Judge Mambulasa out of same sex case
High Court of Malawi Judge Mandala Mambulasa has recused himself from a three-member Constitutional Court panel hearing a case in which some applicants want the court to declare the country’s sex laws unconstitutional.
When the court convened yesterday, the State protested his inclusion on the basis that before his appointment as judge, he had publicly supported same sex and minority rights.
Private practice lawyer Victor Jere, representing the State and joined by Attorney General (AG) Thabo Chakaka-Nyirenda, argued that Mambulasa had written articles and made presentations in workshops in support of same sex/homosexuality rights.
In this regard, the State argued that his presence on the panel would predetermine the case. Lead judge of the panel Joseph Chigona adjourned the case to come up with a ruling.
He later announced that Mambulasa recused himself from the case and that the Chief Justice would appoint his replacement in due course.
Chigona , thus , adjourned the case to May 23 2023 for the substantive hearing. The country’s sex laws prohibit same sex unions/ homosexuality. Two applicants, Willem Akster, a man previously accused of sodomising nine boys and another boy who was arrested after he was reported for stealing from men while posing as a girl, decided to file their application to the Constitutional Court for interpretation of the Malawi sex laws on grounds that they are discriminatory.The other judge on the panel is Vikochi Chima.
Case Timeline
• Malawi’s first publicly engaged gay couple of Tiwonge Chimbalanga and Steven Monjeza jailed for 14 years for unnatural acts and gross indecency under laws dating from the colonial era.
• May 29 2010: United Nations chief Ban Ki Moon flies into Malawi and secures the release of the pair after talks with then president Bingu wa Mutharika.
• November 2012 : President Joyce Banda’s regime suspends anti-gay laws, pending a debate on whether to repeal the legislation.
• February 2016: The High Court in Mzuzu nullifies the moratorium on LGBTIQ arrests following a petition in which clerics argued the power to freeze or change laws rests with Parliament, not with the President or Cabinet.
• November 2016: Ministry of Justice confirms that government will conduct public inquiries into whether Malawians want the country’s anti-homosexuality laws removed.
• June 2017 : Malawi Human Rights Commission, which declined Justice Dustain Mwaungulu’s request to submit its stand as a friend of the court in a constitutional review stalled case on the legality of homosexuality laws, starts public hearing on the same matter.
• October 2020: Dutch national Jan Willem Akstar appears before the Blantyre Magistrate’s Court to answer nine charges of sexual abuse and sodomy for allegedly molesting students and employees at Timotheos Foundation between January 2018 and April 2020.
• July 2021: Akstar applies for a constitutional review in the High Court, challenging the legality of the country’s anti-homosexuality laws.
• September 2021: The State asks the court to dismiss the matter because the claimant failed to submit skeleton arguments on time
• November 2021: The three-judge Constitutional Court panel threw out the State application, indicating the court was “mindful of the importance of issues being raised in the constitutional referral
