Neither the judge nor the criminal be

No human being is born without faults. Therefore, it must be a commonly understood truth that we are all culpable in one way or another. As Giraldus Gambrensis writes: “He is esteemed the best whose errors are the least, let the wise man consider everything human as connected with himself.” Hence the maxim: “To err is human; to forgive, divine.”

If this is true, why then do we punish people who break the law?

One obvious reason is that to be human is not to error. In other words, humanness is no moral or policy mandate to sin or commit a crime. A sin is any thought or action that is forbidden by God while a crime is defined as a breach of a rule or law for which a punishment may be prescribed by a governing authority. Most of all, not all sins are crimes and not crimes are sins. For example, although coveting is listed as a sin in the Ten Commandments (Exodus 20:17), there is virtually no penal code that identifies it as an offence under any jurisdiction of a State that exists on earth.

The apparent reason for this is that it would be impossible to prove to a judge that a person is coveting. Implied therein is the very fact that that the law of criminal evidence itself limits judicial powers to punishing only a few sins that really disrupt the functioning of society. Therefore, crimes are a minor subset of all sins.

Who then has the power to put sanctions to sins so that they become crimes? Is it appropriate for the believer to impose his belief in principles of morality on the non-believer through State laws? Is preaching or prayers of deliverance not enough?

In responding to these questions, the believer appeals to what is fundamental in Biblical Christian ethics—the character of God: “So, God created mankind in his own image,” (Genesis 1:27) and the subsequent duty imposed on the believer to mirror that image through godliness. It is, therefore, commonly held that an absolute moral order subsists outside of, and yet somehow is inscribed into, our very being. Suffice to state that a majority of Malawians are religious people, hence subscribe to the above position.

Conversely, secular humanists would refer to rational or naturalistic philosophy as the foundation of a moral or ethical society. Secular humanists, who are a minority in Malawi, deny the proposition that God exists and proceed to argue that humans are perfectible, evolving animals. But then again, should we allow secular humanism to determine the scope of our laws?

Questions presented above are far from being new and yet appear under new circumstances in our context. This implies the need to treat these questions in fundamentally different manner. Answers to the questions raised, will be particularly instructive in to resolve the dilemma of whether to repeal or maintain what are now called anti-homosexual laws. And yet, at the core of the debate on whether to scrap or maintain some offences against morality are questions seldom asked and answers frequently assumed.

Let us take, for instance, the following questions: What is the rightful limit to individual liberty in today’s democratic State? Where does the authority of the democratic State begin and end? What should be the source of laws in a democracy? Does the majority rule on matters of “human rights” that contradict popular norms and values? What is wrong after all for the Church to influence public policy or laws if it does so through the democratic process itself?

In tackling the subject of social control and individual liberty, which I think is the main bone of contention, I find John Stuart Mill’s On Liberty (1869) particularly informative. In the book, Mill opines that actions that merely concern the interests of no person, but those who commit them should be addressed through disapprobation, advice, instruction, persuasion or avoidance while maintaining the need for society to hold people accountable to acts or omissions prejudicial to the good interests of others through social or legal punishment when necessary.

In the context of Malawi, the concept of humanness, ubuntu, or umunthu equally holds the key. We are human beings not merely because of our biological make up but because we have qualities or characters unique to our humanity as compared to beasts. As Edward Bond observed: “When humanness is lost, the radical difference between bodies in the pit and people walking on the street is lost.”– The author works for the United Nations in Malawi but writes in his personal capacity