The Lilongwe Senior Resident Magistrate Court has declined to suspend proceedings in a case where a 19-year-old is challenging the constitutionality of Section 138 of the Penal Code, which criminalizes sexual relations between adults and 17-year-olds.
Brian Taulo is facing criminal charges for engaging in sexual intercourse with a 17-year-old girl, violating the recently amended Section 138 of the Penal Code, which considers a 17-year-old as a child.
The amendment, which came into effect on 21 February 2023, prohibits adults from having sexual intercourse with minors, but Taulo contends that the law under which he is being prosecuted raises fundamental constitutional issues that should be addressed before the Constitutional Court.
However, on Tuesday, 20th May 2025, Senior Resident Magistrate Wanangwa Nyirenda ruled that he would not grant Taulo a stay of proceedings to allow the matter to be referred to the Constitutional Court. Nyirenda stated that since the High Court has not yet ruled on Taulo’s application to certify the case as constitutional, the Magistrate’s Court has no grounds to pause the trial.
“If the application has been filed, the High Court is likely to respond promptly, especially given the public interest nature of the case. If the High Court grants the application, the accused would be free to re-apply for a stay in this court,” said Nyirenda
Meanwhile, His Worship Nyirenda has set 27 June 2025 as the date to continue hearing the case.
Commenting on the outcome of the stay of proceedings case, Nyale Institute Executive Director Godfrey Kangaude, an expert in childhood sexuality and the law, expressed concern about the far-reaching effects of the poorly drafted Section 138.
He noted that the law criminalises consensual sex between adolescents simply because one is legally an adult, for instance, an 18-year-old and the other is a child is 17-year-old.
“The law is unjust and needs to be reviewed. But now, the Magistrate will proceed with a case that, at the end of the day, only perpetuates injustice. Of course, this is not the Magistrate’s fault, he is simply following the law,” said Kangaude.
He expressed hope that ‘this injustice’ could still be averted, either through the Director of Public Prosecutions (DPP) exercising his powers to halt the prosecution or through the High Court promptly responding favourably to the constitutional application before the Magistrate proceeds to determine the case.
Nyale Institute, an NGO fighting for sexual reproductive justice, has been advocating for the review of Section 138 of the Penal Code, which aims to protect children from harmful sexual conduct.
It argues that the law should not, on the other hand, criminalise consensual, non-exploitative sexual conduct between adolescents who are close in age, even if one of them is legally considered an adult.
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