Malawi court rejects moratorium on gays: Police can arrest homosexuals 

The High Court in Mzuzu has ordered the Malawi Police Service, the Director of Public Prosecutions to continue arresting and prosecuting  gays and lesbians who commit homosexual offences in Malawi.

Judge Dingiswayo Madise: Rejects morotorium on gays

Judge Dingiswayo Madise: Rejects morotorium on gays

The prosecutions will continue pending a judicial review of the decisions, conduct and abdication of legal and constitutional duty by the Minister of Justice and Constitutional Affairs, the Director of Public Prosecutions and the Malawi Police Service.

A Judicial review is a type of court proceeding in which a Judge reviews the lawfulness of a decision or action made by a public body. In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.

Judge Dingiswayo Madise made the order in Mzuzu on Monday warning any person who disobeyed the order shall be guilty of contempt of court and may be imprisoned, fined or may have their assets seized.

Madise also quashed the decision by the overzealous Malawi Police Service to set at liberty and drop any homosexual charges against Curthbert Kulemera and Kelvin Gonani, suspects of homosexual offence or offence of having carnal knowledge against the order of nature under section 153 of the Penal Code as illegal and unconstitutional.

The order follows an ex-parte application by Christopher Kammasamba, Reverend Patrick Banda and Pastor Tusalifye Mbeye and filed by Mzuzu based Lawyer George Kadzipatike of Jivason and Company.

The trio wanted the Court to declare as illegal and unconstitutional the decision by Minister of Justice and Constitutional affairs re-affirming government’s commitment to observing a moratorium on consensual homosexual offences or offences relating to having carnal knowledge against the order of nature.

They also wanted a declaration that the stoppage by the Executive branch of government to enforce the provisions of section 153 of the Penal Code by not arresting and prosecuting people suspected of having committed carnal knowledge against the order of nature, is selective and discriminatory against the Applicants.

“A declaration that the Director of Public Prosecutions (DPP) has no authority to suspend the operation of any law or to stop subjecting to the due process of the law all persons in the country who are suspected of having committed homosexual offences or offences of having carnal knowledge against the order of nature, under section 153 of the Penal Code,” reads part of the application.

The judge  also ordered the applicants file an interpartes summons for continuation of the interlocutory/injunctory reliefs within 7 days and that hearing of the said interpartes summons must be held within 14 days.

In 2012, then-President Joyce Banda called on the parliament to repeal the existing sodomy law, under which same-sex relations are punishable by up to 14 years in prison. Following some resistance to the call for repeal, President Banda issued a moratorium on the enforcement of the sodomy law.

The debate just recently became public again when Kulemera and  Gonani were arrested for their alleged sexual encounter. Both men were released, and after public criticism, the government of Malawi announced that it would no longer enforce the sodomy law.

Justice Minister Samuel Tembenu issued a statement reaffirming the moratorium.

According to lawyer for the pastors, George Kadzipatike, the injunction dated February 9 2016 granted by Judge Madise means everyone who were arrested on homosexuality charges and freed while moratorium was in force will have a case to answer.

The ministers, Director of Public Prosecutions and the police are the respondents in the case number 17 of 2016.

Meanwhile, Reverend Patrick Banda of Young Pastors Coalition of Malawi said President Peter Mutharika to make his position clear on the gay issue.

Press Secretary Gerald Viola said that President Mutharika plans to let Malawians decide on LGBT issues, even if that means putting it to a popular vote via a referendum. He has agreed to support the people, regardless of their decision.

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46 thoughts on “Malawi court rejects moratorium on gays: Police can arrest homosexuals ”

  1. Aunt Tiwo should come back home and face the music

  2. Prof. Joseph Berry Q.C. says:

    Is gay marriage an issue of debate in Malawi and Africa? The answer is NOOO. Advocates for gay marriages, you risking lives of the mislead Africans practising what a normal person is doing. For the one saying religion is a human construct, research shows that homosexual is not natural but a construct. There is no consensus among scholars to whether homosexual is intrinsic. Therefore, it will be wrong to criticize religious persons’ for the stand. Prove rationally that homosexuality is universal with evidence without basing on human right. Human Rights are not absolute and intrinsic. They are human constructs.

