A Judicial review is a court proceeding where a Judge reviews the lawfulness of a decision or action made by a public body until a conclusion is reached.
The order follows an application by three Reverends namely Reverend Patrick Banda, Christopher Kammasamba, and Pastor Tusalifye Mbeye through a Mzuzu based Lawyer George Kadzipatike of Jivason and Company.
The court through Judge Dingiswayo Madise made the order on Monday, which means any person who disobeyed the order shall be guilty of contempt of court and may be imprisoned or fined.
As it stands, it means that court charges for the two suspected gays Curthbert Kulemera and Kelvin Gonani, who were arrested and had their charges dropped by the police, will have to appear before the court to answer charges of homosexuality.
This also means that the Police have got no liberty to drop any charges against suspects of the offence of having carnal knowledge against the order of nature under Section 153 of the Penal Code as illegal and unconstitutional.
The tree ‘men of God’ wanted in their application a declaration that the stoppage by the Executive branch of government to enforce the provisions of Section 153 of the Penal Code by not arresting and prosecuting people suspected of having committed carnal knowledge against the order of nature illegal.
“A declaration that the Director of Public Prosecutions (DPP) has no authority to suspend the operation of any law or to stop subjecting to the due process of the law all persons in the country who are suspected of having committed homosexual offences or offences of having carnal knowledge against the order of nature, under Section 153 of the Penal Code,” reads part of the application.
In 2012, the then-President Joyce Banda called on Parliament to repeal the existing law, under which same-sex relations are punishable with a maximum of 14 years in prison.
She however faced some resistance to the call for the repeal. As a result, President Banda issued a moratorium on the enforcement of the sodomy law.
Recently Kulemera and Gonani were arrested for their alleged sexual encounter in Lilongwe.
They were then released, and after criticisms by some NGOs championing the rights of the minority. The government of Malawi announced that it would no longer enforce the sodomy law.
There have been calls for government to make a decision on the matter but according to the solicitor general who is also secretary to the treasury Dr Jane Banda, the position of government remain unchanged.
She said Government called for a referendum on the matter in order to give Malawians a chance on whether to accept or deny the alleged practice.
“What we have done is to allow people to debate on the matter before we make a decision but the stand of government remain the same,” said Banda.
In a related development, a Gonani who is one of the first homosexuals to come out in public was hacked by people who are said to be against his status.
Speaking to Times TV on Tuesday, Gonani claimed that the attackers were against him being a homosexual.
His pictures went viral on social media on Monday morning with blood oozing from his face