Court boosts Malawi gay rights case: Throws out AG’s objection

The High Court in Blantyre on Monday dismissed objections by the Attorney General (AG) stopping the court from proceeding with its intention to review constitutionality of the country’s ‘sodomy’ laws, which criminalise consensual sexual activity between individuals of the same sex.

The court exercising its jurisdiction under the Constitution, Courts Act and Criminal Procedure and Evidence Code, is reviewing conviction of Mussa Chiwisi, Mathew Bellow and Amon Champyuni based on constitutionality of Section 153(a) of the Penal Code vis-a-vis section 20(1) of the Constitution and the sentences imposed by the lower courts.

Gay activists want the court to declare the laws that criminalise homosexuality unconstitutional but government through AG wanted the proceedings stopped.

Nkhata (L) with fellow lawyers and activists at the court
Nkhata (L) with fellow lawyers and activists at the court

The court has been joined by several organizations as amici curias, and has since constituted a constitutional panel of seven judges to review the matter,  which represents a step forward for the rights of sexual minorities.

However, on Monday Attorney General’s legal team  led by Chief State Advocate Dr Zolomphi Nkowani submitted objections against the proceedings, arguing they were ‘irregularly commenced’ since it was not certified by the Chief Justice in line with the Courts Act.

Lawyer Tione Namanja, representing the AG, argued that: “The court’s failure to have the matter certified prior to empanelling seven judges to hear and dispose of this matter consists of an irregularity which can only be cured by referring the matter to the Chief Justice for certification.”

Namanja argued the matter, being constitutional, required certification from the Chief Justice.

“Wherefore, it is humbly before the Honourable Court for an order directing that these proceedings be referred to the Chief Justice for certification in line with Section 8 of the Courts (High Court) (Procedure on the Interpretation or Application of the Constitution) Rules, Section 9(2) and (3) of the Courts Act”.

But Justice Dustin Mwangulu challenged the objections, saying the certification was not mandatory.

Justice Mwangulu’s ruling means now the Constitutional Court comprised of seven judges will, on March 17, 2014, commence its review on the constitutionality of the country’s ‘sodomy’ laws and the convictions the lower courts made in 2011.

The court’s ruling is expected to be a catalyst for the appealing of infamous section 153(a) of the Penal-Code while being considered as positive step in ending discrimination against gay relationships.

The Malawi Law Society (MLS), a grouping of lawyers recognised by the law with mandate to represent and protect the interests of Malawians among other mandates, is in support of the gay activists..

The MLS argues as long as same-sex relationships are consensual and done in private, no one has business to get bothered, hence agreeing with the gay activists that the laws that criminalise homosexuality be declared unconstitutional.

“Our argument is that as long as same-sex relationships are consensual and done in private no one has business to get bothered,” law society spokeswoman Felicia Kilembe said.

Joining MLS as friends of court  in the case include the Centre for Development of People (Cedep), the Centre for Human Rights and Rehabilitation (CHRR), the Law Faculty at Chancellor College, Manet+ and UNAids, argued against the AG’s application through MLS lead lawyer Dr Chikosa Silungwe

Donors and the United Nation have been calling on Malawi to accept gays and repeal laws that criminalise same-sex relationships.

And debate on the matter has been gaining ground in the country with the latest being comments from High Court Judge in Zomba, Zione Ntaba, who has asked Malawians to open up the discussion on minority rights.

University of Malawi’s Chancellor CollegeDean of Law, Mwiza Nkhata,  one of the lawyers representing some friends of the court in the matter, also called for a rational discussion on minority rights based on the Constitution.

They made their remarks at Chancellor College in Zomba during the launch of a Centre for the Development of People (Cedep) funded minority rights advocacy moot competition for Chancellor College law students organised by the Paralegal Resource Centre (Parece).

In Malawi homosexuality became a contentious issue in 2009 when two men were arrested and charged with public indecency for getting married in a traditional ceremony.

They were later pardoned by the late President Bingu wa Mutharika after pressure from donors and the United Nations.

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