The Ethics, Peace, and Justice Commission (EPJC) of Evangelical Association of Malawi has faulted government's decision to initiate a public inquiry on homosexuality through Malawi Human Rights Commission (MHRC) describing the move as unconstitutional.
In November 2016 Malawi government through the Solicitor General and Secretary of Justice Dr. Janet Banda announced its plans to conduct a public inquiry on the laws that criminalise homosexuality in Malawi in order to decide as to whether to change such laws or not.
According to Banda, government was receiving enormous pressure to review such laws hence the decision. Ironically, government did not disclose the source of such pressure.
Just last week, the MHRC through its Executive Secretary David Nungu issued a statement confirming that the Commission had accepted government's request made on 7th November 2016 for it to "hold public inquiries on gay rights" so that the findings of the public inquiries would help it [government] "to determine the way forward".
The statement further called for "public input on the roadmap for implementing a public inquiry into LGBTI in Malawi".
However, in its abridged version of its submission to MHRC dated 3rd August 2017 shared with Nyasa Times, the EPJC argues that the only legally and constitutionally accepted "public inquiry" on matters of homosexuality is a referendum.
"We would also like to state that the only accepted 'public inquiry' to inform government as to whether to remove those laws that criminalise homosexuality is a referendum - not a stakeholder centred public inquiry as the government would want to make us believe.
"This is so because any change or remove of the laws that criminalise homosexuality will by implication means a change in the definition, scope of marriage and family as held in our Constitution and other domestic laws," reads part of the statement co-signed by EPJC National Chairperson and Secretary Dr. Zacc Kawalala and Makhumbo Munthali respectively
The statement added: " And family as one of the principles of national policy (Section 13 of the Constitution) and hence being under an entrenched provision of the Constitution [ as reflected in the Schedule to the text of the Constitution ] is a protected area in our Constitution based on the principle of Constitutional Stability , and any attempt to affect such through the repealing of laws that criminalise homosexuality without consulting Malawians through a referendum is not only wrong and unacceptable but also a gross violation of the Constitution".
According to EPJC, besides the entrenched provision of the Constitution the Report of the Law Commission on the Electoral Laws recently release clearly shows other grounds under which any referendum can be initiated, and amongst such grounds is the issue of public pressure exerted on government.
"The Report of the Law Commission on the Electoral Laws (2017) clearly states that 'government might also decide to initiate the referendum because public pressure forces it to hold one or it is divided on the issue at hand'. Already, government confessed that it was receiving enormous pressure hence the decision on public inquiry. It can therefore be argued that government can consider initiating a referendum on this matter based on the said pressure it is receiving" argue Kawalala and Munthali.
The governance arm of EAM further recommends to government to priotise the tabling of Referendum Bill in the next November Parliament sitting over the MHRC's proposal to move the Ministry of Justice and Constitutional Affairs to table a Bill for suspension of anti-homosexuality laws until the Public inquiry is finalised.
"Government should go further to tabling the Referendum Billas already prepared by the Law Commission in the next November sitting of Parliament, and then subsequently subject the issue to a referendum as per the Constitution guarantees [e.gSection 89(1) (i) ]. After all, President Arthur Peter Mutharika already pledged in 2014 during Presidential debate pledged to subject the issue to a referendum," reads part of the statement.
The statement further accuses the government of misleading the nation that Malawi's position on the matter was "outstanding" both locally and internationally as held in MHRC's statement, arguing that Malawi's position on matters of homosexuality was clear since Section 153 and 156 of the Penal Code criminalises the act.
"Malawians should further remind the government through (MHRC) that the question of Malawi's position on homosexuality is an already established one as clearly provided by our laws, and as such there is nothing like an "outstanding national position" on the matter as government and MHRC would want Malawians to believe," argue Kawalala and Munthali.
The duo also describes MHRC's proposal 'to move the Ministry of Justice and Constitutional Affairs to submit to Parliament a Bill of Law for the Suspension of Section 153 and 156 of the Penal Code until the public inquiry is finalised" as unconstitutional and an act that smacks the hidden agenda.
"We also observe that it is unconstitutional for MHRC to "move the Ministry of Justice and Constitutional Affairs to submit to Parliament a Bill of law for the suspension of Section 153 and 156 of the Penal Code until the public inquiry is finalized. Neither Parliament nor the Legislature [including Judiciary] - in our considered view- has the powers to suspend a law or laws whose change or suspension requires a referendum.
"Already, the Court granted an injunction to some Mzuzu residents stopping government from implementing a Moratorium on laws that criminalize homosexuality sought by government. To date the injunction has not been lifted. So moving government to submit to Parliament a Bill of law for the suspension of Section 153 and 156 when the matter is in Court is an anomaly of the Highest Order. The inclusion of this recommendation, if truth be told, smacks the hidden agenda."
The statement further bashed the MHRC's design of 'the roadmap for conducting the inquiry' describing it as not far from a baseline of an LGBT advocacy and awareness raising project.
Meanwhile, one of the leading pro LGBT rights organization MANERELA has also recently rubbished the MHRC public inquiry on the grounds that it would promote discrimination against the minority homosexuals in the country. Malawi's renowned gay rights activist Gift Trapence of Cedep has on several occasions rebuffed the proposal for a referendum, citing "you don't subject issues of sexual minority rights to a referendum".