Mutharika wants gay rights protected, says Viola: Law experts question legality of moratorium

Malawi President Peter Mutharika wants Lesbian Gay Bisexual Transgender and Intersex (LGBTI) people to be protected against homophobia and that the decision on whether homosexuality be legalised or not should be decided by Malawians, State House has said.

Speaking on Capital Radio’s Daybreak Malawi program on Wednesday, Presidential Press Secretary Gerald Viola said President Mutharika “wants gay rights respected.”

Viola said LGBTI people have rights, though in minority and that the President wants “their rights should be protected.”

Mutharika government has put a temporary prohibition on anti-homosexual laws.

Viola said the President will let Malawians to decide about homosexuality, even if it means a referendum.

“It’s for Malawians themselves to decide what is right,” he said.

Meanwhile, law experts have faulted government on its decision to suspend anti-gay laws without parliament’s involvement is an insult to National Assembly and that only legislature can make such changes.

Chairperson of Parliamentary Committee on Legal Affairs, Peter Chakhwantha, and law commentator Justin Dzonzi have condemned the decision to temporarily suspend the criminalisation of same-sex marriage laws, saying the moratorium is “unconstitutional and illegal”.

Chakwantha said the DPP government is “so obsessed with arrogance when it comes to power” and has no respect for other two remaining arms of government – the legislature and judiciary.

He said the committee is disappointed with President Peter Mutharika, who has legal background, for his failure to guide the Executive on what the laws of the country say.

Dzonzi said government should have followed appropriate channels through parliament or the courts to issue such a suspension.

“Because Malawi is a constitutional set up, only Parliament has the power to make laws. In law language, we say only the one who can make a law can unmake it,” said Dzonzi.

Private practise lawyer John Gift Mwakhwawa added that the suspension “amounts to insulting the powers of the legislature. It is not only unconstitutional and illegal, but also an infringement of the principle of separation of powers between the executive and legislature. This means any minister can wake up and start suspending any law.”

Sections 153 and 156 of Malawi’s penal code criminalise same-sex sexual conduct between men and those convicted face up to 14 years imprisonment, with or without corporal punishment.

Section 137A of the code criminalises “indecent practices between females,” with anyone found guilty liable to a prison term of five years.

The apparent suspension of the laws had been welcomed by gay activists.