Hammer blow

Dejection was the prevalent mood for human rights campaigners yesterday as the Constitutional Court threw away an application by two individuals who wanted the court to legalise same-sex relationships in the country.

The two, Jan Willem Akster from the Netherlands and Jana Gonani , who were the first and second applicants, respectively, were challenging sections 153, 154 and 156 of the Penal Code that criminalise carnal knowledge against the order of nature as unconstitutional.

Section 153 reads: “Any person who—(a) has carnal knowledge of any person against the order of nature; or (c) permits a male person to have carnal knowledge of him or her against the order of nature; shall be guilty of a felony and shall be liable to imprisonment for 14 years.”

Whereas, Section 154 which the applicants also wanted to be struck off from the laws, reads that any person who attempts to commit any of the offences specified in Section 153 shall be guilty of a felony and shall be liable to imprisonment for seven years.

Section 156, on the other hand, states that any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, shall be guilty of a felony and shall be liable to imprisonment for five years.

However, a three-member panel of judges comprising Joseph Chigona, Vikochi Chima and Chimbizgani Kacheche, in one of the country’s momentous and nail-biting judgements, dismissed the application based on a number of grounds.

Among them, the judges argued that the applicants failed to produce evidence on how the said provisions of the Penal Code were biased against those involved in same sex relations.

Consequently, the judges declared that all the questions the applicants raised through their lawyers about the constitutionality of the provisions were actually legitimate.

However, the judges further recommended that if the applicants were unsatisfied with the determination, they should move Parliament to do the necessary amendments to the laws.

“We find that the provisions are constitutional. If the applicants feel that the said provisions unfairly target them, the best option for them is to lobby Parliament to change the law.

“We, therefore, decline to grant the prayer they have applied for and we remit the first applicant matter back to the lower court to proceed with the criminal proceedings pursuant to Order 19 Rule 75 of the Courts (High Court Civil Procedures Rules 2017) and the second applicant’s appeal to the original judge who will proceed to deal with the merits of the appeal in accordance with this determination,” read Chigona.

The three judges took turns to read the 135-paged ruling that lasted more than six hours to deliver with only about eight minutes of recess for the judges and court attendees to refresh.

Akster, 51, is facing nine charges in the Magistrate’s Cout of sexual abuse and sodomy. He is accused of molesting students and employees at Timotheos Foundation.

The crimes are alleged to have been committed between January 2018 and April 2020 when he was working with the Mapanga-based orphanage in Blantyre.

On the other hand, Gomani was convicted by the Senior Resident Magistrate’s Court in Mangochi in December 2021 of two offences of obtaining by false pretences and unnatural offences contrary to Section 119 and 1539(c) of the Penal Code, respectively.

He was sentenced to three years on the first count, three years on the second count and eight years on the third count. But he later filed summons on application for referral for certification of the matter as constitutional under Section 9(2) of the Courts Act in relation to the third count.

Reacting to the ruling, one of the applicants’ lawyers Bob Chimkango said they would wait for the perfected ruling from the judges so that “we read it and understand deeply.”

“After that, we will advise our clients who will instruct us what to do… The clients will decide on the way forward whether to pursue with Parliament or whether we should appeal,” he said.

On his part, human rights advocate Gift Trapence whose organisation Centre for the Development of People (Cedep) backed the application to challenge the constitutionality of the provisions said the judgement will contribute nothing to human rights jurisprudence in the country.

He said: “The court has fallen short of analysing human rights issues in the context of the country’s Constitution, regional and international instruments that Malawi has signed and ratified in terms of sexuality and gender identity.”

But Ministry of Justice spokesperson Frank Namangale, speaking on behalf of the Attorney General Thabo Chakaka-Nyirenda, said they were excited that the Constitutional Court effectively interpreted the law as they expected.