The High Court in Mzuzu has ordered the Malawi Police Service, the Director of Public Prosecutions to continue arresting and prosecuting gays and lesbians who commit homosexual offences in Malawi.
The prosecutions will continue pending a judicial review of the decisions, conduct and abdication of legal and constitutional duty by the Minister of Justice and Constitutional Affairs, the Director of Public Prosecutions and the Malawi Police Service.
A Judicial review is a type of court proceeding in which a Judge reviews the lawfulness of a decision or action made by a public body. In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.
Judge Dingiswayo Madise made the order in Mzuzu on Monday warning any person who disobeyed the order shall be guilty of contempt of court and may be imprisoned, fined or may have their assets seized.
Madise also quashed the decision by the overzealous Malawi Police Service to set at liberty and drop any homosexual charges against Curthbert Kulemera and Kelvin Gonani, suspects of homosexual offence or offence of having carnal knowledge against the order of nature under section 153 of the Penal Code as illegal and unconstitutional.
The order follows an ex-parte application by Christopher Kammasamba, Reverend Patrick Banda and Pastor Tusalifye Mbeye and filed by Mzuzu based Lawyer George Kadzipatike of Jivason and Company.
The trio wanted the Court to declare as illegal and unconstitutional the decision by Minister of Justice and Constitutional affairs re-affirming government's commitment to observing a moratorium on consensual homosexual offences or offences relating to having carnal knowledge against the order of nature.
They also wanted a declaration that the stoppage by the Executive branch of government to enforce the provisions of section 153 of the Penal Code by not arresting and prosecuting people suspected of having committed carnal knowledge against the order of nature, is selective and discriminatory against the Applicants.
"A declaration that the Director of Public Prosecutions (DPP) has no authority to suspend the operation of any law or to stop subjecting to the due process of the law all persons in the country who are suspected of having committed homosexual offences or offences of having carnal knowledge against the order of nature, under section 153 of the Penal Code," reads part of the application.
The judge also ordered the applicants file an interpartes summons for continuation of the interlocutory/injunctory reliefs within 7 days and that hearing of the said interpartes summons must be held within 14 days.
In 2012, then-President Joyce Banda called on the parliament to repeal the existing sodomy law, under which same-sex relations are punishable by up to 14 years in prison. Following some resistance to the call for repeal, President Banda issued a moratorium on the enforcement of the sodomy law.
The debate just recently became public again when Kulemera and Gonani were arrested for their alleged sexual encounter. Both men were released, and after public criticism, the government of Malawi announced that it would no longer enforce the sodomy law.
Justice Minister Samuel Tembenu issued a statement reaffirming the moratorium.
According to lawyer for the pastors, George Kadzipatike, the injunction dated February 9 2016 granted by Judge Madise means everyone who were arrested on homosexuality charges and freed while moratorium was in force will have a case to answer.
The ministers, Director of Public Prosecutions and the police are the respondents in the case number 17 of 2016.
Meanwhile, Reverend Patrick Banda of Young Pastors Coalition of Malawi said President Peter Mutharika to make his position clear on the gay issue.
Press Secretary Gerald Viola said that President Mutharika plans to let Malawians decide on LGBT issues, even if that means putting it to a popular vote via a referendum. He has agreed to support the people, regardless of their decision.