The Malawi government has amended Section 46 of the Penal Code and in response, the state-funded Malawi Human Rights Commission (MRHC) took the matter to court arguing that it felt that the law was a threat to human rights. MHRC lawyer Chrispine Sibande, before chief justice Lovemore Munlo, argued that the law is a threat to the enjoyment of human rights.
"We have got a law that can easily threaten the right of people in Malawi," Sibande added, asking the chief justice to certify that the case be heard at the Constitutional Court.
On the other hand, government lawyer Principal State Advocate Mphatso Kachule argued that the MHRC does not have the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support their participation in the case.
"The MHRC lacks locus standi in the case," argued Kachule.
He also said, even if MHRC were a suitable party to sue in this matter, it also flouted procedures as it did not give the state 90 days notice besides bringing to the courts an academic exercise.
Sibande however trashed government arguments saying the law does give MHRC a wider jurisdiction to petition the court where issues of human rights are under threat. He also said MHRC did not need to give a 90 day notice because this is not a kind of case where the end desire is to win something.
"There are judgements all over the world that if a law is giving a threat to human rights you don't have to give notice," he argued, saying one cannot wait until a violation of human rights has occurred to act.
"We have got a law that can easily theaten the right of people in Malawi," said Sibande, "that cannot be said to be an academic exercise."
Chief Justice Lovemore Munlo has since reserved his ruling on the matter to a date that will be communicated later.
Several media bodies that include the Malawi chapter of the Media Institute of Southern Africa and the Media Council of Malawi are on the wings awaiting this ruling to join the case.
When the ruling Democratic Progressive Party (DPP) controlled parliament passed this bill different sections of the country pleaded with State President Bingu wa Mutharika not to assent to it but he never heeded as he endorsed a move that did not go down well with the local and international media, foreign governments, donors, rights groups and churches.
Donor aid has been withheld by different donor agencies and foreign governments in an effort to force government to change its position on the matter.
