Court dismisses case on women’s rights

The Constitutional Court in Blantyre has dismissed an application filed by Southern Africa Litigation Centre and Canadian HIV/Aids Network which raised a number of demands regarding the rights of women.

The applicants sought a declaration to the effect that Section 17 of the Married Women Property Act, 1882 is inconsistent with the rights of equality and women’s property rights as enshrined in Sections 20(1), 24(1 (b)(i), and 28 of the Constitution of Malawi.

Alternative to the making of this declaration, the applicants stated that the statute which contains this provision should be read in the light of constitutional provisions that safeguard women’s property rights.

But the Attorney General (AG) Anthony Kamanga, through lawyers from his chamber, objected to the application, arguing that the applicants’ interest in the matter was hypothetical, moot, or academic, and that it sought the advisory opinion of the court, than a judicial determination from it on an issue that is truly in dispute.

Prominent lawyer Ralph Kasambara also joined the case as a friend of court to oppose the application by the applicants.

Lawyers that represented the AG were Thabo Chakaka Nyirenda, Steven Kayuni, Thabo Nyirenda, and Joseph Chiume. Dismissing the application last week Friday, three judges Anaclet Chipeta, John Katsala and John Chirwa said it was clear that in the absence of the applicants having suffered a violation of rights and in the absence of a woman who has suffered this type of disadvantage being in the driving seat of the intended public interest litigation, such interest as the applicants had claimed it had for commencing the matter was all distant and remote.

Chipeta, reading the ruling on behalf of his colleagues, said: “Suing on the basis that the Trust Deed’s objectives coincide with women’s rights in the Republican Constitution, and on the basis that women (not mentioned and not involved in the case) have been complaining to the Trust, and on the basis that the Trust’s research has led to the conclusion that there is a problem, is not sufficient interest in the manner the existing authorities construe that expression under Section 15(2) of the Constitution.

“…In the circumstances, we have no option but to dismiss the applicant’s originating motion herein, which we now do with costs.”

The applicants wanted Declaratory Orders in terms of Sections 13, 20(2) and 24(1 (2) of the Constitution of Malawi, which guarantees all person equal and effective protection against discrimination on grounds of race, colour, sex, property among other status.

They also wanted adoption and implementation of legislation aimed at promoting gender equality for women and men, and in particular, policies that address social issues such as domestic violence, security of the person, lack of maternity benefits, economic exploitation, and rights to property.

They also wanted the passing of legislation that addresses inequalities in society and prohibiting discriminatory practices and elimination of laws that discriminate against women on basis of gender or marital status, particularly those that deprive women of their property rights.

The applicants, represented by lawyer Samuel Tembenu, argued that the failure by government to pass such legislation, since the adoption of the Republican Constitution in 1994, has resulted in inequalities and discrimination being perpetrated against women.

According to the ruling, Kasambara asked for the indulgence of the court to allow him to present his application orally.

He founded his said application on the qualifications he holds in Human Rights Law, his research and his publications in the area, and on the fact that he is a husband and a parent, who thus would be liable to be affected by the outcome of the decision in this matter.

Kasambara, the ruling stated, made it clear that his aim was to oppose the application that had been made by the applicants.