Attorney General Kalekeni Kaphale has appealed against High Court Judge Dingiswayo Madise’s High Court ruling backing calls for judicial review of the suspension of anti-homosexuality laws by Minister of Justice and Constitutional Affairs Samuel Tembenu.
According to court papers filed in Mzuzu last Wednesday, Kaphale wants the Supreme Court to rule that Madise erred in determining that concerned citizens—who want government agencies to keep arresting, prosecuting and jailing homosexuals—have sufficient grounds to challenge the moratorium Tembenu reaffirmed in January.
The three—Reverends Patrick Banda and Tusalifye Mbeye as well as Christopher Mbeye, who is on trial for obtaining goods by false pretence—find it illegal and unconstitutional for the minister to stop enforcement of the laws of the country without Parliament’s approval.
Two weeks ago, the judge ruled that they raise “serious triable issue”.
The verdict in Mzuzu might have effectively overruled Kaphale’s standpoint that the trio did not have sufficient grounds having suffered no direct loss, harm and injury due to non-enforcement of Section 153 of the Penal Code which prohibits homosexuality.
However, the government’s principal legal adviser is back in court having been dissatisfied with this part of the May 11 ruling, which referred the legality of the moratorium for judicial review.
In his appeal, Kaphale argues: “The learned judge erred in not considering jurisprudence from the Malawi Supreme Court of Appeal on the subject and applying it in the facts before him to determine whether the respondents have sufficient interest to commence judicial review proceedings on the case.”
He alludes to a 2004 case between Civil Liberties Committee (Cilic) and the Minister of Justice in which the Supreme Court upheld that for an applicant for judicial review to show that he has sufficient interest in the matter, he or she must show it is his or her rights that have been violated as a basic for taking action.
The three told the High Court, through private practice lawyer George Kadzipatike, that the moratorium injures their right to equality before the law by making them second-class citizens not at par with gays and lesbians.
They also found the order from the Executive arm of government a glaring violation of the cornerstones of the Constitution which provides for equality and separation of powers.
Kammasamba terms it discriminatory to continue answering charges under the same Penal Code whose Section 153 has been suspended by the minister, whom they accuse of installing himself as an unelected lawmaker.
In an interview, Kadzipatike said Madise applied the law properly on the issue of sufficient interest.
“Any person whose legal or constitutional right has been violated has sufficient interest in that matter. Kammasamba will go all the way to seek protection from the courts against glaring violations of his right,” said Kadzipatike.
Besides, Kaphale wants Centre for Development of People (Cedep) to join in as friends of the court when a panel of three judges preside over the judicial review proceedings. n