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Chief Justice to certify Ken Msonda’s case

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The High Court sitting in Zomba on Tuesday last week referred People’s Party (PP) spokesperson Ken Msonda’s discontinued anti-gay case to Chief Justice to make a decision as to whether the matter is fit for certification to be dealt with as a constitutional cause.

The referral comes as a reaction to the application for leave to apply for judicial review that the Centre for the Development of People (Cedep) Executive Director Gift Trapence and his Centre for Human Rights and Rehabilitation (CHRR) counterpart, Timothy Mtambo filed.

Trapence and Mtambo are asking the court to review the decision of the Director of Public Prosecutions (DPP) Mary Kachale to discontinue criminal proceedings against Msonda in Criminal Case No. 16 of 2016 before the Senior Resident Magistrate Court in Blantyre.

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In January this year, Msonda hit the headlines after allegedly uttering remarks against the gay and lesbian community in Malawi and allegedly suggesting that the best way to deal with them is to “kill them.”

The Magistrate’s summons initially required Msonda to appear before the Court on January 21 to answer to the charges laid.

However, events in the matter took a sudden turn when on January 20, Kachale issued both the Notice of Take-over of proceedings and also the Notice of Discontinuance of the criminal proceedings.

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Making the ruling in his chambers, Judge Redson Kapindu, said it is his considered view that issues raised in the matter are constitutional matters that ought to be dealt with swiftly and decisively by a panel of at least three High Court Judges.

Kapindu said there is the preliminary issue as to whether the powers of the DPP to either take-over criminal proceedings or to discontinue criminal proceedings under Section 99(2) of the Constitution are judicially reviewable.

He also said there are several constitutional questions that the applicants raised including whether the decision not to furnish them with reasons for the decision to discontinue the criminal proceedings violated a constitutional fundamental principle and the right of access to information.

Kapindu said perusing the documents that Msonda filed before the Magistrate’s Court, one also notices that the same raised a number of other constitutional issues, including an argument that the charge and the particulars of the offence violated Msonda’s rights.

Msonda argued that the charge and offence violated his right to freedom of religion, thought, conscience, belief, expression, opinion, association and speech.

“In the final result, I stay these proceedings sine die, pending the decision of the Honourable the Chief Justice on certification of this matter as a constitutional cause in terms of Section 9(3) of the Courts Act. If the Honourable the Chief Justice so certifies, the matter herein shall be heard and disposed of in its entirety by the High Court panel of Judges sitting and so empowered in terms of Section 9(2) of the Courts Act,” part of the ruling reads.

In their affidavit, Trapence and Mtambo argue that the withdrawal of the criminal proceedings against Msonda is a message that the DPP is sending to all and sundry that she and the State of Malawi approbate Msonda’s views.

They argue that it is accordingly, in their words “an open season for the killing of members of the LGBTI community in Malawi”, and that “this cannot be right.”

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