Law experts have faulted Cabinet for by-passing Parliament on its recent commitment to impose a moratorium on arrests and prosecution of people engaging in consensual same-sex activities in the country.
Chairperson of Parliamentary Committee on Legal Affairs, Peter Chakhwantha, and law commentator Justin Dzonzi have argued that the Executive arm of government does not have the legal mandate to suspend any law.
“No Executive arm of government in the world has ever enacted a law on its own and decided to suspend the same. It is a principle of Parliament in the world where laws emanate from. In this case, it only portrays the fact that we have an Executive arm of government that is so obsessed with arrogance when it comes to power. This is a sign of a government that is obsessed with power and has no respect for other two remaining arms of government,” Chakhwantha said.
He said it is unfortunate that the Executive arm of government does not follow the right procedures in trying to get things done.
“To suspend a law is illegal if it is not done by the very same mechanism that made the same. This government is obsessed with breaking the law in this country,” he said.
The government issued a statement on December 19 last year, committing itself to observing the moratorium after police in Lilongwe arrested two men who were suspected of having carnal knowledge of each other.
Chakhwantha said the committee is disappointed with President Peter Mutharika, who has legal background, for his failure to guide the Executive on what the laws of the country say.
In a separate interview, Dzonzi said what the government did was illegal because neither the President nor his Cabinet ministers have a constitutional mandate to suspend a law.
“Because Malawi is a constitutional set up, only Parliament has the power to make laws. In law language, we say only the one who can make a law can unmake it. What that means is that the power to suspend any law in Malawi is only vested in Parliament which means the executive does not have the power to do so and what that also means is that the current suspension of the law without the function of Parliament is unconstitutional.
“The implications are that the decision itself is illegal because it lacks the constitutional mandate and if the government is committed to ensuring that the decision is implemented, then it must take the matter to Parliament so that Parliament can pass a law that suspends the application of the specific provision,” Dzonzi said.
Issues to do with consensual same-sex sexual activities have raised tempers with the Malawi Law Society faulting People’s Party Publicity and Administrative Secretary Ken Msonda for his remarks which advocated for killings of homosexuals in the country.