  3. Wakukaya says:

    I dont know why human beings are talking about Gays yet God gave us authority over eache and evry creature including dogs and pigs. Yet I have never heard of Dogs and Pigs being Gay or Lesbian. Now I wonder, thats why pigs and dogs are better that Gays and Lesbians. Thats why Auncle BOB of Mashonaland and Ndebele land supports the idear that even Devil is not a Gay or a Lesbian.kkkkk

  4. Wakukaya says:

    Thiis stupid behaviour is being propagated by Trapence and Mtambo of ChRR. These are the two morons who have been sent by the WEST through financing this medeocrity to destroy this country. I pray that the faith of TRAPEncE and Mtambo will not fail

  5. Dizamo says:

    Those NGOS who feed on gays promotion should leave Malawi and stay in the West and do the promotion there. Are rights only for gays? We have people failing to go to school because they do not have fees, why do these NGOS promote such issues rather than issues which will not add anything to our development? Gays have nothing to offer us except shame to our families. Something that is shameful is not supposed to be tolerated. Why do these NGOS not support Chamba smoking? Can they tell us what makes people to smoke chamba? Is it what they call orientation? If somebody sleeps with his mother will you Gay promoter call it orientation though they have agreed? If somebody sleeps with his kid though they have agreed will you call it orientation? Please find other means of earning money rather than gays promotion. Its a shame even to your village to hear that your work is to promote men marrying other men or women marrying women. Are you not surprised that it was only made legal in USA last year? For how many years has the USA been in a democracy?

  6. dadawakuboma says:

    Malawi should not be in isolation but go by the rest of the world if she wants to develop. Govt (police, courts, etc) should not be busy with controlling people’s choice of who they want to love. It is love. If govt wants to be busy with pursuing irrelevant issues, it should begin to arrest the catholic clergy who do not marry when the Bible commands people to marry and multiply and fill the world. You see, religion is abstract, fake and nebulous and if you blindly follow it you’ll never develop. Malawi should immediately abolish sodomy laws. It is not against nature if people become homosexuals – it is natural. Check what other animal species do, e.g. chicken, dogs, cattle, rabbits, hippos, etc. A battle against nature will never be won; it will just waste your time – you can insist if you want but it will be in vain. Let’s forget about this law and start developing MW.

  7. Tim says:

    This Judge is known by most to be EVIL and corrupt!.. In the Northern region people would prefer fight and kill each other before going to his Court.
    This Judge obstructs justice…

  8. Myles says:

    Mwana Wa Malawi
    No respect will ever be given for any constitution that values the evil stupidity of religion more than the basic civil rights of its own people.
    Homosexuality is found in every species of animal on the planet.What could be more normal or natural?
    Religion is a scam,based on lies and greed.What could be more abnormal and unnatural?
    Since religion is artificial, i.e. not real;people can and do change their gods and their religions at the drop of a hat.To use something as stupid and foolish to try to control who people love is sick and immoral.

  9. Daniel says:

    The judge wants the rule of law upheld, which means as part of a government committing genocide the judge should be punished accordingly. The judge cannot have it both ways.

  10. koma says:

    Mr Madise imirani U Pulezident. i will vote for you keept it up! Bravoooooo! Bravooooooooo!

  11. yemweuja says:

    I am not foshibubu@. . . but I see that email address on my computer. Nyasa Times is not correcting this problem.

  12. yemweuja says:

    Mr Madise congatulations! may the angels who are commanded by God to guide should continue to do so . Uuuuuuh! God answers may our almighty God bless you all dys of your life. Ambuye pititilizani kutimenyera nkhondo popeza woyipayo nayenso akuphika zake but with you God ali chabe shame on you devil!. our plezident plz say something to confort malawians who are howling for this homosexual. Bravoooooooooooooo! Bravooooooooooooooooooo! Madiseeeeeeeeeeeeeeeeeeeeeeeeeee!.

