Chief Justice Andrew Nyirenda has referred back to the High Court the discontinued Ken Msonda anti-gay case where he was requested to determine certification whether the matter should be handled as a constitutional case or not in pursuant to Section 9(2) and (3) of the Courts Act.
The referral came following an application for judicial review filed by two minority rights groups—Centre for the Development of People (Cedep) and Centre for Human Rights and Rehabilitation (CHRR)—against the Republic after the State withdrew the criminal proceedings.
Judiciary spokesperson Mlenga Mvula confirmed the development, saying the matter had been referred back to the High Court to address some procedures the court did not follow before referring the matter to Nyirenda for certification.
In January this year, the Blantyre Magistrate’s Court summoned Msonda, spokesperson of opposition People’s Party (PP), over his “kill homosexuals” remarks which he purportedly posted on his Facebook page.
The order followed an application filed by Gift Trapence and Timothy Mtambo, executive directors of Cedep and CHRR, respectively, arguing Msonda’s remarks incited others to contravene the law.
However, the State, through Director of Public Prosecutions (DPP) Mary Kachale, filed the discontinuance notice of the case in line with Section 77(1) of the Criminal Procedure and Evidence Code (CP&EC).
The two activists are praying for the court to review the State’s decision to discontinue the case in Criminal Case No. 16 of 2016 before the Senior Resident Magistrate’s Court in Blantyre.
Lawyer for the applicants, Mwiza Nkhata, yesterday said the Chief Justice thought since the matter commenced by way of judicial review, High Court presiding Judge Redson Kapindu should have determined whether to grant leave for judicial review or not because the referral was made before resolving the issue of granting leave.
“So, once that is done then the matter should go back to the Chief Justice for certification,” he said.
According to Nkhata, their view was that the Courts Act section, which Nyirenda relied on, speaks about any proceedings or business in the High Court and by filing application for judicial review there was no problem for Judge Kapindu to refer the matter to the Chief Justice.
In his ruling dated July 27 2016, the Chief Justice argued that as a rule, such matters originate with an application for leave to seek judicial review before which the application is commenced.
Reads part of the ruling: “It is also basic that it is leave that breathes life into the application. Strictly speaking, without leave it cannot be contended that there is a substantive action for judicial review.”
The Chief Justice further said instituting the substantive judicial review application entails several steps upon obtaining leave, all of which must be undertaken within 14 days from the date the leave is granted.
“Put simply, there is no substantive action before grant of leave and even thereafter before instituting the substantive action,” he said.