Petitioner denies being gay

Holland national Jan Willem Akstar, one of the claimants in the ongoing same-sex law interpretation case, yesterday told the High Court of Malawi sitting as the Constitutional Court in Blantyre he is not gay.

The claimant stated the position during cross-examination by Attorney General (AG) Thabo Chakaka Nyirenda.

Akstar, who is asking the court to declare as unconstitutional provisions in the Penal Code that criminalise homosexuality, said he moved the Constitutional Court to protect nine men that complained to police and got him arrested.

The claimant said the Malawi Government is on record as having told the world at one of the United Nations meetings in Geneva, Switzerland that it does not arrest people because they are homosexual.

During the cross-examination, Nyirenda read witness statements filed by the nine men who alleged that Akstar had sex with them without their consent, but the petitioner described them as lies cooked up by someone to get him arrested.

“Sixty people were approached to put up statements against me; only nine accepted. I am coming to this court to protect the nine people,” Akstar said.

Private practice lawyer Victor Jere, who is on the defence side with the AG, asked Akstar why he claimed police forced him to write what he wrote in his caution statement when he was arrested.

In the caution statement, Akstar is quoted as having admitted to the offences of having sex with fellow men, but he told the court he was forced and told by the police what to write in the caution statement. He said he had no choice because he had no access to legal representation.

The case has been adjourned to this morning and Akstar is expected to be re-examined by his lawyer Fostino Maere.

Earlier yesterday, Akstar said he was ill-treated by police when he was arrested on the allegations that he forced himself of the men without their consent, alleging that police denied him bail which the court granted him later. He further claimed police denied him legal representation and that an arresting officer demanded K500 000 to set him free.

The Penal Code criminalises acts of carnal knowledge against the order of nature (man sleeping with a fellow man or woman sleeping with a fellow woman), and if convicted, one faces a maximum sentence of up to 14 years in jail.

The other claimant is a transgender woman, Jana Gomani, who has been shielded.

Their cases in the magistrate courts were halted after they made this application to the Constitutional Court and their prayer is that their cases would fall by the wayside if the court agrees with them and declare the provisions in the Penal Code unconstitutional.

Episcopal Conference of Malawi, Malawi Council of Churches, Muslim Association of Malawi and the Evangelical Association of Malawi are some of the faith groups that joined the case as friends of the court where interpretation of Section 153 (c) of the Penal Code is at stake.

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.