The High Court’s Constitutional Court in Blantyre is this morning at 9 expected to deliver a landmark judgement in a case where two applicants are challenging Malawi’s laws criminalizing same-sex relationships.
The two applicants, Jan Willem Akster, from the Netherlands, and Jana Gonani, who were answering criminal charges in magistrate courts of sleeping with fellow men, brought the matter to the Constitutional Court for interpretation of the provisions in the Penal Code, urging the Court to declare them unconstitutional.
The Hon. the Attorney General (AG) Thabo Chakaka Nyirenda, representing the State and backed by religious groups, has been urging the Court to dismiss the case, arguing that the applicants were only trying to run away from their criminal charges in the lower courts, among other grounds.
Should the three-member panel of judges made of honourables Joseph Chigona, Chimbigzani Kacheche and Vikocha Chima rule in favour of the applicants, it would mean legalisation of consesual same-sex relationships.
The legal provisions the applicants want the Court to declare unconstitutional are section153 of the Penal Code which reads: “Any person who— (a) has carnal knowledge of any person against the order of nature; or (c) permits a male person to have carnal knowledge of him or her against the order of nature; shall be guilty of a felony and shall be liable to imprisonment for 14 years.”
They also want section 154 of the Penal Code struck off from the laws of Malawi which reads: “Any person who attempts to commit any of the offences specified in section 153 shall be guilty of a felony and shall be liable to imprisonment for seven years.”
Another provision also targeted for removal is section 156 of the Penal Code which states that any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, shall be guilty of a felony and shall be liable to imprisonment for five years.
Private pratice lawyers Fostino Maere and Bob Chimkango, representing Akster and Gonani respectively, argued earlier during the hearing that the provisions of the Penal Code referred to were unconstitutional and violated human rights.
But the AG countered that the two men lacked sufficient interest in the matter and that consent to sleep with fellow men, was marred by fraud.
Akster was allegedly sleeping with employees forcebly, including boys, at a foundation he was running in Blantyre while Gonani was posing as a woman in drinking joints to hook fellow men.
