High Court Judge Dingiswayo Madise will this Wednesday determine whether to allow a case started by two pastors and a suspect, questioning government’s decision to stop arrests and prosecution of homosexuals.
This is a case in which the two pastors—Patrick Banda and Tusalifye Mbeye— and suspect Christopher Kammasamba find it illegal and unconstitional for Malawi Police Service (MPS), Minister of Justice and Constitutional Affairs Samuel Tembenu and Director of Public Prosecutions (DPP) to stop enforcing homosexuality laws or any part of the Penal Code without the consent of Parliament.
However, Attorney General Kalekeni Kaphale, in his submission which The Nation has seen, wants the court to throw out the application for judicial review on grounds that the petitioners have no “sufficient interest” having suffered no direct “loss, injury or harm” due to non-enforcement of the laws under scrutiny.
But the applicants’ lawyer, George Jivason Kadzipatike, seems determined to quash the moratorium Tembenu proclaimed in December when the criminal justice system let two suspected gays free amid pressure from donors and human rights activists, especially the US and Germany as well as Amnesty International.
Kadzipatike’s clients want an end to the indefinite suspension of Section 153 of the Penal Code.
He is also petitioning hard for the judge to discard practice lawyer Khumbo Bonzoe Soko on behalf of Centre for the Development of People (Cedep) and Centre for Human Rights and Rehabilitation (CHRR) to join the State agencies as friends of the court. an application filed by private
The matter puts into question the Executive power to amend, repeal or suspend parts of the Constitution and any other laws of the land without the authority of the lawmakers.
The pastors accuse government of abdicating its duty to enforce the laws and the minister of “usurping Parliament’s powers” and “installing himself as an unelected lawmaker” when he declared the questioned moratorium.
Tusalifye finds the deactivation of the law breaches his right to non-discrimination and equality before the law since only gays and lesbians have been “unconstitutionally favoured and authorised by the Executive, to offend valid provisions of the Penal Code”. n