The Lilongwe Senior Magistrate Court has reserved its ruling on an application by Nyale Institute, an NGO fighting for sexual reproductive justice, to stop a case where a 19-year-old boy is facing criminal charges for having sex with a 17-year-old girl against provisions of the penal code which the Institute is challenging in the Constitutional Court.
Lilongwe Senior Resident Magistrate Wanangwa Nyirenda adjourned the case to 20 May 2025 when he is expected to deliver a ruling whether to go ahead hearing the case or pave way for a Constitutional Court determination of the challenge of Section 138 of the Penal Code as amended in February 2023.
In the case, 19 -year-old Brian Taulo is facing criminal charges for having sexual intercourse with a 17-year-old girl against provisions of the recently amended Section 138 of the Penal Code which took effect on 21st February 2023 and prohibits adults from having sexual intercourse with children.
According to the law, a 17-year-old is a child.
Lawyer Ireen Mathanga representing Taulo and Nyale Institute in the case said they have noted a gap in the amended law as it puts 19 and 18-year-olds (adults) in a precarious situation because the law prohibits them from engaging in sexual conduct with a 17-year-old (a child) and yet these are peers.
“This peer group is undoubtedly engaging in consensual sex with each other. Prosecuting an adolescent for engaging in consensual, non-exploitative, and non-abusive sex with his fellow adolescent infringes the adolescent’s rights to privacy, dignity, liberty, and association.”
“This is why we want this court to stay proceedings so that we should pave way for the Constitutional Court to make a determination on our challenge of the amended Section 138 of the Penal Code.
She continued: “The matter raises critical constitutional questions, which in the interest of justice should be determined by the Constitutional Court,” said Mathanga.
“The state which is being represented by Police Prosecutor Innocent Dzatopetsa argued that Taulo violated the law and it is legitimate that the trial continues in the Magistrate Court.
Nyale Institute Executive Director Godfrey Kangaude said in an interview yesterday that they hope the amended law would be looked at critically to avoid inflicting unnecessary pain and injustice on adolescents.
“Nyale Institute is concerned that Section 138 can cause injustice. We are not blind to the fact that many 19 and 18-year-olds have sexual intimacy with their boyfriends and girlfriends of 17 or 16, and this should not be a criminal offence if it is consensual and non-exploitative,” said Kangaude.
“The matter raises critical constitutional questions.”
Ireen Mathanga
Lawyer
