Malawi court rejects moratorium on gays: Police can arrest homosexuals

[edellwy]

The High Court in Mzuzu has ordered the Malawi Police Service,
the Director of Public Prosecutions to continue arresting and
prosecuting gays and lesbians who commit homosexual offences in
Malawi.

The prosecutions will continue pending a judicial review of the
decisions, conduct and abdication of legal and constitutional
duty by the Minister of Justice and Constitutional Affairs, the
Director of Public Prosecutions and the Malawi Police Service.

A Judicial review is a type of court proceeding in which a Judge
reviews the lawfulness of a decision or action made by a public
body. In other words, judicial reviews are a challenge to the
way in which a decision has been made, rather than the rights
and wrongs of the conclusion reached.

Judge Dingiswayo Madise made the order in Mzuzu on Monday
warning any person who disobeyed the order shall be guilty of
contempt of court and may be imprisoned, fined or may have their
assets seized.

Madise also quashed the decision by the overzealous Malawi
Police Service to set at liberty and drop any homosexual charges
against Curthbert Kulemera and Kelvin Gonani, suspects of
homosexual offence or offence of having carnal knowledge against
the order of nature under section 153 of the Penal Code as
illegal and unconstitutional.

The order follows an ex-parte application by Christopher
Kammasamba, Reverend Patrick Banda and Pastor Tusalifye Mbeye
and filed by Mzuzu based Lawyer George Kadzipatike of Jivason
and Company.

The trio wanted the Court to declare as illegal and
unconstitutional the decision by Minister of Justice and
Constitutional affairs re-affirming government’s commitment to
observing a moratorium on consensual homosexual offences or
offences relating to having carnal knowledge against the order
of nature.

They also wanted a declaration that the stoppage by the
Executive branch of government to enforce the provisions of
section 153 of the Penal Code by not arresting and prosecuting
people suspected of having committed carnal knowledge against
the order of nature, is selective and discriminatory against the
Applicants.

“A declaration that the Director of Public Prosecutions (DPP)
has no authority to suspend the operation of any law or to stop
subjecting to the due process of the law all persons in the
country who are suspected of having committed homosexual
offences or offences of having carnal knowledge against the
order of nature, under section 153 of the Penal Code,” reads
part of the application.

The judge also ordered the applicants file an interpartes
summons for continuation of the interlocutory/injunctory reliefs
within 7 days and that hearing of the said interpartes summons
must be held within 14 days.

In 2012, then-President Joyce Banda called on the parliament to
repeal the existing sodomy law, under which same-sex relations
are punishable by up to 14 years in prison. Following some
resistance to the call for repeal, President Banda issued a
moratorium on the enforcement of the sodomy law.

The debate just recently became public again when Kulemera and
Gonani were arrested for their alleged sexual encounter. Both
men were released, and after public criticism, the government of
Malawi announced that it would no longer enforce the sodomy law.

Justice Minister Samuel Tembenu issued a statement reaffirming
the moratorium.

According to lawyer for the pastors, George Kadzipatike, the
injunction dated February 9 2016 granted by Judge Madise means
everyone who were arrested on homosexuality charges and freed
while moratorium was in force will have a case to answer.

The ministers, Director of Public Prosecutions and the police
are the respondents in the case number 17 of 2016.

Meanwhile, Reverend Patrick Banda of Young Pastors Coalition of
Malawi said President Peter Mutharika to make his position clear
on the gay issue.

Press Secretary Gerald Viola said that President Mutharika plans
to let Malawians decide on LGBT issues, even if that means
putting it to a popular vote via a referendum. He has agreed to
support the people, regardless of their decision.

Say goodbye queers.

http://www.nyasatimes.com/malawi-court-rejects-moratorium-on-
gays-police-can-arrest-homosexuals/