The Lilongwe Senior Magistrate Court will next month deliver its ruling on an application by Nyale Institute to stop a case where a 19-year-old boy is facing criminal charges for having sex with a 17-year-old girl.
Brian Taulo, aged 19, is facing criminal charges for having sexual intercourse with a 17-year-old girl against provisions of the amended Section 138 of the Penal Code which took effect on 21st February 2023 and prohibits adults from having sexual intercourse with children, thus those under 18 years.
However, Nyale Institute, an NGO fighting for sexual reproductive justice wants the court to stay proceedings, saying the amended law puts 19 and 18-year-olds (adults) in a precarious situation, prohibiting them from engaging in sexual conduct with a 17-year-old (a child) and yet they are peers.
Ireen Mathanga, a lawyer representing Taulo and Nyale Institute, argues that 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,” she said.
Mathanga further added that the provisions of the penal code, which the Institute is challenging in the Constitutional Court, raise critical constitutional questions, which in the interest of justice should be determined by the Constitutional Court.
The state through prosecutor Innocent Dzatopetsa, objects that Taulo violated the law and it is legitimate that the trial continues in the Magistrate Court.
Lilongwe Senior Resident Magistrate Wanangwa Nyirenda adjourned the case to 20 May 2025, when he is expected to deliver a ruling on whether to go ahead with hearing the case or pave the way for a Constitutional Court determination of the challenge of Section 138 of the Penal Code as amended in February 2023.
Meanwhile, Nyale Institute Executive Director Godfrey Kangaude said 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.
