The Lilongwe Senior Resident Magistrate’s (SRM) Court has declined to pause proceedings in a case where a 19-year-old male is challenging the constitutionality of Section 138 of the Penal Code.
Senior resident magistrate Wanangwa Nyirenda on Tuesday ruled that he will not grant the accused, Brian Taulo, a stay of proceedings to allow him to refer his case to the Constitutional Court.
Taulo filed an application before the High Court of Malawi to determine whether Section 138 of the Penal Code, the provision under which he is being prosecuted, raises constitutional questions that should be addressed before his case proceeds in the magistrate’s court.
“If the application has been filed, the High Court is likely to respond in a timely manner, especially given the public interest nature of the case,” said Nyirenda.
He has since set June 27, 2025 to continue hearing the case.
In the case, Taulo is facing criminal charges for having sexual intercourse with a 17-year-old girl contrary to provisions of the recently amended Section 138 of the Penal Code.
According to the law, a 17-year-old is a child.
Nyale Institute executive director Godfrey Kangaude expressed concern about the far-reaching effects of Section 138.
He noted that the law criminalises consensual sex between adolescents simply because one is legally an adult, 18 years old, and the other is a child at 17.
“Clearly, the law is unjust and needs to be reviewed,” said Kangaude.
Taulo is being represented by lawyer Ireen Mathanga from Nyale Institute.
“If the application has been filed, the High Court is likely to respond in a timely manner, especially given the public interest nature of the case.”
Wanangwa Nyirenda
Lilongwe Senior Resident Magistrate