  13. Jelbin mk says:

    It is obvious that the illegalization of same sex marriages or intimacy will not stop people from committing it as is the case with all crimes which are punishable according to a each case particularity come theft,murder, abortion etc. Legalising one of same sex consensual is as bad as legalising murder because the same construction that says do not kill it also says do not commit gaysm. I also want to point out that in the world there are three well known constitutions alined with three popular religions namely Christianic, Islamic and Jewish constitution whatever is prohibited in the Bible is also prohibited within the Democratic or Christian dominated nation so goes with islamic and Jewish qualan (forgive my spelling) and Torah respectively. Now if we are changing our constitutions into unrecognisable shape then we are lost into submission as Christians unlike Moslems who stand by their principles alined with their religion not being oushed by the alluminate who do control and influence their agendas through governments around the world. I would appreciate to see Europeans realise that we are capable of making our own decisions and laws that can stand better with our backgrounds and cultures. The west fear culture most than anything else n African is rich in that which is very hard to break in hence different ways of seducing us into believing that European life is better than African life style which is not true. We need people like Thabo mbeki and Mugabe in order for us to feel the importance of being Africans, i do agree with mugabe that white people are not supper human beings. God should help us amen

  14. Kithazi says:

    The executive does not make law on its own, let there be a deliberation of the so called law regarding soddomy so that our position as a nation is made clear. We don’t need selective laws and justice to propel our nation forward.

    Justice Madise is only being fair by clarifying what our law says. Repelling laws of a nation is not done by Bankimoon nor executive alone.

    Blavo Judiciary

  15. Billwadi says:

    Gays hurt no one but why do they want to hold the soceity to support their act which according to our laws – the laws we borrowed from the same pro-gay westerners; is an act agaisnt the order of nuture? Public opinion of Malawian soceity is not pro-gay

    Why are we busy with these gay issues when we have a clear case of capital punishment whose law we can repeal under the sanctity of humanity? All the presidents Malawi has had since dawn of democracy have refused to sign death penalties coz they believe life is prescious and as human beings they have no right to decide who lives or dies. There has been no public outcry on the presidents’ not signing death penalties; thats a law we can repeal as opposed to these homosexual laws.

  16. Mwana Wa Malawi says:

    Yes they have to respect our culture and constitution

  17. sita says:

    Malawians always unable to move forward is homo sexuality the only sin. pastors shud start xoncentrate on their churches and those who believe in their beliefs. not every Malawian believes in god
    .

  18. okonda malawi says:

    kumeneko nde kuyankhula otherwise tidzitibula tokha akapezeka

  19. Tatopa Naye Uyu says:

    Acting President Madise

  20. Tengupenya says:

    The moratorium was nonsense. The government should do the right thing, which is to use due process to change the law if they think that society has shifted its stance on the criminalization of sex between same sex individuals. Another route is for the affected citizens to have the law declared unconstitutional or invalid.

  21. Pinyox says:

    Agalu amenewa aka pixel a tiziwakong’ontha basi.Ngati akufuna avaye Ku USA konko

  22. Malawian says:

    As God fearers,this is wise.Keep it up high court.

  23. malawiboy says:

    There is a saying , “One step forward, and two steps back”.
    Unfortunately, Malawi seems incapable of even one step forward.
    Until Malawi realises what is really important, it will remain mired in the past, hobbled by superstitions, ignorance, and irrational fears.
    Wake up people, gays don’t hurt anybody.
    Crooked politicians do, bad laws do, money grabbing prophets do.
    Another dark day starts in Malawi.

  24. The Analyst says:

    O…………………………………………………………………………………………………………………………………………………………………………………………………………O
    I have seen and met strange people, but APM is one of a kind . . .

    You see, when APM was being inaugrated as president, he vowed to uphold the constitution, yet he didn’t know what he was talking about. Sad!
    In short, the law professor that APM is, is no better than any ordinary man and woman commonly seen moving around town carrying huge amounts and volumes of documents calling themselves lawyers or masquarading as such.

    Let it be put on record and straight to APM that he may be the president, but no one is above or below the law. It shall therefore do him more good to live more of the president he is (hence uphold the constitution) and more also of the professor he is yet to prove to us (hence behave professiorial), than less of both.

