Clergy, CSOs join same-sex case
The High Court of Malawi sitting as a Constitutional Court yesterday admitted faith groups and civil society organisations (CSOs) as friends of the court in a same-sex union case to define the constitutionality of banning the relationships.
The religious bodies are Episcopal Conference of Malawi (ECM), Malawi Council of Churches (MCC), Evangelical Association of Malawi (EAM) and Muslim Association of Malawi (MAM).
On the other hand, the CSOs are Centre for Human Rights Education, Advice and Assistance (Chreaa), Centre for Human Rights and Rehabilitation (CHRR) and Centre for the Development of People (Cedep).
The matter follows the application by Jan Willem Akster and Jana Gonani who are challenging the Penal Code that criminalises carnal knowledge against the order of nature as unconstitutional.
Akster was earlier arrested and charged with having carnal knowledge of seven male persons contrary to Section 153(a) of the Penal Code in a magistrate’s court.
Through their lawyers Bob Chimkango and Fostono Maele, the claimants brought their first witness Alexandra Muller, a medical practitioner and a professor of medical sociology at the University of Pretoria in South Africa.
In her testimony, the German told the court that she conducted research in Malawi and found that homosexuals and other marginalised groupings are at more risk of living shorter lives and being subjected to drug and substance abuse.
Muller further told the court that in her research, which was approved at Kamuzu University of Health Sciences, she engaged about 197 lesbians, gays, bisexual, transgender and intersex (LGBTI). Her research further found that the concerned grouping was not able to get health care services, she told the court.
In cross-examination, Attorney General Thabo Chakaka Nyirenda asked Muller if she engaged police and hospitals to prove her findings that they were not able to get healthcare services.
Muller responded that she did not engage both police and hospitals.
On his part, State prosecutor Victor Jere quizzed Muller on the objectivity of her research and asked her if she is a member of LGBTI.
In response, she said: “Yes, I am a gay woman.”
But Jere said in that case her findings “were not objective because you did not get information from medical personnel”.
During examination, Chimkango asked Muller to justify why her research was based on the 197 LGBTI.
Muller said there is no study that can interview the whole population and that the questions the LGBTI were answering in the research met the recommended international standard.
After hearing the matter, the three-judge panel comprising Joseph Chigona, Vikochi Chima and Chimbizgani Kacheche adjourned the matter to July 17 2023.
Earlier yesterday, lawyers representing ECM, EAM and MAM Innocentia Ottober, Bright Theu and Frank Mbeta in that order asked the court to allow them cross-examine Muller, saying she was an expert witness. However, the court rejected their plea.
A ruling in favour of the two would effectively legalise same-sex marriages and LGBTI activities in the country, which are outlawed by sections 153 and 156 of the Penal Code.
In 2012, the Ministry of Justice issued a moratorium on arrests and prosecutions for consensual homosexual acts. However, a 2016 High Court order suspended the moratorium pending judicial review by the Constitutional Court.
The moratorium goes back to 2010 on the conviction of Steven Monjeza and Tiwonge Chimbalanga who were arrested for so-called unnatural offences and indecent practices between males under Sections 153 and 156 of the Penal Code.
