On suspending the law about same sex relationships

In the November 7 2012 issue of The Nation, we read that the spokesperson of the Malawi Law Society (MLS) roundly criticised Malawi’s Attorney General for directing the police not to arrest homosexuals until further notice. Some of the remarks, which the MLS spokesperson made reminded me several things.

The first is the advice that economics undergraduates in Britain are being given so that whenever they give economic advice, it should take into account these other matters. Quite often what on paper is seen as splendid advice has proved impractical because the advice was based exclusively on specialised knowledge.

I hope the same advice is being given to law students, that they should acquire a good grounding in government, politics, history and so on. Where a magistrate has some discretion in pronouncing judgement and determining a sentence, he should approach the matter broadly.  

An illustrative episode might do. Two or three years ago, I questioned the rationale of sentencing two Zimbabwean women by a Mzuzu magistrate for overstaying in this country. I argued that for at least a century, Malawians have been going to Zimbabwe to look for work and thousands of them have come back. Malawi cannot afford to antagonise Zimbabwe on matters of immigration. The sentence was too harsh, but do not know whether my concern was given attention.

The MLC spokesperson has rightly averred that in suspending the law, the government is trying to please the donors, and he thought the law must stand because suspending it is illegal and is an infringement of the separation of powers.

Well argued, but does ignoring the views and attitudes of the donors contribute to the economic and social welfare of Malawians? The Bingu wa Mutharika administration was gung-ho about Malawi’s sovereignty and did not mind insulting diplomats. The urgently needed budgetary support was withheld, and we have not recovered from the after-effects.      

Politics, it has been said, is the art of the possible; what is in the statute book should be carried out with due cognisance of the political consequences. If implementing the law at a particular time gives rise to political imponderables then the implementation should be suspended.       

MLS apparently did not give much weight to the facts of history. Time and time again, I have read in magazines or books that certain statutes, which were made by the Tudor kings in England, remained on the statute book for several centuries though they were not being implemented. A case in point is the law concerning closing shops on Sabbath day or Sunday. 

Law, let us not forget, is the outcome of philosophy.It reflects the morals and ethics of society. It is not the source of philosophy. People’s morals and ethics get modified gradually. There comes a time when they do not feel very strongly about a particular belief or moral. Any law based on such ethics is then given a benefit of doubt, it is allowed to gather dust until much later when it is actually repealed.

 In the situation such as the present, when the government is receiving a lot of pressure from those who are against repealing the law and those who want to repeal it, suspension was a sensible compromise.

What should we advise parliamentarians? Should they repeal the laws? I would suggest they should just modify it.

In Britain and other European countries, polygamy is illegal. Yet, a married man may establish relationships with another woman without incurring the wrath of law. If he goes to the Registrar of Marriages to get the relationship registered as marriage, his request will be refused when he discloses that he is married to another woman. If he conceals the fact, he and the mistress will be charged with the offence of bigamy once they are registered unlawfully.

The law about homosexual should not criminalise the practice, but should make provision for their marriage. If two men go before the Registrar of Marriages, and ask to be registered as married couple, they should be told that the Marriage Act recognises relationships between persons of different sexes, male and female period only as qualifying for marriage.

Homosexuality, incest and bestiality are not foreign practices in Africa. What is alien is the idea that persons of the same sex may get registered as married.

 Amnesty International and other organisations that are championing the rights of homosexuals are hypocritical and unrealistic. Up to about the 1980s or 1990s, neither in America nor in Britain could homosexuals be employed in the Army.

Now, they are talking as if homosexuals there have had equal rights with other people since the dawn of democracy. This is not so.