Malawi law which criminalizes homosexual is invalid –rights lawyer
By Nyasa Times
Published: January 5, 2010
Despite homosexuality being illegal under the Penal Code, a human rights lawyer has said the law is inconsistent with the Constitution. Lawyer Chrispine Sibande said: “The Malawi Constitution under Section 5, 199 and 200 guarantees freedom of conscience, privacy and expression, including sexual orientation.”
Sibande said sections 153 and 156 of the penal code which police used to arrest Tiwonge Chimbalanga and Steven Monjeza, the first gay couple to wed publicly, are discriminatory against section 20 of the Republican Constitution.
According to the human rights lawyer, the Constitution is the supreme law of the land, and pointed out that any law inconsistent with the spirit of the Constitution is invalid.
“Therefore Section 153 and 156 of the Penal code, which criminilises homosexuality is inconsistent with the Constitution and therefore invalid,” he said.
Sibande said the Malawi Constitution prohibits any form of discrimination of persons.
He said Section 20 guarantees all persons equal and effective protection against discrimination on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, property, birth or other status.
The lawyer said same-sex marriage is covered in the Section by the words “other status”.
Sibande said the arrested newlywed gay couple can challenge the legality of their prosecution at the High Court.
The pair remains remanded at prison after Blantyre Magistrate Court denied them bail.
“The accused have the right to bail but considering the public interest their case has generated it is the view of the court that they are safe in police custody that out there,” said Chief Resident Magistrate Nyakwawa Usiwa-Usiwa.
Usiwa-Usiwa ordered that state to conclude their investigations into the case ready for a speedy trial from Monday next week.
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