Malawi High Court weighs overturning anti-gay law

Colin Stewart is a 45-year journalism veteran living in Southern…

Malawi’s anti-gay law faced a new challenge this week as the Malawi High Court decided to review the constitutionality of the country’s ban on homosexual intercourse.

That law has been on hold since November 2012, when Justice Minister Ralph Kasambara has called for a moratorium on arrests and prosecutions related to homosexual activity. He later denied reports about that decision, but no arrests have been reported since then.

Earlier in 2012, President Joyce Banda called for the repeal of the law, but she later announced that Malawian legislators were not ready to go along with her on that plan.

Now the Open Society Initiative for Southern Africa reports, via the Nyasa Times:

In a surprising – and potentially game-changing – step, the Malawi High Court has decided to review the constitutionality of the country’s ‘sodomy’ laws, which criminalise consensual sexual activity between individuals of the same sex.

Announced in an advert in the Nation newspaper, the landmark move to review the cases of three individuals, who were convicted and sentenced under Malawi’s homophobic laws in 2011, could lead to the repeal of the infamous section 153(a) of the Penal-Code – if the judges rule that it is unconstitutional.

Remarkably the High Court made the decision by ‘exercising its own jurisdiction under the constitution and the Courts Act’.
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And just as remarkably, the Court has issued an open call to all interested parties – ‘such as the Malawi Law Society, the Malawi Human Rights Commission, civil society organisations (local and international), religious groupings and individuals – to apply to join the matter as amici curias.

It is impossible to guess which way the Court will rule when it sits to consider the matter on December 2nd but the fact that it is even debating the constitutionality of the venal sodomy laws represents a step forward for the rights of sexual minorities.