Malawi government through the Attorney General (AG) Kalekeni Kaphale has challenged an injunction obtained by the Young Pastors Coalition from the High Court sitting in Mzuzu, three weeks ago, which threw out the moratorium on gays which government has been observing for the past three months.
In the initial application the young pastors through their lawyer George Kadzipatike of Jivason and Company, were granted leave for judicial review as they wanted continued arrest of people engaged in homosexual activities arguing that they contravene the order of nature as provided for in section 153 of the Penal Code.
But in his affidavit dated February 18, 2016 Kaphale argues that the applicants [Christopher Kammasamba, Patrick Banda and Pastor Tusalifye Mbeye] in that order do not have sufficient interest in the matter such that the moratorium on gays should be sustained.
Kaphale argues that since the three have not had any of their rights directly affected or infringed upon by the challenged acts or government’s failure to hold culprits answerable, they are not qualified to be parties with direct interest in the matter.
“In the circumstance, it is my sincere belief that all the applicants before the court do not have sufficient interest in the matter and I, therefore, pray that the grant of leave for judicial review to them be discharged forthwith,” reads Kaphale’s statement in part.
Additionally, Kaphale contends the inclusion of Christopher Kammasamba as an interested figure in the case, saying despite that he is answering some criminal charges in court he still lacks locus standi [sufficient interest] because the charges in question are not on homosexuality.
“The first applicant is an accused person answering to a case of obtaining goods by false pretence, he is not answering to any homosexuality charges …and has not personally suffered any harm or injury through the alleged non-enforcement of homosexuality laws,” he adds.
When called for reaction lawyer Kadzipatike said he is yet to be served with the AG’s papers but disclosed that he and his clients adhered to Judge Dingiswayo Madise’s order which asked them to file for an interpartes summons for continuation of the reliefs within seven days from the date that the court order was granted.
Speaking separately, Pastor Banda said they will carry on with the fight and insisted they remain parties with sufficient interest being Malawian citizens.
“Let me emphasize that even Kammasamba remains an interested party in this case because he is answering to criminal charges and homosexuality is criminal too. We will continue to seek legal advice from our counsel but we will not sit and watch the Constitution being raped continuously,” he said.
Asked on how the case will proceed in court in the wake of the conflicting applications, Judiciary spokesperson, Mlenga Mvula, said in a telephone interview yesterday that it is at Justice Madise’s discretion to set dates for hearing of the two applications which can be heard concurrently or separately.