The Media Council of Malawi (MCM), the Malawi chapter of the Media Institute for Southern Africa (MISA-Malawi) and the Human Rights Consultative Committee (HRCC) have said they will also be joining the case once the chief justice certifies it.
A joint statement by the two media bodies says it has appointed lawyer Mandala Mambulasa to represent it in the case as it was already ready to go to court on the same matter.
"In the light of the new development that MHRC has already gone ahead to court, the media body will apply to join the case," declared the statement.
MHRC chairperson John Kapito filed an affidavit where the body is arguing that the amended penal code violates Section 35 of the Malawi Constitution which provides for freedom of expression, Section 36 which provides for freedom of the press as well as Section 37 which provides for the right to access to information.
The court should, according to MHRC note that under Section 15 subsection 1 of the Malawi Constitution the Executive, the Legislature and the government and its agencies, are obliged and have undertaken to respect and uphold the human rights and freedoms enshrined in the Constitution including freedom of expression, freedom of the press and access to information.
The matter was filed in the High Court in Blantyre on Friday 11 March 2011 and is awaiting certification by Chief Justice Lovemore Munlo to be considered as a constitutional matter and be heard by a constitutional court.
The commission argues in the affidavit that in terms of Section 46 subsection 1 of Malawi Constitution, the national Assembly or any other legislative authority are obliged and have undertaken not to make any law which abolishes or abridges the fundamental rights and freedoms conferred by Chapter four of the Constitution.
The commission is also arguing based on the Malawi Constitution's section 5 which states that any law that is inconsistent with the supreme law [the Constitution of Malawi], like is the case with amended Section 46, is invalid.
The affidavit also looks at the constitutional provisions on the limitation of rights.
Section 44(2) and (3) of the Malawi Constitution states that limitations of rights has to be reasonable, recognised by the international human rights standards and necessary in an open and democratic society.
They claim in the issue of the amended section the act of Parliament is giving too much power to one single man known as minister of information.
"The limitations of the human rights imposed by Section 46 of the Penal Code as amended is not reasonable, not in accordance with international human rights standards and not necessary in an open and democratic society," argued the affidavit. "Furthermore, it has the effect of negating the essential content of the human rights in question."
