The Malawi Human Rights Commission (MHRC) has joined those calling as unconstitutional the move by government to suspend the country’s anti-homosexuality laws using a moratorium issued by a Cabinet minister.
Following the arrest of a suspected gay couple in Lilongwe recently, government bowed down to pressure from local and international rights groups calling for their release but moved further to also reaffirm a moratorium issued by the former Joyce Banda-led government.
However, legal experts have dismissed such a moratorium—which means no persons can be arrested or put on trial for violations under Section 153 of the Penal Code despite the law not yet repealed by Parliament—as illegal.
In a statement signed by chairperson Justin Dzonzi, MHRC says the moratorium effectively “amends or repeals” provisions of the law, something the commission says has been done illegally.
The move, the commission further argues, “raises serious negative implications for the fundamental principles of the rule of law and separation of powers as provided for in the Constitution.”
Reads the statement in part: “The commission expresses deep concern that the moratorium which is being used by the Executive arm of government did not get the sanction of Parliament. There is no law in Malawi which gives the Executive legal powers to suspend the application of any law. Therefore, in its present state, the moratorium is unconstitutional as it has been put in place by an arm of government that does not have legislative powers.”
Danwood Chirwa, a South Africa-based constitutional law expert, agreed with the view that the moratorium is illegal.
“It is correct that the Executive, whether collectively as Cabinet or severally as a ministry, minister or president, does not have the legal authority to suspend any law. Therefore, at a formal level, the suspension is unlawful,” Chirwa wrote Nation on Sunday in an e-mailed response.
Chirwa, however, described the move to suspend laws criminalising homosexuality as a “shrewd political manoeuver” on the part of the government realising that it would be putting its MPs “under enormous pressure to vote on this issue, given what appears to be a strong public sentiment against homosexuality.”
Attorney General Kalekeni Kaphale, who is legal adviser to government, could not categorically state yesterday whether the wave of condemnation will prompt government to revisit its position or not.
However, Kaphale said his office was taking note of views from various stakeholders on the matter and will advise government appropriately. n