13/05/2026
When the Law Cannot Name the Crime, The Mpulungu Maid Case and the Legal Blind Spot on Boy Child Sexual Abuse in Zambia.
__________________________________________________
The Case That Exposed a Legislative Gap
In a ruling that has quietly sparked debate among Zambians in Zambia's Northern Province, a domestic worker from Mpulungu was sentenced to 18 months imprisonment after pleading guilty to forcing a 16-year-old boy to engage in s*xual in*******se with her. The case, which passed through the courts with relatively little public fanfare, raises a profound and uncomfortable question: does Zambia's law truly protect the boy child from s*xual abuse? and if so, why did the perpetrator receive a sentence so drastically lighter than the 15-year minimum that would have applied had the victim been a girl?
The answer lies buried deep in the architecture of Zambia's Penal Code and it is an answer that should trouble every legal mind, child rights advocate, and parent in this country.
Why the Maid Was Not Charged with Defilement?
To understand the 18-month sentence, one must first understand why the most serious available charge defilement was not applicable to this case.
Section 138 of the Penal Code, Chapter 87 of the Laws of Zambia, defines defilement as the unlawful carnal knowledge of a girl under the age of sixteen years. The word "girl" is not incidental. It is the operative legal term that defines the entire scope of the offence. Defilement, under this provision, is an inherently and exclusively gendered crime: it can only be committed against a female victim. A boy, however young, however vulnerable, however forcibly violated, does not fall within its protection.
This is not a matter of judicial interpretation or prosecutorial discretion. It is a matter of plain statutory language. The Mpulungu maid could not have been charged with defilement because the law, by its very letter, does not recognise a boy child as a possible victim of that offence. Had the victim in this case been a 16-year-old girl, the accused would have faced a mandatory minimum of 15 years imprisonment, with the sentence potentially extending to life.
The gulf between that outcome and the 18 months imposed in this case is not a reflection of the severity of the act it is a reflection of the gender of the victim. The act was the same. The harm was real. The law simply chose not to see it.
The Children's Code Act: A More Inclusive But Weaker Shield
The legal basis upon which the maid was charged and convicted is rooted in Zambia's Children's Code Act No. 12 of 2022, which came into force on 24 August 2022 following its assent by President Hakainde Hichilema.
Unlike the Penal Code, the Children's Code Act speaks in gender neutral terms. Section 19 of the Act is particularly instructive. It provides that:
"A person shall not subject a child to s*xual abuse, s*xual exploitation, use of a child in prostitution or induce or coerce a child to engage in a s*xual activity or expose a child to obscene or pornographic material."
Critically, "child" under this Act read together with the Constitution of Zambia means any person under the age of 18, without distinction of s*x or gender. The Act further reinforces this in Section 7, which explicitly prohibits discrimination against children "on the basis of race, colour, s*x, gender, age, language" or any other status. A boy child of 16 years is unambiguously a child under this framework, and forcing him to engage in s*xual in*******se constitutes s*xual abuse within the meaning of the Act.
It was therefore under the Children's Code Act that the Mpulungu maid was appropriately charged. Her guilty plea removed the burden of a contested trial, and the court duly convicted and sentenced her. In that narrow sense, justice was served. But the sentence that followed reveals the second, and perhaps deeper, failure of Zambia's legal framework.
The Limitations the Law Has Not Yet Overcome.
1. A Penal Code Frozen in Colonial Thinking
Section 138 of the Penal Code is a colonial inheritance. As legal scholars in the region have noted, the defilement provision traces its lineage to the Queensland Penal Code of 1899, adopted and spread across British colonial Africa through model codes drafted in the early twentieth century. It was designed quite deliberately to protect girls from adult men. Boys were simply not contemplated as possible victims of s*xual abuse by women. That conceptual failure, baked into law nearly a century ago, has never been corrected in Zambia.
The result is a Penal Code that, in 2025, still cannot name the s*xual abuse of a boy child as defilement. It cannot trigger its own severest penalties for this category of victim. It treats the forced s*xual violation of a 16-year-old boy as a matter falling outside the most serious provisions of the law on s*xual offences.
2. The Disparity in Sentencing: 18 Months Versus 15 Years
The contrast in applicable penalties between the Children's Code Act and the Penal Code's defilement provisions is staggering, and it is the single most visible failure in this case.
Under Section 138 of the Penal Code, a conviction for defilement carries a minimum mandatory sentence of 15 years imprisonment. Courts have, in aggravated circumstances, imposed sentences as high as 30 years with hard labour. The severity of this sentence reflects a legislative recognition that the s*xual abuse of a child is among the most grievous crimes a person can commit.
