The Lilongwe Senior Resident Magistrate’s Court has reserved its ruling on an application by Nyale Institute to stop a case in which a 19-year-old boy is facing criminal charges for having sex with a 17-year-old girl against provisions of the Penal Code.
Senior resident magistrate Wanangwa Nyirenda adjourned the case to May 20 2025 when he is expected to rule on whether to go ahead 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.
In the case, 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 February 21 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.
She said: “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 the way for the Constitutional Court to make a determination on our challenge of the amended Section 138 of the Penal Code.”
The State which is being represented by prosecutor Innocent Dzatopetsa argued that Taulo violated the law and it is legitimate that the trial continues in the magistrate’s court.
