Malawi: Litigation to decriminalise consensual same-sex sexual acts

Salc : Staff Writer

In September 2013, the Blantyre High Court issued a notice requesting amicus curiae submissions on whether the offence of sodomy is constitutional. SALC assisted a local organisation, the Centre for Human Rights Education, Advice and Assistance (CHREAA), to file a submission which argues that the offence of sodomy, to the extent that it does not distinguish between consensual and non-consensual acts, is unconstitutional. Various human rights organisations based in Malawi have filed amicus curiae submissions.

On 20 January 2014 the case appeared for pre-hearing in the High Court. The Attorney General objected on procedural grounds, arguing that the matter required certification by the Chief Justice as a constitutional matter before determination of the constitutional issues raised by the judge. The Attorney General subsequently obtained an interim order in the Supreme Court staying the proceedings pending a decision by the Supreme Court on certification. The High Court judge who made the ruling which is the subject of the appeal, handed down the written ruling in February 2016, and the Attorney General subsequently withdrew its appeal on the procedural issues. We are awaiting a hearing date.

 

Ruling by Justice Mwaungulu on certification