Malawi Human Rights Commission (MHRC) has come under fire from some civil society organisations for failing to advise Malawians through the High Court on the link between human rights and sexual orientation.
The concern was raised by Centre for Development of the People (Cedep), Centre for Human Rights and Rehabilitation (CHRR) and Manerela+, which are some of the organisations that responded to the request from the High Court for submissions to help it determine the constitutionality of section 153(a) of the Penal Code in line with section 20(1) of the Constitution of Malawi.
In the letter to the commission, which Weekend Nation has seen, the organisations are urging MHRC to act in accordance with its legal mandate and respect the High Court of Malawi as per the notice from the court.
However, the commission says the invitation by the High Court for interested persons or institutions to join the case was not mandatory and that by not joining, MHRC has not ignored its legal mandate.
The letter, which has been copied to the commission’s funders and partners among them UNDP Resident Representative, European Union Ambassador, Norwegian Ambassador, USA Ambassador, Germany Ambassador, Open Society Institute for Southern Africa (Osisa), UNAids Country Representative and the British High Commission, says: “On 13th September, 2013, the Registrar of High Court of Malawi issued a notice asking your office to join three cases where the court would like to determine the constitutionality of section 153(a) of the Penal Code in line with section 20(1) of the Constitution of Malawi.”.
It adds: “The court specifically asked the Malawi Human Rights Commission to join the case as Amicus Curiae and make submission to the court. To date the file shows that Malawi Human Rights Commission has not joined the case and will not be in a position to advise the court and the people of Malawi.”
However, the three organisations remind the commission that sections 129 and 130 of the Constitution gives powers to MHRC of investigation and recommendation as reasonable as necessary for promotion, protection and upholding of human rights.
“Section 12 of the Human Commission Rights Act says your office will promote and protect human rights in a broadest sense possible upon receiving request from persons, class of persons or body or on your own,” say the three organisations in the letter.
It adds that Section 13(a) of the Human Rights Commission Act says the commission will be source of human rights information for the government and the people of Malawi while Section 13(b) says MHRC will educate Malawians on issues of human rights.
Section 13(c) of the same Act says MHRC will make recommendations on any human rights issue where government has referred it to the commission while Section 13(f) says the commission has to perform any function asked by government in line with international human rights standards.
It is also an obligation of the commission, according to Section 14(a) of the Act, to respond and make recommendations or opinion where it has been asked on issues of human rights by any authority in Malawi.
“As Cedep, CHRR and Manarela+, we are worried on the silence of the Malawi Human Rights Commission when the High Court of Malawi asked the commission to fulfil its mandate and comply with the law. We are worried on the future of Malawi where Malawi Human Rights Commission can choose which rights and issues to address and help Malawians and which ones to ignore,” reads the letter.
It adds: “We urge the commission to act in accordance with its legal mandate…”
But MHRC chairperson Sophie Kalinde said the commission understands its mandate of promoting and protecting human rights of all people in Malawi without any distinction whatsoever.
Said Kalinde: “As a matter of fact, the commission has never and would never turn away an aggrieved person who would seek its assistance on a human rights issue on the basis of that person’s class, sex, political affiliation, social status, sexual orientation or any other status, as provided in the Section 20 of the Constitution.”
“The stand taken by MHRC not to join the sexual orientation issue cannot be said to mean that MHRC is not following the principle of “protecting all human rights without discrimination” because as pointed out, litigation is just one avenue of dealing with the issue and MHRC has dealt with and will continue to deal with this issue using the other mechanisms as provided in its enabling statute,” she said.
On allegations that the commission had declined to join the case to avoid being in conflict with the position taken by government not to repeal the sodomy laws, Kalinde said examples were there for Malawians to appreciate the independence of MHRC.
She cited the commission’s intervention on prisoner’s rights issues, the declaration of assets by the President and public officers, the cashgate issue, the Mponela Hospital bed transfer issue, the South Korea labour export programme and the maize distribution programme by President Joyce Banda as some of the examples in which MHRC has taken a neutral position.
“MHRC addresses is not and has never been guided by the question whether or not a particular intervention will be interpreted as being “against” or “for” government,” she said.
But one of the signatories to the letter, Cedep executive director and renown sexual minority rights advocate, Gift Trapence, said although the call from the High Court was not mandatory, the commission has a constitutional obligation to advise the court on such matters.
“The commissioners have failed the constitutional obligation of the commission and should resign. We copied [the letter] to interested parties in human rights issues to be aware how selective is our commission in dealing with human rights. Not joining [the case] is running away from the responsibility on which the body was constituted,” said Trapence.
In her reaction to resignation calls, Kalinde said there was need for the people making such proposals to read the relevant provisions in the Human Rights Commission Act and the Constitution.
“They may want to reconsider the said proposal for commissioners to step down, because of not joining one case, once they acquaint themselves with the relevant provisions in these laws,” she said.
The High Court this week started sitting in Blantyre to review convictions of three men—Amos Champyuni, Matthews Bello and Mussa Chiwisi—serving long prison terms for their involvement in homosexuality.
Gay activists want the court to declare the laws that criminalise homosexuality unconstitutional but government through the Attorney General, want the proceedings stopped.
However, the court on Monday threw out the State’s application to stop the proceedings and adjourned the matter to March 17 when all parties including MCP president Lazarus Chakwera’s son, Pastor Nick Chakwera, who is siding with government to oppose repealing of sodomy laws, are expected to make their submissions.
Friends of the court that responded to the call from the High Court for submissions include Malawi Law Society, Cedep, CHRR, Manerela+, the law faculty at Chancellor College and UNAids.