Malawi Government wants the Chief Justice to certify a case in which three men were slapped with long prison terms by a magistrate’s court for their involvement in homosexuality.
The Attorney General (AG) wants a ruling of the Blantyre-based High Court judge Dunstain Mwaungulu, which said the Chief Justice certification was not mandatory, reversed before the High Court reviews the case involving the three men.
Mwaungulu made the ruling after the AG made an objection to the review of the case’s proceedings.
Mwaungulu, after he dismissed the AG’s application, went ahead and set a date in March for a seven-member-judge panel to start hearing the matter that touches on constitutionality.
But unsatisfied with the judge’s ruling, the AG went to the Supreme Court to challenge his decision.
The AG wants an order from the Supreme Court that the matter be certified by the Chief Justice prior to proceeding as a constitutional matter.
In the grounds of appeal filed, the AG argues that the judge erred in law and fact in holding that certification by the Chief Justice is not mandatory under Section 9 (2) and Section 9 (3) of the Courts (High Court) (Procedure on interpretation or application of the Constitution) Rules.
“The learned judge erred in law by misdirecting himself in law by holding that certification by the Chief Justice is not mandatory as that position only obtains under S.3 (3) (b) of the Supreme Court of Appeal Act, Cap.3:01 of the laws of Malawi and not otherwise,” reads the appeal.
The AG further argues that the judge erred in holding that Confirmation Cases Numbers 22, 411 and 662 as was before him expressly or substantively related or concerned the interpretation or application of the Constitution without conclusive proof of the Chief Justice under Section 9 (3).
The applicants serving the long prison terms ranging from 10 to 14 years and convicted in 2011 are Mussa Chiwisi, Mathew Bellow and Amon Champyuni.
Friends of the court that joined the matter include the Malawi Law Society (MRA), Chancellor College’s Faculty of Law, UNAids, Centre for Development of the People (Cedep), Centre for Human Rights and Rehabilitation (CHRR), and some individuals.