Chief Justice Andrew Nyirenda has certified that the review of the Director of Public Prosecution (DPP) decision to discontinue the criminal proceedings in the Ken Msonda’s anti-gay case should be resolved by the constitutional panel of the High Court.
The Chief Justice’s decision, coming after the hearing of the case in January this year, means that the case will be resolved by a panel of not less than three High Court judges.
The hearing of the case followed a ruling that High Court Judge Redson Kapindu made on September 26 2016 granting two minority rights activists—Centre for the Development of People (Cedep) executive director Gift Trapence and Centre for Human Rights and Rehabilitation (CHRR) executive director Timothy Mtambo – leave to apply for judicial review on the matter and also referred the case to the Chief Justice.
According to a court ruling made in Blantyre on Tuesday by Chief Justice, he stated that there are two matters that have been certified and referred to the constitutional panel.
The two matters include whether the powers of the DPP under Section 99(2) of the Constitution is amenable or subject to challenge by way of judicial review and according to the question and answer to the first matter, “whether the context and manner in which the prosecutorial powers that were exercised by the DPP in the circumstances of the instant case fall within the scope of the exercise of such powers that is amenable and/or subject to judicial review from a constitutional standpoint.”
The powers of the DPP stated under Section 99(2) includes the power to institute and undertake criminal proceedings against any person before the court in respect of any offence alleged to have been committed by that person.
Others include the power to take over and continue any criminal proceeding which has been instituted or undertaken by any other person or authority and the power to discontinue at any stage before judgement is delivered on any criminal proceedings instituted or undertaken by himself or herself or any other person or authority.
Lawyer for the applicants, Khumbo Bonzoe Soko, speaking in a telephone interview yesterday, said the Chief Justice’s ruling brings the DPP’s decision to discontinue criminal proceedins for Msonda under scrutiny.
This case dates back to January 2016 when the Blantyre Magistrate’s Court summoned Msonda, then publicity secretary of former governing People’s Party (PP), over ‘kill homosexuals’ remarks which he purportedly posted on his Facebook page.