"The accused have the right to bail but considering the public interest their case has generated, it is the view of the court that they are safe in police custo dy than out there," said Chief Resident Magistrate Nyakwawa Usiwa-Usiwa in his 30 -minute ruling on the couple’s bail application.
The couple, Steven Monjeza, 26 and his bride-to-be, 20-year-old Tiwonge Chimbalanga, were arrested 27 December, following their public traditional engagement ce remony a day earlier, ahead of their planned marriage, scheduled for later this year.
Like in most African countries, homosexuality is illegal in Malawi and the country has stringent laws to reprimand anybody caught in such acts.
The two were last Wednesday charged with three counts of puggery (practicising unnatural acts between males) and gross indecency, contrary to Malawi’s Penal Code.
The two are liable to spend up to 14 years in jail with hard labour if convicted.
Usiwa-Usiwa ordered that the prosecution should conclude their investigations into the case ready for a speedy trial from Monday next week.
"The case should be concluded by Friday next week and, if by then the prosecution had not concluded the case, I may consider granting the accused bail," he said.
Earlier in the hearing, lead prosecutor Dickens Mkombezi told the jam-packed court-room that the state will take the couple to hospital for medical examination on Tuesday to ascertain their gender and whether they have been having carnal kno wledge.
The arrest of the couple has split legal opinion in Malawi with one school of thought saying the couple broke existing laws and must be punished.
However, another school of thought is of the opinion that the Bill of Right enshrined in the new Constitution, adopted in 1995, says no one should be discrimina ted against based on – among other things – their sexual orientation.
Human rights lawyer Chrispine Sibande told PANA Monday the new Malawi Constitution is clear on this.
Section 5,199 and 200 of our new Constitution guarantees freedom of conscience, privacy and expression, including sexual orientation," he said.
Sibande said the Constitution, which he described as the supreme law of the land, says in its preamble that any law inconsistent with the spirit of the Constitution is invalid and therefore sections 153 and 156 of the Penal code, which criminalizes homosexuality, is inconsistent with the Constitution and therefore invalid," he said.