The Children's Code Act, by contrast, does not carry equivalent mandatory minimum sentences for s*xual abuse offences against children. The lesser sentences available under the Act while not insignificant fail to match the gravity that Zambian society and international human rights standards attach to the s*xual abuse of minors. An 18 month sentence for forcing a child into s*xual in*******se, regardless of the child's gender, is a sentence that the legal framework should not be capable of producing. Yet it did.
The disparity sends a message whether intended or not that the law values the bodily integrity and dignity of the girl child more than it values those of the boy child. This is constitutionally untenable under a framework that guarantees equality before the law, and it is morally indefensible under any standard of child rights.
3. Failure of Harmonisation Between the Penal Code and the Children's Code Act
The Children's Code Act of 2022 was rightly celebrated as a landmark piece of legislation. It consolidated previously fragmented child protection laws, domesticated international treaty obligations, and as World Vision Zambia's Advocacy Director Carol Mweemba noted at the time of its enactment addressed the fact that the Penal Code "did not sufficiently protect children over the age of 15 from s*xual abuse" in gender-neutral terms.
Yet the Act was enacted alongside the Penal Code, not in replacement of its s*xual offences provisions. The result is a two-track system: the Penal Code governs the most serious s*xual offences, with heavy penalties, but it does so in gendered terms that exclude boy victims. The Children's Code Act covers all children regardless of gender, but with penalties that do not match the gravity of the Penal Code's s*xual offence regime.
No mechanism exists to bridge these two frameworks no provision that elevates a Children's Code Act conviction to Penal Code sentencing levels when the facts are equivalent. A perpetrator who forces a boy child to have s*x will always be sentenced under the lighter regime, not because their crime is less serious, but because the law has assigned their victim to the wrong legislative track.
This is a failure of harmonisation that Parliament has yet to address. The Children's Code Act cannot substitute for a Penal Code that refuses to see boy children as victims deserving of its full protection.
4. The Absence of Gender-Neutral Defilement Provisions
Perhaps the most direct legislative remedy and the one most conspicuously absent is a simple, gender-neutral formulation of the defilement offence in the Penal Code. Many jurisdictions in the region and globally have moved in this direction. A reformed Section 138 that reads "any child under the age of sixteen" rather than "any girl under the age of sixteen" would, at a stroke, close the protection gap without requiring any further structural reform.
Zambia has not taken this step. Bills to reform the Penal Code's s*xual offences provisions have been discussed in legal and civil society circles, but no legislative amendment of Section 138 to include boy victims has been passed into law. In the meantime, cases like the Mpulungu maid prosecution will continue to proceed under a framework that under-values the harm suffered by boy children.
Justice Partial, Reform Overdue
The Mpulungu maid is rightly serving time in prison. She committed a serious wrong against a child, and the court that sentenced her was correct to do so. The Children's Code Act provided the legal basis for her conviction, and the guilty plea brought some measure of accountability. In that limited sense, the system functioned.
But function is not the same as adequacy. A society that sentences a woman to 18 months for forcing a boy child into s*x, while reserving 15 years to life for the same act committed against a girl child, has not achieved equality before the law. It has achieved a legal architecture that protects children differently depending on their gender and that is a failure both of principle and of practice.
The Zambian legislature must urgently attend to three things: amending Section 138 of the Penal Code to extend defilement protections to all children regardless of gender; introducing mandatory minimum sentences under the Children's Code Act for child s*xual abuse offences equivalent to those in the Penal Code; and enacting clear harmonisation provisions that ensure consistency between the two frameworks when prosecuting s*xual offences against children.
Until these reforms are made, the law will continue to whisper what it should shout: that the boy child's body matters, that his dignity is protected, and that those who violate him will face the full weight of legal conscience. As the Mpulungu case shows, we are not yet there.
Disclaimer, This article is an independent legal commentary based on the Penal Code Chapter 87 and the Children's Code Act No. 12 of 2022. It does not constitute legal advice, for legal advise seek the services of a qualified legal practitioner in Zambia.
- Kashweka Demian Bihinda
The author is a Law student, Activist and researcher of law, politics , Policy, democracy, human rights and political history in Zambia, he writes for Nkrumah Law and Policy Research Society, and from his room in Kabwe, Zambia.
National Legal Aid Clinic for Women
Legal Scholars' Guild of Zambia
Laura Miti
Chapter One Foundation
Unicef Zambia
UNICEF
World Vision Zambia
Restless Development
Save the Children Zambia
Peace Child International
Plan International
Plan International Zambia
Human Rights Analysis Zambia
Zambia Law Development Commission
