Judgment in Malawi Hate Speech Case Reserved

   Andrew Nyirenda

On 19 January 2017 Malawi’s Chief Justice, Andrew Nyirenda, reserved judgment in the hate speech case against ruling Democratic Progressive Party (DPP) politician, Ken Msonda.

Malawian activists, Gift Trapence, who heads the Centre for the Development of people (CEDEP) and Timothy Mtambo, who heads the Centre for Human Rights and Rehabilitation, filed a hate speech case against Msonda in January 2016. Masonda stated in media interviews and posted comments on his Facebook page saying homosexuals had no rights in Malawi and deserve to be killed.

On his Facebook page, Msonda described homosexuals as being worse than dogs saying, gays and lesbians were the sons and daughters of the devil. He wrote, “Arresting them won’t address this problem because sooner or later they are being released on bail. The best way to deal with this problem is to kill them!”

Malawi is an extremely religious society with 82% of the population Christian and 13% Muslim.  Last month, 60 denominations from more than 50 Christian organizations took to the streets in what they called “The Citizen’s March for Life and Family” to protest against homosexuality and abortion.

At the time of the homophobic rants Msonda was a spokesperson for the former ruling People’s Party (PP). He was reacting to a decision by the country’s justice minister, Samuel Tembenu, which would put a temporary prohibition on anti homosexual laws. Under the current law, those found guilty of homosexuality in Malawi could be sentenced to up to 14 years in prison with hard labour. Justice Minister Samuel Tembenu recently indicated that the laws against homosexuals would be reviewed.

   via VOA

The debate on whether or not Malawi should legalise homosexuality has been raging this traditionally conservative Southern African country. The country’s President Peter Mutharikha joined the debate last year when his Press Secretary, Gerald Vida, told a local radio station that the President fully intended to ensure the rights of the LGBTI community would be respected and protected under the law.

Vida said President Mutharikha planned to let Malawians decide on LGBT issues even if that meant putting it to a popular vote via a referendum. “When the President sees other people being victimized he believes it is best to “leave politics and laws aside and apply human dignity and respect,” he said.

Following media interviews and social media posts the Malawi Law Society (MLS) issued a statement in which it called on authorities to investigate the remarks made by Msonda claiming they bordered on hate speech. The MLS also sent a formal request to the Malawi Human Rights Commission and the Police asking them to investigate the matter and take appropriate action.

The Director of Public Prosecutions investigated the case however decided not to prosecute. This decision prompted Trapence and Mtambo to apply for a judicial review and explore whether the comments made by Msonda should be heard at the constitutional court.

Speaking to OutRight, Gift Trapence, who is CEO of the Centre for the Development of People (CEDEP), confirmed that the Ex Parte G Trapence & T Mtambo (The Msonda kill the Gays Case) was heard by the Chief Justice on 19 January 2017.

“The Chief Justice heard arguments from our legal team as well as from the Attorney General, representing the Director of Public Prosecution (DPP). This hearing was for purposes of having the proceedings certified as a constitutional matter, which would in turn entail that the matter be remitted to a panel of not less than three High Court judges. The Chief Justice has since reserved his ruling and we should, roughly, expect his determination in the next three to four weeks,” he said.

Trapence said since they filed the case all the activists involved in calling for action against Msonda and their lawyer, Mwiza Nkhata, have been receiving threats.  They have been warned of dire consequences if they do not drop the case. He said this had resulted in being forced to seek assistance to increase their security.

Msonda continues to propagate hate against the LGBTIQ community, and told a local newspaper recently; “I stand by what I said and I will repeat it in court - homosexuals have no rights in Malawi and that is why they are being arrested.”

In the meantime some of the country’s civil society organizations have joined CHRR and CEDEP in the court case against Msonda.

The civil society organizations including Youth and Children Rights Shield (YOCRIS), Forum for National Development (FND), and Counseling for the Adolescent Youth Organization (CAYO) have expressed interest joining CHRR and CEDEP in a bid to promote rights of all people including those of Lesbian, Gay, Bisexual and Transgender (LGBT) people.

“It is shocking to note the level of hate that Mr. Kenneth Msonda propagated against people of Lesbians, Gays, Bisexual and Transgender (LGBT). The hate speech which calls for killing of LGBT people cannot be condoned in a democratic Malawi. We believe that Mr. Msonda has every right to express his arguments against LGBT issues but calling for death of the same people is criminal. He has demonstrated being no worse than a person who propagates mob justice instead of letting the law takes its course,” a press statement signed by the three organizations said.

A date for a ruling on the case has not yet been announced but is expected to take place in the next two weeks. Malawi has a Prevention and Combating of Hate Crimes and Hate speech Bill which was approved by Cabinet for public consultation in October last year, however it has not yet been enacted into law. It is expected that this fact could possibly affect the way in which the ruling prevails.