High Court says laws that criminalizes homosexuality in Malawi are still constitutional: Do it, you will be arrested
The High Court in Blantyre sitting as a constitution court has dismissed the application in which Jan Willem Akster, from the Netherlands, and Jana Gonani were challenging the Penal Code that criminalises carnal knowledge against the order of nature as unconstitutional.
After hearing the matter, the three-judge panel comprising Joseph Chigona, Vikochi Chima and Chimbizgani Kacheche has thrown out the case based on a number of reasons. Among the reasons given, the applicants failed to bring evidence of how the provisions in the country’s laws were discrimitory against homosexuals.
The judges have further recommended that if the applicants are still not satisfied, they will have to move Parliament to do the necessary amendments to the laws but according to them, the laws of the country are not in infringement of rights of people who identify themselves as homosexuals as the applicants had submitted before the court.
Meanwhile, leader for Centre for Development of People (CEDEP) Gift Trapence says they have heard the judgement and that they will sit down and chart the way forward. On the other hand spokesperson for the Ministry of Justice Frank Namangale says they have welcome the ruling and agreed with directions that the court has made.
The two applicants, Akster and Gonani, who were answering criminal charges in magistrate courts of sleeping with fellow men, brought the matter to the Constitutional Court for interpretation of the provisions in the Penal Code, urging the Court to declare them unconstitutional.
The Hon. the Attorney General (AG) Thabo Chakaka Nyirenda, representing the State and backed by religious groups, has been urging the Court to dismiss the case, arguing that the applicants were only trying to run away from their criminal charges in the lower courts, among other grounds.
Should the three-member panel of judges made of honourables Joseph Chigona, Jack N’riva and Vikocha Chima rule in favour of the applicants, it would mean legalisation of consesual same-sex relationships.
The legal provisions the applicants want the Court to declare unconstitutional are section153 of the Penal Code which reads: “Any person who— (a) has carnal knowledge of any person against the order of nature; or (c) permits a male person to have carnal knowledge of him or her against the order of nature; shall be guilty of a felony and shall be liable to imprisonment for 14 years.”
They also want section 154 of the Penal Code struck off from the laws of Malawi which reads: “Any person who attempts to commit any of the offences specified in section 153 shall be guilty of a felony and shall be liable to imprisonment for seven years.”
Another provision also targeted for removal is section 156 of the Penal Code which states that any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, shall be guilty of a felony and shall be liable to imprisonment for five years.
Private pratice lawyers Fostino Maere and Bob Chimkango, representing Akster and Gonani respectively, argued earlier during the hearing that the provisions of the Penal Code referred to were unconstitutional and violated human rights.
But the AG countered that the two men lacked sufficient interest in the matter and that consent to sleep with fellow men, was marred by fraud.
Akster was allegedly sleeping with employees forcebly, including boys, at a foundation he was running in Blantyre while Gonani was posing as a woman in drinking joints to hook fellow men.
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