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Court dismisses gay moratorium

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The Mzuzu High Court has for the second time thrown out an application by government on moratorium that suspends the operation of laws which criminalise same sex sexual practices.

On February 18, 2016, Attorney General Kalekeni Kaphale, challenged a n injunction against a moratorium granted by Judge Dindiswayo Madise and asked for discharge of judicial review on grounds that the initial applicants: Christopher Kammasamba, Pat r ick Banda and Pas tor Tusalifye Mbeye, do not have sufficient interest on the matter.

“Having gone through the summons and affidavit of evidence I am of the strong view that the interest of justice tilt towards sustaining the order of injunction and until final determination of the matter or any other order of the court,” ruled Madise in chambers.

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The court has also ruled in favour of Young Pastors Coalition of Malawi (YPCM) on the application to refer the case to the Chief Justice for certification as a constitutional matter.

“This is a suitable case for reference to Chief Justice for certification. I am of the view that a panel of not less than three judges will be able to adjudicate on all the issues that have been raised in the matter. It is my humble prayer that the certifying authority if he is pleased will consider empanelling five judges due to seriousness and sensitivity of the matter,” reads part of the ruling.

Madise has also given a nod to Centre for the Development of People (Cedep) and Centre for Human Rights and Rehabilitation (CHRR) to join the case as friends of the court.

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However, the court has struck off two applicants, Reverend Patrick Banda and Pastor Tusalifye Mbeye arguing that they do not have sufficient interest on the matter following an application by Kaphale.

“The 2nd and 3rd applicants indeed lack interest. The issue before court is entirely legal and has nothing to do with morality or religion. The issue before this court is to a larger extent, whether the executive branch of government was within its legal mandate when it suspended gay laws. I, therefore, strike off the 2nd and 3rd applicant,” reads part of the ruling.

Lawyer for the YPCM George Kadzipatike said in an interview that the case will continue with Christopher Kammasamba as first applicant and Cedep and CHRR who have joined the case.

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