The High Court in Mzuzu yesterday referred the case where three Mzuzu residents obtained an injunction against suspension of homosexuality laws in the country to the Chief Justice for certification as a constitutional matter.
In February this year, the three people—Reverend Patrick Banda who chairs the Young Pastors Coalition of Malawi, Pastor Tusalifye Mbeye and Christopher Kammasamba—sought leave for ex-partes on application for leave to move judicial review.
The three applicants also sought for an injunction which saw the suspension of the moratorium that government had issued which suspended homosexuality laws contrary to Section 153 of the Penal Code.
The applicants argued that only Parliament had the legal mandate to suspend or repeal laws in the country. The case was later joined by Centre for the Development of People (Cedep) and Centre for Human Rights and Rehabilitation(CHRR) as friends of court.
In his ruling, judge Dingiswayo Madise said a panel of not less than three judges will be able to adjudicate on all issues raised in the matter.
“It is my humble prayer that the certifying authority if he so pleases will consider empanelling five judges due to the seriousness and sensitivity of the matter, if he sees it fit that this is a proper case for certification,” reads the ruling dated May 11.
Madise, also sustained the injunction against suspension of the moratorium that government had issued that froze the operation of laws which criminalise homosexuality.
“I’m of the strong view that the interest of justice tilt towards sustaining the order of injuction until final determination of the matter or any other order of the court,” reads part of the ruling.
Meanwhile, the court has also ordered that two Mbeye have no sufficient interest in the case as the issue is legal and has nothing to do with morality or religion.applicants in the case, Banda and
According to Madise, the issue before the court is whether the Executive branch of government was within its legal mandate when it suspended gay laws. This means that only one applicant, Kammasamba, suspected to have obtained goods by false pretence, has sufficient interest in the case against Minister of Justice and Constitutional Afffairs, Director of Public Prosecution(DPP) and Malawi Police Service.
“The question is whether the first applicant has suffered discrimination for being arrested on a charge of obtaining goods by false pretence while people who violate gay laws are allowed to have unnatural sexual interaction without suffering arrest…
“I’m of considered view that these questions would better be answered at the conclusion of this trial,” it reads.
NATION The court has also allowed the two organisations joining the case as friends of court as the court will benefit from the two’s wealth of knowledge on issues of minority rights and their place in domestic and international space.
In an interview, lawyer of the three George Kadzipatike said his clients were pleased because the matter is going to be proceeded with against the Attorney General’s application of dismissing the matter prematurely.
“ We wanted it to be finally determined by the High Court,” said Kadzipatike.