Law Society faults Malawi Govt

The Malawi Law Society (MLS) has described as unconstitutional, illegal and an insult to Parliament government’s move to temporarily suspend criminalisation of same-sex marriage laws.

MLS argues no minister has the right to suspend any law unless the issue goes through Parliament.

Speaking in an interview on Tuesday in reaction to government’s last week moratorium on the same-sex laws, MLS president John-Gift Mwakhwawa said government should have followed appropriate channels, either through Parliament or the courts to issue such a suspension.

“That [suspension of the laws] amounts to insulting the powers of the Legislature. It is not only unconstitutional and illegal but also an infringement [of the principle] of separation of powers between the Executive and the Legislature. This means any minister can wake up and start suspending any law,” said Mwakhwawa.

‘Move to encourage free debate’

But Attorney General and Minister of Justice Ralph Kasambara, who announced the moratorium during a public debate in Lilongwe last week, defended government’s move at the time, saying it was meant to encourage free debate among Malawians. He said the suspension will stand until Parliament makes a decision.

“The idea is that if we continue arresting and prosecuting people based on the said laws and later such laws are found to be unconstitutional, it would be an embarrassment to government. It is better to let one criminal get away with it rather than throw a lot of innocent people in jail,” he said.

But Kasambara was not immediately available for reaction to the MLS position on Tuesday. He said he was in a meeting that was expected to last up to around 8pm.

Best options

Mwakhwawa said if government felt that the laws are not appropriate, the best option was to either take the matter to Parliament for repeal or challenge it through a constitutional court.

He said it is only when the constitutional challenge is in progress that government could ask the court to authorise the suspension.

Said the MLS chief: “They are just playing politics. This builds the culture of impunity. By issuing the moratorium, the Executive just wants to please donors, but is abdicating its duties to enforce the laws which were put up through the Legislature or to take the laws back to Parliament for repeal.”

Mwakhwawa expressed concern that similar acts of impunity by the Executive have led to the suspension of Section 65 of the Constitution, a law that bars MPs from crossing the floor in Parliament.

“Even the suspension of the death penalty is illegal. Government should brace up and do its duty. If the President would not sign a death warrant, then take the death penalty to Parliament for repeal. All those presidents who have not signed the death warrant have been acting illegally,” he said.

Meanwhile, Amnesty International (AI), a global human rights watchdog, has described the moratorium as a historic step forward in the fight against discrimination in Malawi.

“AI welcomes Minister Kasambara’s statement and hopes it serves as the first step towards ending discrimination and persecution based on real or perceived sexual orientation and gender identity in Malawi,” said Noel Kututwa, AI’s southern Africa director.