Why the hullaballoo, about same-sex relations
You may be wondering why the hullaballoo about same-sex relations now. Indeed, why the country’s biggest faith groups across the country on July 13 marched against same-sex marriages to demonstrate their revulsion to the practice.
To the best of my knowledge, this is the first time that all major faith groups in the country have jointly held demonstrations against the same cause. The faith groups are the Episcopal Conference of Malawi, Malawi Council of Churches, the Evangelical Association of Malawi, the Muslim Association of Malawi and Quadria Muslim Association.
The marches across the country enabled them to deliver their message to the country’s Constitutional Court, albeit through Parliament, where there is a pending case to rule against same-sex unions.
The demonstrations are also important because they are set to transform the media landscape on reporting on matters that are in court. Media practitioners have all along ben cultured to believe that it is matter sub judice for the media to comment through the published word on a case that is in court. The media has been able to report on anything that transpires in court on any case, but not comment in a manner that would influence the court’s verdict on a case.
Wrongly or rightly it has also been believed that the public ought to tread carefully when making statements on an issue that is in court lest they influence its outcome. But here is a whole nation doing exactly the opposite. The development raises the question: to what extent, if at all, the courts can be influenced by public statements in their determinations on issues before them.
The Constitutional Court is supposed to interpret Section 153 (c) and 156 of the Penal Code of Malawi which criminalise consensual relations between two consenting adults. The case follows a constitutional referral matter of 2021 involving a Dutch national Jan Willem Akstar. He is facing nine charges of sexual abuse and sodomy. He is accused of molesting students and employees at Timotheos Foundation when he was working as a financial manager at the Mapanga-based orphanage in Blantyre. He is alleged to have committed the alleged crimes between January 2018 and April 2020.
Timotheos Foundation offers a bursary scheme by paying school fees for needy students. Akstar is alleged to have been taking advantage of this scheme to force himself on the beneficiaries.
On the other hand, Gonani is a transgender who was convicted in December 2021 by the Mangochi Senior Magistrate Court on two offences of obtaining by false pretences and unnatural offences contrary to Section 153 (c) of the Penal Code. He was sentenced to three years on the first count, three years on the second count and eight years on the third count.
The two are challenging the constitutionality of banning same-sex marriages in the country. They thus want the court to declare the two pieces of legislation unconstitutional, arguing that they violate their right to privacy, dignity among others.
Section 153 states that any person who has carnal knowledge of any person against the order of nature shall be guilty of a felony and shall be liable to imprisonment.
On the other hand, Section 156 provides that any person who, whether in public or private, commits any act of gross indecency with another male person … shall be guilty of a felony.
A ruling in favour of the two would effectively legalise same-sex marriages and lesbian, gay, bisexual, and transgender and intersex (LGBTI) activities in the country which are outlawed by Sections 153 and 156 of the Penal Code.
The critical statement that the faith groups have made is that they will not keep quiet against what they understand and believe to go against their religious beliefs even if such issues are being contested in a court of law.
