For breaking news and analysis on Malawi and other stories of interest that impact on Africa

Malawi: Lawyers’ body may overturn suspension of anti-gay laws

President Joyce Banda

The influential Malawi Law Society (MLS)  may force government to enforce the anti-gay laws the country’s justice minister announced on Monday had been suspended pending a vote on whether to repeal them

The law society has since described government’s decision as unconstitutional.

Homosexuality is banned in Malawi – as it is in 36 other African states – and carries a maximum sentence of 14 years, but Justice Minister Ralph Kasambara said he wanted debate on the issue before parliament decided whether to keep the laws or not.

Kasambara, who is also doubles as Attorney General, said that police have been ordered not to arrest gays pending a decision on whether to repeal the legislation, a source of friction with the impoverished southern African nation’s donors.

But the law society  President John Mwankhwawa faulted Kasambara and government describing the suspension as unconstitutional.
 
“That amounts to insulting the powers of the legislature. It is not only unconstitutional and illegal but also an infringement of separation of powers between the executive and the legislature. This means any minister can wake up and start suspending any law,” he said.
 
Mwankhwawa said government has two options; either take the matter to Parliament for repeal or go to the constitutional court.
 
He said taking the matter to the constitutional court was the best prion which would have allowed the Attorney General to ask the court to authorize suspension of the laws as the court studied the demerits and merits of the legislation in question.
 
“They are just playing politics; this builds the culture of impunity because any minister can wake up and decide to suspend a law…” he said.

Sections 153 and 156 of Malawi’s Penal Code criminalizes same sex sexual conduct between men and those convicted face up to 14 years imprisonment, with or without corporal punishment.

Section 137A of Malawi’s Penal Code criminalizes “indecent practices between females,” with anyone found guilty liable to a prison term of five years. 

Amnesty International earlier in the day lauded government for the taking
 The bold move describing it as step in the right direction.

“We urge the government not to lose momentum on this basic human rights issue and to ensure the full repeal of these discriminatory and hate-filled laws,” said Noel Kututwa, the rights group’s Director for Southern Africa.

In 2009, two men were arrested and charged with public indecency after becoming the first gay couple to marry in the socially conservative former British colony.

This drew international condemnation and was one of the reasons Western donors withdrew budget support to the government of Bingu wa Mutharika, who died in April.

A recent report presented to Mutharika’s successor, Joyce Banda, recommended decriminalisation of same-sex marriages as a way of helping the fight against the spread of HIV and Aids.

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