In this era of human rights campaigners, some people say that it is not the duty of the state to enforce moral behaviour. There are certain activities which though morally repugnant are beyond the tentacles of the criminal law. Among such activities are fornication, adultery, prostitution and homosexuality.
In olden days, no distinction was made between moral and non-moral infringements. In traditional African societies, persons caught in adultery and fornication used to receive capital punishment. In Biblical times, apparently, similar punishments were being meted out to those who engaged in sexual immorality. At one time people, bent on testing Jesus, brought a woman they apprehended and whom they had accused of adultery. They said Moses had decreed that such women be stoned to death. They asked what was his commandment —Jesus said that whoever had never committed a sin should cast the first stone on the woman. The crowd melted away, their mission unaccomplished.
Punishment for fornication and adultery were severe in the past because they were linked with concurrencies of grave nature. In a community there might be an outbreak of epidemics, livestock and humans might be dying in large numbers; lacking scientific knowledge, people attributed these calamities to the wrath of ancestral spirits. What has offended the spirits of the forefathers? People would ask. The diviner or witchdoctor would tell them that someone has committed adultery or fornication — such persons were burnt alive.
The Malawi legal system was established here by the British when they were administering this country. The Wolfenden Committee report on enforcement of morals in England said, among other things: “In this field (the criminal law) its function as we see it, is to preserve public order and decency, to protect sufficient safeguards against exploitation and corruption of others particularly those who are specially vulnerable because they are young in body or mind, inexperience, in state of special physical or economic dependence.”
There are people who in the name of human rights feel that the state should not punish those who infringe moral laws. Sir Patrick Devlin, a former Lord Justice of Appeal and well-known in the history of Malawi, had this to say in his essay, ‘Morals and the criminal law’. “But an established morality is as necessary as good government to the welfare of society. Societies disintegrate from within more frequently than they are broken by external pressure. There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration so that society is justified in taking some steps to preserve its moral code as it does preserve its government and other essential institutions.”
Homosexuality and prostitution per se may not be criminal offences but those who engage in them must not injure innocent and vulnerable members of society. Those engaged in homosexuality privately deserve to be left alone. But when they want to make their activity public by seeking to register it as marriage this will injure most people’s sense of propriety in Malawi. Marriage is a scared institution since the dawn of human life. It is an exclusive and special relationship between man and woman in which the man is called husband the woman is called wife. Any relationship in which terms husband and wife cannot be used is something other than marriage. Those who want to impose homosexual relations on society are trying to exercise their rights at the expense of other people’s rights
In the same way prostitution by itself is not a crime, but soliciting for clients in street or near dwelling homes is repugnant. Admittedly, prostitution cannot be eradicated but it must not be nurtured using pimps and procurers. Non punitive measures should be undertaken to curtail it because widespread prostitution like widespread drunkenness is manifestation of social disintegration.
Goes on Sir Patrick Devlin: “Any immorality is capable of affecting society injuriously and in effect to a greater or less extend it usually does…I do not think that one can talk sensibly of a public or private morality anymore than one of a public highway. Morality is a sphere in which there is public interest and a private interest often in conflict.”
By the way Sir Patrick Devlin headed the Commission of Inquiry into the civil disturbance that took place in Malawi in 1959. His report popularly known as the Devlin Commission Report has been summarised in History of Malawi Volume 2. It laid the foundation for the independence of Malawi in that it convinced the British people that Nyasas (Malawians) were implacably opposed to incorporating their country in the apartheid-like Federation of Rhodesia and Nyasaland.
The point to recap here is that public morality is indispensable. We are continuously being subjected to pressures on moral issues from abroad. While the debate on same sex marriages has not been settled, some people are urging us to decriminalise chamba (hemp) smoking and that the Indian hemp industry could boost the Malawi economy. Of course, many of us who comment on these pages have no credentials in science. But we have eyes and we see people who habitually smoke chamba develop unsound minds and habits. Such people are incapable of contributing to the development of the country. Public morality should be off-handedly discarded.
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