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MHRC presses for legal prudence on gay laws

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The Malawi Human Rights Commission has censured the international community for taking a prescriptive approach on the issues of sexual minority rights in Malawi.

A statement issued on Friday by the public human rights defender says while members of the international community are commended for providing support to the enjoyment of human rights it should ensure that it provides appropriate guidance to the government within the confines of the rule of law.

“The international community is also reminded to engage with relevant authorities and the people of Malawi in a manner that is sensitive to the cultural and other sensitivities that arise on these issues,” reads the press release signed by MHRC Chairperson Justin Dzonzi Minister of Foreign Affairs George Chaponda last month also accused some donors who are pressuring the country to embrace minority rights, arguing that the controversial issue has not been fully accepted even in Europe and the United States of America.

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The commission also wants the international community to realise that across the world, the issue of Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) is yet to receive consensus, and in jurisdictions where progressive advancements have been made the best practice has been through a process of constructive engagement of the citizenry.

“The commission welcomes the position by the international community calling on the government to respect the rights of all persons irrespective of their sexual orientation,” says Dzonzi.

He says the commission is cognisant of the fact that human rights are universal and must be enjoyed by all people across the globe but questions why it has not said anything on the suspension of the application of the sodomy laws through a moratorium.

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The Commission says this is not a legally binding method through which a government amends or repeals its laws.

“The apparent complicit by the international community in this seemingly illegal conduct by the government runs counter to principles of good governance and rule of law,” says Dzonzi.

The commission says it is monitoring the developments on the issue of sexual minority rights following the arrest and subsequent release of gay suspects in Area 25, Lilongwe in December, 2015.

“The two were arrested on allegations that they committed acts of sodomy contrary to section 153 of the Penal Code (Cap 7:01 of the Laws of Malawi), which makes it a criminal offence for any person to “have carnal knowledge of any person against the order of nature; or to have carnal knowledge of an animal; or to permit a male person to have carnal knowledge of him or her against the order of nature”.

The commission also observes that legality notwithstanding anything to the contrary; it notes that the government imposed a Moratorium on the arrests and prosecution of consensual homosexual acts covered under relevant provisions in the Penal Code.

“It is a cardinal principle of Constitutional and Administrative law that all persons responsible for the exercise of power of the State shall only do so to the extent of their lawful authority,” it says.

Dzonzi argues in the statement that an examination of the laws of Malawi clearly shows that only Parliament has the power to make the law.

“The Commission expresses deep concern that the Moratorium which is being used by the Executive arm of Government did not get the sanction of Parliament,” says Dzonzi.

“There is no law in Malawi which gives the Executive legal powers to suspend the application of any law,” he adds.

The Commission declares therefore, that in its present state, the Moratorium is unconstitutional as it has been put in place by an arm of government that does not have legislative powers.

“In order for the Government to continue to operate within Malawi’s constitutional set up, the Executive should table before Parliament a law embodying the spirit of the Moratorium so that it can assume the necessary legal status,” the commission states.

The commission also says statements from People’s Party’s Spokesperson Kenneth Msonda calling upon members of the general public to kill homosexuals irresponsible and contrary to the democratic values of peaceful co-existence and tolerance.

“The commission wishes to remind Mr. Kenneth Msonda that it is a criminal offence under the Penal Code for any person to threaten violence or proposing violence against any other person or intimidating another person or indeed soliciting any other person to break the law,” the Commission says.

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