The High Court’s Constitutional Court in Blantyre is set to deliver a landmark judgment this morning in a case challenging Malawi’s laws criminalizing same-sex relationships. The case, brought forward by two applicants, Jan Willem Akster from the Netherlands and Jana Gonani, seeks to have the court declare certain provisions of the Penal Code unconstitutional.
Akster and Gonani, who were facing criminal charges in magistrate courts for engaging in same-sex relationships, brought the matter to the Constitutional Court. They argue that the provisions in the Penal Code under which they were charged violate human rights and should be declared unconstitutional.
The Attorney General (AG), Thabo Chakaka Nyirenda, representing the state and backed by religious groups, has urged the court to dismiss the case. He argues that the applicants are attempting to evade criminal charges in the lower courts among other grounds.
Should the three-member panel of judges, comprising Hon. Joseph Chigona, Hon. Chimbigzani Kacheche, and Hon. Vikocha Chima, rule in favor of the applicants, it would effectively legalize consensual same-sex relationships in Malawi.
The legal provisions in question include section 153 of the Penal Code, which criminalizes carnal knowledge against the order of nature, section 154, which addresses attempts to commit such offenses, and section 156, which criminalizes acts of gross indecency between males.
Private practice lawyers Fostino Maere and Bob Chimkango, representing Akster and Gonani respectively, have argued that these provisions are unconstitutional and infringe on human rights. However, the AG has countered that the applicants lack sufficient interest in the matter and that the consent in their actions was marred by fraud.
Akster is accused of forcibly sleeping with employees, including boys, at a foundation he runs in Blantyre, while Gonani is accused of posing as a woman in drinking establishments to engage with fellow men.
The court’s decision today could mark a significant shift in Malawi’s legal stance on same-sex relationships and potentially set a precedent for future cases concerning LGBTQ+ rights in the country.
