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Cablegate: Malawi: Same-Sex Couple Trial: No Constitutional Review

VZCZCXRO0915
OO RUEHBZ RUEHDU RUEHJO RUEHMR RUEHPA RUEHRN RUEHTRO
DE RUEHLG #0059 0541339
ZNY CCCCC ZZH
O 231339Z FEB 10
FM AMEMBASSY LILONGWE
TO RUEHC/SECSTATE WASHDC IMMEDIATE 0135
INFO AFRICAN UNION COLLECTIVE IMMEDIATE
RHEHAAA/NATIONAL SECURITY COUNCIL WASHINGTON DC IMMEDIATE

C O N F I D E N T I A L LILONGWE 000059

SENSITIVE
SIPDIS
AMEMBASSY YAOUNDE PASS TO AMEMBASSY MALABO

E.O. 12958: DECL: 2020/02/23
TAGS: PHUM PGOV MI
SUBJECT: MALAWI: SAME-SEX COUPLE TRIAL: NO CONSTITUTIONAL REVIEW

REF: 10 LILONGWE 152

CLASSIFIED BY: Bodde Peter, Ambassador; REASON: 1.4(B)

SUMMARY


1. (U) The Chief Justice of the Malawi High Court has denied the
application for a review of the constitutionality of the sections
of the Malawi Penal Code under which same-sex couple Steve Monjeza
and Tiwonge Chimbalanga were charged. The defense attorney can
appeal the denial to the Malawi Supreme Court of Appeals, but this
appears unlikely to be successful. Both Monjeza and Chimbalanga
remain in jail without bail. The Blantyre Magistrate Court's
verdict is scheduled to be announced March 22. End summary.


APPLICATION FOR REVIEW DENIED


2. (U) In a written ruling dated January 28 but only made public
February 22, Malawi High Court Chief Justice L. G. Munlo denied the
Application for Certification of Proceedings brought by same-sex
couple Steve Monjeza and Tiwonge Chimbalanga. The motion asked
that a Constitutional Court be convened to rule on the
constitutionality of Malawi Penal Code Chapter 15, Sections 153 and
156, under which the couple has been charged with "carnal knowledge
against the order of nature" and "gross indecency."


3. (U) In his ruling, Chief Justice Munlo wrote, "From the
totality of the documents that are before me, I have come to the
conclusion that the criminal proceedings that are before the Chief
Resident Magistrate Court do not expressly and substantially relate
to or concern the interpretation or application of the
Constitution."


APPEAL UNLIKELY


4. (C) University of Malawi Dean of Law Dr. Edge Kanyongolo
(protect) told us that an appeal of the denial to the Malawi
Supreme Court of Appeals would be problematic, as Chief Justice
Munlo sits at the head of that court as well. Dr. Kanyongolo
stated, "An appeal, not to mention a successful one, is very,
unlikely. He (the Chief Justice) is not likely to reverse his own
ruling." Kanyongolo did hold out the possibility that a second
Application for Certification, asking for a review of the penal
code vis-a-vis another section of the Constitution, could be
entered by the defense, but did not believe this likely.


CRIMINAL TRIAL VERDICT EXPECTED MARCH 22


5. (U) Monjeza and Chimbalanga remain in jail pending a verdict on
the criminal charges from the Blantyre Magistrate Court. While the
trial phase of the case has ended, the defense attorney and the
prosecution indicated they will present further written arguments
to the Magistrate in the coming weeks. The Magistrate stated he
will rule on the case on March 22.


COMMENT


6. (SBU) Chief Justice Munlo's ruling represents an important
milestone in this case, as it effectively stops a constitutional
review of the sections of Malawi's Penal Code that criminalize
homosexual behavior. Munlo's ruling establishes that sexual
orientation is not a protected status under Malawi's constitution.
BODDE

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