Malawi judge Mwaungulu faults shelving of anti-gay laws

Malawi High Court Judge Dunstain Mwaungulu, who is also an authoritative commentator on topical issues on various internet discussion forum, has spoken against the move taken by the government to suspend anti-homosexuality laws.

Under the country’s penal code, men can be sentenced for up to 14 years and women to five years for homosexuality.

But Justice Minister and Attorney General Ralph Kasambara told a recent radio debate that the laws will not be “enforced until the time that parliament makes a decision” on whether to reapl them or not.

Mwaungulu, in his post on Nyasanet and Facebook, said the move to suspend the laws  “is an affront to constitutional law theory.”

Mwaungulu : Only parliament can suspend laws

He posted: “Unless the Penal Code provides for the Minister or the President to suspend laws, the Attorney General and the President cannot suspend the operation of laws.”

The judge, who was writing in his personal capacity, argues that if the attorney general is seen to do this in this particular case, “the society has no guarantee that the public defender may suspend other laws at the whims of his finger.”

Added Justice Mwaungulu: “That is dangerous. Only Parliament can suspend the operation of laws!”

He is accusing the President and the Attorney General of wasting everybody’s time.

“This matter need not go to Parliament. Our parliament will be using political arguments to a fairness question”.

He also says the matter must go to the constitutional court through a criminal prosecution, which the Attorney General has “by his action stopped!”

Mwaungulu has highlighted several arguments to this regard:

  •  I think arrest someone, get him to court and let the constitutionality of the law be examined without any debate. It is unnecessary to start debating on a minority issue
  • the matter must go to the constitutional court through a relator, our Attorney General is a relator, he can challenge a law, like this that puts a sector of a community under jeopardy.
  •  The matter must go to the constitutional court through a referral by the President to the constitutional court
  •  A citizen just taking an action and say that a right may be violated by the legislation.

Mwaungulu pointed out that the government’s “action or decision” to suspend the law instead of having its determines by the courts “is potentially reviwable by the courts.”

Abolish sodomy law

Mwaungulu, known for his high profile case determinations, is on record arguing that Malawi should also consider abolishing sodomy law.

“The sodomy law is not a gay law. It is a criminal law and common law crime based on that sodomy, annal sex, is an unnatural offence like bestiality. All of us would be very reprehensible when a man has sex with a cow! But sodomy, unfortunately is possible even if you are not gay,” he argues.

“Unfortunately, sodomy, and we Judges take judicial notice occurs very frequently as normal sexual behaviour among the married, prisoners etc., who may be heterosexual. It is more incident among gays where it is their way of sexual expression.

“From a theological perspective, the church regards homosexuality as sin much like adultery, but the church does not support criminalization. More when the matter is open to public debate when the law is repealed.”

Malawi made world headlines in 2010 when two gay men were arrested for getting married. Steven Monjeza, 26, and Tiwonge Chimbalanga, 20, were arrested and locked up for five months during their trial and after their conviction, unti the then president Bingu wa Mutharika pardoned them on May 29 amid international outrage and protests

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