Case 39 of 2026; Criminal Case 185 of 2025 (before FGM Court at CHIDOGI)) [2026] MWHC 17 (1 April 2026)

1 REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CONFIRMATION CASE NUMBER 39 OF 2026 (Being Criminal Case 185 of 2025 before FGM Court at CHIDOGI) THE REPUBLIC v. WISEMAN PRECIOUS SAMSON CORAM: HONOURABLE JUSTICE MZONDE MVULA Mrs. E. Khonje, Court Clerk and Official Interpreter. ORDER ON CONFIRMATION Mvula, J. 1.0 Introduction 1.1 The convict, aged 21 at time of conviction after trial, was duly found guilty, convicted and sentenced on 3rd September 2025 for the offences of Child abduction contrary to section 78(1) of the Child Care Protection and Justice Act, and having sexual intercourse of a girl E.M. aged 17, contrary to section 138(1) of the Penal Code for counts 1 and 2 respectively. He was sentenced to 4 years’ imprisonment in count 1 and 10 years’ imprisonment for count 2, respectively. 1.2 The material facts on which conviction was entered , averred that convict and the girl were in a romantic love affair, engaging in sexual intercourse. The convict was staying with E.M. as “man and wife”. It has just happened that E.M got pregnant. T hat is what stirred the net of the hornets. In a typical act of naitivity, the pair bolted and crossed into neighbouring Zambia. Whilst there, convict started getting calls from home, about the whereabouts of E.M . His parents were arrested over the whereabouts of 2 their daughter through him . He reacted by sending E.M back home, by bike. He had the audacity to ask the biker to collect hire fare at her delivery home. Later on, he too was traced by Police. He got arrested over the two counts above. At trial, he pleaded guilty and he was sentenced accordingly. 1.3 From the pregnancy, one may indeed deduce that in the absence of another carnally knowing the victim, th e offender is responsible for pregnancy. Laws of nature provide that pregnancy takes place after penetration of female sexual organ by male sexual organ. Much as there was penetration to make the offence, I look at how this was done. The age gap is little: only 5 years. The convict is 22 while the victim 1 7 years of age. They can be said to be in the same age cohort for purposes of the law under section 83(1) of Child Care Protection and Justice Act. 1.4 No wonder they were in “a relationship .” Typical i n our community, advancement of technology has made youth share sexual fantasies by irresponsible use of technological gadgets. No wonder cases of entry into sexual activity by persons of “tender years” is common. Here, the convict and E.M were in a sexual rela tionship, which was known to the families . Their disapproval, led both bolting into neighbouring Zambia to live their fantasy. The Law 1.5 The offence is made out because the victim is below age 18 under section 138(1) of the Penal Code . Convict admitted sexual involvement in his caution statement. The two fled together because they are clearly in love. In the loose sense, the act reveals that this was “consensual” sexual intercourse. At law however, this strictly does not arise by operation of the law. A girl under age 17 is incapable to render consent to sexual intercourse. The facts above with multiple penetration to a girl under age of consent constitutes the offence in point. See Chipala v Rep [1993] 16(2) MLR 498. 3 2.0 Sentence 2.1 Age is a critical factor in sentencing. The closer the ages, the more liberal courts find in sentence See Rep v Inani M’bwana Confirmation case 542 of 2021 (Unreported); Rep v Ledison Jeffrey Confirmation case 636 of 2023 (unreported). Girls closer age to upper cei ling for offences under section 138(1) of the Penal Code, have matured sexual organs . As such, can and do engage in intercourse with boys in similar age cohorts. Courts have tended to treat them as deviant and not as criminals per se to impose reasonable if not flexible sentences. Law does not operate in a vacuum. It operates in society where such occurrence is reality. 2.2 Little wonder the High Court reviewed and treated positively, a conviction and propriety of compensatory order paid by a 19-year-old convict who had paid K1,030,000 to court to girl not to prosecute case, but allow it as compensation under section 32 of the Penal Code . The girl beca me pregnant and needed support. See Republic v Timothy Mathias Criminal Review 25 of 2022 (Lilongwe Registry- unreported). 2.3 The life of the girl to case under review, just as of those in these cited cases above, changed forever. E.M has become a mother when she was not mentally and socially ready for such a daunting task. Her parents will be forced to play grandparents, and all have to raise the child delivered to another child. This Court, therefore, owing to the thinking in the case of Timothy Mathias above, will not confirm 4 years’ and 10 years’ sentence the First Grade Magistrate at Chigodi in Kasungu imposed. This is a case where the convict , who for all intents and purposes was in relationship which the family of victim were already well aware of , should not escape responsibility to raise his child and take care a lady he has made pregnant. 