    It is an open secret that many legal and non-legal experts know that APM and his misadvisor Tembenu erred in their conduct hence misled themselves into believing they have the power to just wake up in their pijamas and boxers and abrogate the country’s laws hence promote lawlessness and jungle-justice; yet the legal experts lacked the courage to speak it out? It’s a pity to have such people with all courage of a kitchen mouse, as legal experts.

    Bravo to Madise, there is honour in living one’s concience than just one’s duty.
    O……………………………………………………………………………………………………………………………………………………………………………………………………………O

  25. Milward Malidadi says:

    Very interesting development!!! A brave judgement by Justice Madise that would shake poor Malawi to its core. This will sends shivers to the corridors of power as they try to balance international conventions with the national laws. These are moments when one wishes they were never involved in national politics. You cannot fault Justice Madise but surely his judgement lacks wisdom. It has shown how youthful he is as a Judge. Operating on black or white basis _ no other colors.
    By the way, what was the relevance of the Pastor’s quiz wanting to know the position of the HE on this issue? The issue here is about what the law says and not what others are saying be they learned or not.
    Malawi has just gone into yet another turbulent avenue. Poor Malawi, Poverty is indeed a crime!!

  26. Harry says:

    Daniel come to judgment.

  27. JCK says:

    Glory to God!

  28. mphwache wa bingu says:

    The government also takes court orders which make sense. Unfortunately this doesn’t make any sense so won’t be considered and the commander in chief already ordered the police not to arrest any gays or lesbians and thats till stands whethert he judiciary wants it or not.

  29. muonosile says:

    Madise, the true son of Malawi. GOD bless you.

  30. Ruben Kacheche says:

    Watibulidwa dzulo uja akatengedwe basi. I normally differ with Madisi but here wakhwana. ..We need to hold umunthu. Democracy means the rule of majority not minority so guys have to go by majority. If USA wants to give them asylum let them take them after serving sentence. What USA is doing to interfere with our laws. Why can’t they discipline Tram kaya Trum who is busy castigating Africa. Viva Malawi. Poor but sovereign state. Na apa Malawi ma flames we are united

  31. John Black says:

    Who in Malawi has the authority to decide on which cases have priority in prosecution, considering the long backlog of cases, and the limited capacity of judicial system and police? This can only be the executive branch of government.

  32. Good news. If govt challenges this then it is pro-gay

  33. Parallel Market says:

    This is a new day for Malawi. Bravo Malawi!! Bravo Africa!! Bravo High Court!!! Bravo Madise!!!!!
    May the Almighty GOD give Madise long life and grant him more wisdom. Trapence, Mtambo, Billy Mayaya take your gays to hell!!!

  34. sniper says:

    Thumbs up Justice Madise..U rock

  35. Pochi says:

    Bravo Madise. Amangidwe basi

  36. Tomtom says:

    Waitha Madise. Congratulations

  37. mystery says:

    Madise at its best!!!!!!!!!!!! osasekerera zopusazo………

  38. Benson says:

    Thats the kind of judges we need not politically motivated and able to give right judgement at right time.

  39. Mapwevupwevu says:

    Mmene Ralph Kasambara walowa ku ndendemu Dingiswayo wayamba kuchita zakupsya!

    Congratulations and keep it up!

  40. George Chinagwa says:

    Good News. Long Live Malawian culture. Malawi our country, african culture our pride

  41. opportunist says:

    That’s the Judges we need in this country

  42. happy man says:

    for the first time let me comment, bravo madise ..God bless u..

  43. Maliseni says:

    Glory to God !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! Malawi still have God fearing Judges.

  44. Zishan Q'ubaz says:

    Yes, I agree with the Judge’s determination in it’s totality. The moratorium on the law represented a huge breach on the oath of office undertaken by our leaders. Let the constitution reign, let justice flow like water in shire river!

  45. CHIPI CHANGU says:

    If there is a judge who delivers judgement every week, it is Madise. Be it politcal or otherwise. I wished the judges in BT, who are many, would each deliver at least on judgement per week. Malawi would be different. I have a judgement awaiting for six months for what was a simple commercial transaction. KOMA MA JUDGE KUMWA MOWA AND WOMANISING.

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