Malawi Law Society questions legality of suspending anti-gay laws

Law Society of Malawi says moratorium is an insult to parliament and that only legislature can make such changes.

Lawyers in Malawi have criticised a government minister for controversial remarks that appeared to suspend the country’s anti-gay laws, throwing the southern African nation’s position into confusion.
Ralph Kasambara, the justice minister, was widely quoted earlier this week as saying that the government had put a moratorium on the laws pending a parliamentary debate.

But the move was condemned as “unconstitutional and illegal” by the powerful Law Society of Malawi (MLS), which represents more than 300 lawyers, prompting the minister to apparently backtrack.
Kasambara, a former prominent human rights lawyer who now doubles as the country’s attorney general, had said the government of President Joyce Banda had advised police not to target anyone deemed to be gay.
He told a radio debate: “There is a moratorium on all such laws, meaning that police will not arrest or prosecute anyone based on these laws.”

But the subsequent criticism has forced him to deny that he ever released a statement on the suspension of the laws. “There was no talk of suspension of any provision of the penal code nor any discussion on same-sex marriages,” he said.

Political analysts in Malawi said the minister has been under pressure to deny the remarks which were published by a newspaper last Sunday. One observer said: “The minister is playing politics. According to the local organisations in Malawi, they have his statement on tape. They plan to release the recording in the coming days.”

Gift Mwakhwawa, president of the MLS, described it as “unconstitutional, illegal and an insult” to the 193-member parliament to “temporarily suspend the criminalisation of same-sex marriage laws”. He said no minister has the right to do so and the government should have followed “appropriate channels through parliament or the courts to issue such a suspension”.

Mwakhwawa added that the suspension “amounts to insulting the powers of the legislature. It is not only unconstitutional and illegal, but also an infringement of the principle of separation of powers between the executive and legislature. This means any minister can wake up and start suspending any law.”
He accused the Banda administration of “playing politics as this builds the culture of impunity”. By issuing the moratorium, he said, the executive “just wants to please donors but abdicating its duties to enforce the laws which were put up through the legislature or to take the laws back to parliament for repeal”.

Repeal of the laws are not up for debate next week when parliament meets in the capital, Lilongwe, a parliamentary official said.

Sections 153 and 156 of Malawi’s penal code criminalise same-sex sexual conduct between men and those convicted face up to 14 years imprisonment, with or without corporal punishment.

Section 137A of the code criminalises “indecent practices between females,” with anyone found guilty liable to a prison term of five years.

The apparent suspension of the laws had been welcomed by Amnesty International and Human Right Watch, which said: “Malawi has taken a bold step forward, putting respect for its own constitutional guarantees of equality front and centre.”