Malawi Law Society faults Kasambara on easing anti-gay laws

Malawi Law Society (MLS) has described as unconstitutional, illegal and an insult to Parliament, the government’s move to temporarily suspend criminalization of same-sex marriage.

The Law Society has argued that no minister even the Attorney General or Minister of Justice has the right or powers to suspend any law without going through Parliament or the courts.

MLS President John Mwankhwawa said: “The suspension amounts to insulting the powers of the legislature.”

He added: “It is not only unconstitutional and illegal but also an infringement of separation of powers between the executive and the legislature. This means any minister can wake up and start suspending any law.”

Makhwawa: Impunity

Mwankhwawa said if government felt that the laws are not appropriate then the option was either to take the matter to Parliament for repeal or challenge it through a constitutional court which could authorise the suspension after an application.

“They are just playing politics; this builds the culture of impunity,” Mwakhwawa, a renowned objective critic, said.

“ By issuing the moratorium the executive just want to please the donors but is abdicating its duties to enforce the laws which were put up through the legislature or to take the laws back to Parliament for repeal,” said Mwankhwawa.

The MLS President expressed concerns that similar acts of impunity by the executive have led to the suspension of Section 65, a piece of legislature that bars an MP from crossing the floor in Parliament.

Added Mwankhwawa: “Even the suspension of the death penalty is illegal. Government should brace up and do its duty. If the President would not sign a death warrant then take the death penalty to Parliament for repeal. All those Presidents who have not signed the death warrant have been acting illegally.”

Attorney General and Minister of Justice Ralph Kasambara has since denied having issued a statement that same-sex laws have been suspended although through an interview with one of Malawi’s leading daily paper but he could not dispute what he said during a public debate about a moratorium on the said laws.

During the public debate Kasambara defended government move saying it was meant to encourage free debate amongst Malawians. He said the suspension will stand until Parliament makes a decision.

“The idea is that if we continue arresting and prosecuting people based on the said laws and later such laws are found to be unconstitutional it would be an embarrassment to government. It is better to let one criminal get away with it rather than throw a lot of innocent people in jail,” he said.

Sections 153 and 156 of Penal Code criminalize same-sex sexual conduct between men and those convicted face up to 14 years imprisonment, with or without corporal punishment while Section 137A criminalizes “indecent practices between females,” with anyone found guilty liable to a prison term of five years.

Malawi has decisively used the said laws only in 2010 during the Tiwonge Chimbalanga and Steven Muonjeza saga after police arrested the two following their public engagement and the Blantyre Magistrate Court slapped them with a maximum sentence of 14 years.

The two were later pardoned by late President Bingu wa Mutharika following international condemnation.

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