Malawi government fights for gay sex ban moratorium

The Malawi government is defending its moratorium on the country’s criminalisation of homosexuality in court after religious leaders sought to compel it to enforce the ban.

The status of LGBT people in Malawi is mired in confusion. In December last year, Justice Minister Samuel Tembenu announced a moratorium on the arrest of Malawians for having gay sex, which carries a penalty of 14 years in prison.

In February, however, a group called the Young Pastors Coalition of Malawi (YPCM), took the matter to the High Court in Mzuzu, which ruled that the government could not suspend laws.

The court “ordered the Malawi police service and the director of public prosecutions to continue arresting and prosecuting gays and lesbians who commit homosexual offences in Malawi”.

Judge Dindiswayo Madise argued that only parliament can repeal or suspend a law and not the government.

Malawi’s Attorney General, Kalekeni Kaphale, has twice unsuccessfully appealed the High Court’s ruling. The case has since been referred by Judge Madise to a panel of judges for review to assess the constitutional aspects of the matter.

The judge also struck off two applicants, Reverend Patrick Banda and Pastor Tusalifye Mbe, saying that they lacked sufficient interest in the case, as “the issue before court is entirely legal and has nothing to do with morality or religion”.

Significantly, Judge Madise also allowed the Centre for the Development of People (Cedep) and the Centre for Human Rights and Rehabilitation (CHRR) to join the case as friends of the court.

Meanwhile, Kaphale has rejected the judicial review and has appealed the matter again, aiming to see the Supreme Court rule on the case.

The Malawi government has been criticised for failing to take firm action to end the decriminalisation of homosexuality.

Gift Trapence, Executive Director of Cedep, told Keycorrespondents.org: “The Malawi government has a duty to enact laws that protects citizens equally.

“The government has also a duty to repeal any discriminatory laws that are inconsistent with the spirit of constitution and international human rights standards. […] Gays and lesbians in Malawi need to be accorded full human rights like any other person.”

Timothy Mtambo, Executive Director of CHRR, further condemned suggestions by the government that the decision on unbanning homosexuality could be settled though a national referendum.

“Holding a referendum is the most fallacious statement the government has ever made. A referendum cannot be conducted on a human rights issue,” he said.