Chief Justice Andrew Nyirenda will this Thursday hear Ken Msonda’s anti-gay case to determine whether the matter should be handled as a constitutional case according to Section 9 (2) and (3) of the Courts Act.
This follows a ruling High Court judge Redson Kapindu made on September 26 2016 which granted two rights minority activists—Centre for the Development of People (Cedep) executive director Gift Trapence and Centre for Human Rights and Rehabilitation (CHRR) executive director Timothy Mtambo—leave to apply for judicial review on the matter and also referred the case to the Chief Justice.
Judiciary spokesperson Mlenga Mvula could not be reached on his mobile phone yesterday when The Nation sought his comment on the development, but a notice of hearing dated January 6 2017 reads: “Take notice that the honourable Chief Justice will on the 19th day of January 2017 at 8.30 o’clock in the fore noon sit in Blantyre to hear the matter herein.”
Lawyer for the applicants Mwiza Nkhata yesterday confirmed that the hearing by the Chief Justice will certify whether it is a constitutional matter which must be resolved by a panel of not less than three High Court judges.
He said when Nyirenda referred the matter back to High Court judge Kapindu in Zomba where the matter was initially filed, the judge referred it to come before the Chief Justice for certification as all procedures were followed were followed.
“I think judge Kapindu and the Chief Justice had different views on the procedures that had to be followed so when the matter was sent to the Chief Justice the first time, the matter was not granted leave for judicial review when the matter itself had commenced by way of judicial review. So, what the Chief Justice was saying was that the trial judge must make a determination on whether leave for judicial review will be granted or not.
“As such, the matter went back to Zomba [and] the judge has granted leave for judicial review. The substantive application for judicial review will not proceed until the Chief Justice can certify that it is constitutional or not. Once the Chief Justice does that, it will be sent to a panel of at least three High Court judges and a date will be set for hearing,” Nkhata said in a telephone interview.
In January 2016, the Blantyre Magistrate’s Court summoned Msonda, then publicity secretary of former governing People’s Party (PP), over his “kill homosexuals” remarks which he purportedly posted on his Facebook page.
The order followed an application filed by Trapence and Mtambo, respectively, who argued that Msonda’s remarks incited others to contravene the law.
However, during the same month the State, through Director of Public Prosecutions (DPP) Mary Kachale, filed for the case to be discontinued in line with Section 77 (1) of the Criminal Procedure and Evidence Code (CP&EC).
Following the DPP’s decision, Trapence and Mtambo filed an application for judicial review, praying for the court to review the State’s decision to discontinue the case before the Senior Resident Magistrate’s Court in Blantyre.
However, the Chief Justice, in July 2016, referred the case back to the High Court, arguing that the High Court needed to address some procedures it did not follow before referring the matter to him for certification.
In his ruling, dated July 27 2016, the Chief Justice argued that as a rule, such matters originate with an application for leave to seek judicial review.
Kapindu, in his ruling, made on September 26 2016, said arguments by Mtambo and Trapence were open to judicial review.
He also granted the two activists leave to apply for judicial review and referred the matter to the Chief Justice for certification of the matter as a constitutional cause. n