2.4 The Penal Code allows for payment of compensation in addition to the sentence imposed under section 32(1) of the Penal Code. It reads: “Any person who is convicted of an offence may be 4 adjudged to make compensation to any person who has suffered personal injury or loss of property by such offence. Any such compensation may be either in addition to or in substitution for any other punishment. ” [Emphasis supplied] 2.5 Section 32(2) of the Penal Code in on point and comes to the aid of E.M , as: “A person shall not be precluded from instituting civil proceedings but the court shall take cognizance of the earlier compensation awarded in criminal proceedings under subsection (1).” 2.6 The victim has suffered personal injury . She has become a mother when she was not ready to. Her future is changed forever with this effect of child bearing and minding it after birth, not to mention the physical toll on the body on ante natal transformation . S ection 32(1) of the Penal Code should come in w here youths make each other pregnant . We should not solve one problem by creating another. The , solution does not lie in sending the young offender to jail . He has a more serious role than have him locked away and let the young mother and her parents only, to grapple with raising the child, without its father. 2.7 Rather, the thinking of this particular court, has always been that since the man was doing things reserved for the ambit of matured, he has to take full responsibility of his actions. In this regard, such young man has to bear responsibility over the c hild born and not keep him away at prison to burden the lady and the parents with such arduous responsibility . If sentenced and sent to jail, u pon expiry of sentence, he is bound to resent the child . The family of the mother testified against him to go to jail and it becomes a natural reaction by the offender. What is more, he becomes hardened, given harsh conditions of our prisons. This is not what just ice is. Justice needs not breed another problem . 5 2.8 In making compensatory order in an appropriate case, the complainant must have opportunity to be heard. See R v Chilunga 3 ALR Mal 128. This notwithstanding, the Magistrate should have oriented the family of E.M. the recipient of the compensation, that she is not barred from commencement of a civil claim over the same act, under section 96 the Marriage Divorce and Family Relations Act. 2.9 We ought to treat these cases in this manner especially where the re is narrow age gap between the victim and the offender. Casual relationships amongst youngsters leading to love relationship , occur in the community . Arresting the problem which has seen early pregnancy, requires a societal intervention by consultation w ith youths, parents, religious leaders and custodians of culture in our community. The solution does not lie in criminal law route by imprisonment to solve a riddle that touches on matters of the heart . 2.10 This approach ensures that the convict herein is responsible for his issue born, in love and visitation rights education, general welfare and best interests of the child, until it attains age of majority. After all children regardless of circumstances of b irth have the right to be raised by and know their parents under Section 23(3) of the Constitution. A punishment should fit the offender, the offence , and be fair all round . 2.11 On such authority, Section 337(1)(c )(i) of the Criminal Procedure and Evidence Code, the Code, is one case disposal mechanism. Magistrates should use it often, other than get overly get excited each time handing down option of imprisonment. 3.0 Conclusion 3.1 In the circumstances I s hall order the convict to pay the sum of K200,000, as compensation to the victim to assist which expenses over the child to be delivered unto E.M through the convict. 3.2 When the first K100 ,000 is paid he must be released f rom Kasungu 6 prison and pay the other K100 ,000 within 60 days of the date of release. 3.3 This court makes the discharge under section 337(1)(c )(i) of the Code absolute upon payment of the K2 00,000 in full. The discharge has been made to facilitate the victim to pursue civil remedy under section 96 the Marriage Di vorce and Family Relations Act , if so minded . 3.4 Most importantly, it ensures that the father of the would be born child is available and play the intended role, a father. This avoids a situation where children are born while father s are in prison, growing up fatherless . Law must be properly applied, well balanced, so that the Judiciary remains relevant in execution of its mandate, according to the Constitution of the Republic of Malawi . 3.5 The Assistant Registrar for the High Court (Criminal Division) in Lilongwe, should ensure compliance and enforcement made under 3.1 and 3.2 above according to law. Made in court this 1st April 2026 JUDGE.