Republic vs Brian Taulo
Case Name: Republic v Brian Taulo
Court: Senior Resident Magistrate Court, Lilongwe
Facilitating Organization: Nyale Institute
Presiding Magistrate: His Worship Nyirenda (Magistrate Court)
Presiding Judge (Referral Application): To be assigned upon certification by the Chief Justice
Legal Representation:
- For the Accused: Nyale Institute (Counsel: Mrs. Ireen Mathanga)
- For the State: Office of the Director of Public Prosecutions (DPP)
Background:
This case involves the prosecution of an adolescent male who was in a consensual, non-exploitative relationship with his peer while both were under the age of 18. The relationship continued after the accused turned 18, resulting in criminal charges under Section 138 of the Penal Code (as amended in 2023), which criminalizes sexual intercourse with a child. The defence argues that prosecuting such a relationship violates constitutional rights to privacy, equality, and protection from discrimination, given the narrow age difference and consensual nature of the relationship.
Key Legal Issues:
- Whether criminalizing consensual sexual relationships between adolescents with a small age gap violates the rights to privacy and non-discrimination.
- Whether Section 138 of the Penal Code, as applied in this case, is constitutionally valid in light of the accused’s right to equal treatment before the law.
- Whether the matter meets the threshold for referral to the High Court as a constitutional issue under Section 9(2) of the Courts Act.
Status:
- Application for Stay: Filed by Nyale Institute before the Magistrate Court.
- Referral Petition: Filed in the High Court, seeking certification by the Chief Justice that the matter raises constitutional issues.
- Magistrate Court Ruling: Application declined. The court held a stay could only be considered after High Court certification of the constitutional referral.
Next Steps:
- Awaiting determination by the High Court on application for referral to Chief Justice for certification as a constitutional matter.
- If certified, the High Court will assume jurisdiction to address the constitutional issues raised.
