Magistrate declines to stay proceedings in controversial Section 138 penal code case
The Lilongwe Senior Resident Magistrate Court has declined to stay proceedings in a case of where a 19-year-old boy is challenging the constitutionality of Section 138 of the Penal Code.
Senior Resident Magistrate Wanangwa Nyirenda on Tuesday, 20th May 2025, 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 has filed an application before the High Court 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.
His Worship Nyirenda stated that since the High Court has not yet granted the application, he would not grant the stay of the prosecution.
“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. If the High Court grants the application, the accused would be free to re-apply for a stay in this court,” said Nyirenda
He then set 27 June 2025 as the date to continue hearing the case.
In the case, 19 -year-old 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.
Commenting on the outcome of the stay of proceedings case, Nyale Institute Executive Director Dr 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 (e.g., 18 years old) and the other is a child (e.g., 17 years old).
“Clearly, 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.
Taulo is being represented by Ireen Mathanga, legal counsel with Nyale Institute.
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