The Peter Mutharika led government maintains that homosexuals will not be arrested in Malawi despite heavy condemnations and legal rejection on the same.
A latest development shows that government has gone against an injunction which gave law enforcers a mandate to net homosexuals in the country.
Earlier this year, High Court Judge Dingiswayo Madise granted an injunction requested by anti-gay pastors seeking an end to the government’s moratorium on arrests under the country’s anti-homosexuality law during court deliberations on that law’s constitutionality.
Madise demanded responses from police; Samuel Tembenu, the minister of justice and constitutional Affairs; and Malawi’s top prosecutor, Mary Kachale, the director of public prosecution. He issued an order restraining police and Kachale “from continuing to cease arresting and prosecuting suspects of homosexuals offenses or offenses relating to carnal knowledge against the order of nature.”
The court order was requested by the Young Pastors Coalition of Malawi, which last month had called for the re-arrest of two Malawian men who faced homosexuality charges in December but then were released as the moratorium was reaffirmed.
The Pastors Coalition through lawyer Jivason Kadzipatike were granted leave for judicial review.
The pastors’ grouping also asked government to re-arrest alleged homosexuals who were recently freed following the court dismissing the moratorium.
They said homosexuals’ rights should not be given room in Malawi; hence, the need to re-arrest of Cuthbert Kulemeka and Kelvin Gomani who are suspected to be homosexuals. Government dropped the charges after pressure from donors and some civil society organisations (CSOs).
But Attorney General Kelekeni Kaphale has challenged the injunction and filed his affidavit dated February 18, 2016 saying the Pastors Coalition has “no sufficient interest” in the matter as they have any of their rights directly affected.
“In the circumstances, it is my sincere belief that all the applicants before the court do not have the sufficient interest in the matter, and I therefore pray that the grant for leave for judicial review for them be discharged forthwith,” said Attorney General in his statement lodged with the court.
YPCM national director Patrick Banda said the religious leaders will ask their lawyer Kadzipatike to fight the case.
The pastors have since called on Malawians to fight against promotion of gay rights and have vowed to fight against homosexuality.
Initially in an interview with Malawi24, Chancellor College based legal expert Professor Edge Kanyongolo said that the directive government has made cannot force people to conclude that homosexuals are finally free in Malawi.
He said ”They (homosexuals) cannot be said to be “free” to practice because, until the law is repealed, any person – whether he or she is heterosexual or homosexual- who has sex in a manner that is “contrary to the order of nature” will be deemed to be violating section 153 of the Penal Code which states that : “Any person who has carnal knowledge of any person against the order of nature; or has carnal knowledge of an animal; or permits a male person to have carnal knowledge of him or her against the order of nature shall be guilty of a felony”.
Kanyongolo said that when reviewing the laws, there is need that a balance should be struck between all the necessary legal mandates.
‘’Whether the laws need to be reviewed will emerge from the on-going debate as well as assessments of the Law Commission which, hopefully, will also give direction on how a balance should be struck between section 153 of the Penal Code, and the sections of the Constitution which guarantee the rights to privacy, dignity and equality,’’ said Kanyongolo.
In 2012, former President Joyce Banda imposed a moratorium on anti-gay laws and ordered the police to stop arresting people committing homosexual acts.
Sections 153 and 156 of Malawi’s penal code criminalize sexual conduct between men and anyone convicted faces up to 14 years imprisonment, with or without corporal punishment.
Section 137A of the penal code criminalizes “indecent practices between females”, with anyone found guilty liable to five years in prison.