The High Court sitting in Zomba has dismissed an application by civil society organisations (CSOs) to review a decision by Director of Public Prosecutions (DPP) to discontinue politician Ken Msonda’s anti-gay case.
The case dates back to 2016 when the Blantyre Magistrate’s Court summoned Msonda, then publicity secretary of People’s Party (PP), over his Facebook post that allegedly said killing gay people was the best way to deal with them.
But in exercise of her powers under Section 99 (2) of the Constitution, DPP Mary Kachale discontinued the case, prompting the CSOs—Centre for the Development of People (Cedep) and Centre for Human Rights and Rehabilitation (CHRR)— to apply for a review on the case in January 2016.
But a panel of three judges sitting as a Constitutional Court last week determined that the manner in which the DPP exercised her powers was right as per the Constitution.
In an interview yesterday, Ministry of Justice and Constitutional Affairs spokesperson Pilirani Masanjala said the court noted that the Constitution provides a review mechanism by which the DPP has to give her reasons for exercising her powers under Section 99 (2) to the Legal Affairs Committee of Parliament.
He said the courts can only go for a judicial review in rare and extreme circumstances, but that the CSOs failed to show such rare or special circumstances, among others.
Said Masanjala: “The court, therefore, in interpreting the Constitution felt that the DPP did not exercise her powers wrongly but it was within the law.”
Reacting to the development yesterday, Cedep executive director Gift Trapence said they will soon consult their lawyers on the way forward.
He said: “We are going to engage with our lawyers and they will advise us on the next course of action.”
In his reaction, Msonda said he was happy that the court has thrown out the application by the CSOs.
He said: “I am happy and I am not surprised because I know that the country’s courts have so much respect for the Constitution. The case was just trying to be brought back on personal gains. But I am happy that that has been the outcome.”
Section 99 (2) of the Constitution empowers the DPP to institute and undertake criminal proceedings against any person before the court in respect of any offence alleged to have been committed by that person.
It also gives the DPP power to take over and continue any criminal proceedings instituted or undertaken by any other person or authority; and the power to discontinue at any stage before judgement is delivered on any criminal proceedings instituted or undertaken by himself or herself or any other person or authority.
Msonda’s summoning followed an application filed in January 2016 by Trapence and CHRR executive director Timothy Mtambo, who argued that Msonda’s remarks incited others to contravene the law.
However, during the same month, the State through Kachale as DPP filed for the case to be discontinued in line with the Criminal Procedure and Evidence Code.
Following the DPPs decision, Trapence and Mtambo filed an application for judicial review, asking the court to review the State’s decision to discontinue the case before the Senior Resident Magistrate’s Court in Blantyre.
In March 2017, Nyirenda certified that the case should be resolved by the constitutional panel of the High Court.
Malawi has, for years, resisted calls to repeal its anti-homosexuality laws. In 2009, two male adults—Tiwonge Chimbalanga and Steven Monjeza—were imprisoned for 14 years a public traditional engagement. They were released later.
Homosexuality is still not allowed but there is a moratorium by government on the issue. n