The High Court is expected to determine whether politician Ken Msonda’s anti-gay remarks case should be heard as a constitutional case or not in line with the laws of Malawi this Thursday.
Earlier last year Msonda had said gays in Malawi should be killed calling the act ‘evil.
It was after this that human rights bodies dragged him to court for inciting violence against homosexuals in Malawi which contravenes Section 124 of the country’s Penal Code.
Msonda is alleged to have posted on Facebook that homosexuality is a sin and the people who practice it do not deserve human rights but to be killed.
It is on the basis of these remarks that Cedep and CHRR have decided to drag Msonda to court to answer a charge of incitement to break the law under section 124 (1) (b) of the Penal Code.
The Section states that “any person who, whether in writing or by words or by his behaviour or otherwise— (a) solicits or incites any other person to fail to comply with or to contravene any law in force in Malawi or in any part thereof; or (b) indicates or implies to any person that it would be incumbent or desirable to fail to comply with or to contravene any such law, shall be liable to imprisonment for five years”
According to the Section, claims that one’s incitement could not lead to actual violence can not be used defence.
But in the same month of January 2016, Director of Public Prosecutions had filed a notice before the Chief Magistrate’s Court to discontinue the case, underlining that the State will not prosecute Msonda.
The dismissal of the case had not gone well with the United Nations High Commissioner for Human Rights.
The body described Msonda’s statement as a threat to the gay and lesbian community in Malawi.
The human rights groupings were then in September 2016 granted leave to apply for a judicial review on the case and it was referred to Chief Justice Andrew Nyirenda for its certification as a constitutional case in line with section 9 (2) and (3) of the Courts Act.