Photo courtesy of South African Litigation Centre
15 March 2016
A neighbourhood group forced their way into the homes of two men and ransacked it. They were charged with sodomy, forced to have HIV tests, as well as tests for other sexually transmitted infections. (Source)
This incident from December shows the oppression gay and lesbian people still face in Malawi.
In 2012, we saw a shift in the policy of the Executive branch of the Malawian Government towards sexual minorities. It committed itself to upholding regional, international and fundamental human rights obligations.
Former President Joyce Banda imposed a moratorium on all arrests and prosecutions of consensual same-sex practices under the Malawian Penal Code.
In January 2016, the moratorium was reaffirmed by the Minister of Justice. He confirmed the Executive’s commitment to the advancement of human rights, as enshrined in Malawi’s Constitution. He also declared that there would be a review of the Penal Code’s criminalisation of same-sex practices. He stated:
“The Constitution of Malawi represents the collective wisdom and values of the people of Malawi…Malawi as a member of the international community is also committed to adhere to universally accepted human right standards…Government has also consistently invited civil society to carry out intensive sensitization campaigns on gay rights, as the concept is alien to Malawian culture since the previous two attempts the change the law met with stiff resistance from the general public…”
This reaffirmation of the rights of sexual minorities was a consequence of what happened to the two men described at the top of this article. Charges against them were withdrawn after the Minister of Justice intervened.
But in February 2016 there was a setback to the rights of sexual minorities. A group of religious leaders obtained an interim order to stay the operation of the government moratorium. The religious leaders argued that the moratorium was unlawful because it was not enacted through a declaration by Parliament. The consequence is that police officials now have the go-ahead to arrest people suspected of having homosexual sex. This will continue to be the case until the courts determine the lawfulness or not of the moratorium issued by the Executive.
Realistically, it will take the judiciary several months to reach a decision about the lawfulness of the moratorium. Unfortunately, in the meantime, unless the government puts measures in place to protect sexual minorities, the suspension of the moratorium has left many gay and lesbian people vulnerable to discrimination and arrest.
The Executive should be commended for its efforts to impose a moratorium on the enforcement of the Penal Code provision: their position not only advances minority rights in Malawi, but sets an example for other African states. Despite this, the government’s efforts have been insufficient.
The Executive, with respect, appears to be playing both sides, in an attempt to appease all parties. On the one hand, it has confirmed its commitment to universally accepted human rights, such as the rights to privacy, dignity and non-discrimination against sexual minorities. But on the other, it claims to uphold the “values of the people of Malawi”. This approach is contradictory. The Executive is well aware that the many Malawians are uninformed and intolerant on the issue of sexual diversity and find same-sex relations “culturally unacceptable….and against the will of God” and that they openly discriminate against sexual minorities.
On a daily basis, sexual minorities are treated with intolerance. The Centre for Human Rights & Rehabilitation Executive Director reported that “…instead of treating them like any other patients, some medical personnel make fun of homosexuals, some refuse to treat them…”.
A recent Afrobarometer Tolerance Index, claimed that only six out of every hundred Malawians would tolerate a homosexual person as their neighbour. This is despite the fact that Malawi was ranked the most tolerant state out of the thirty three African countries measured.
The Constitution of Malawi binds the Executive, Legislature and Judiciary and requires equal protections of the law for all the people of Malawi. If the Executive wishes to uphold its Constitutional mandate, it must play a more active role to advance and protect the “universally accepted human rights” of sexual minorities.
It has been about four years since the first moratorium was imposed by former President Banda. Since then, the discriminatory provisions of the Penal Code have remained in the statute books of Malawi and the Executive has done nothing to review or remove these provisions or to educate society or carry out sensitization campaigns on gay rights, tolerance and acceptance of diversity. The continued existence of these laws placed sexual minorities at risk of being arrested and prosecuted, and perpetuated social stigma, intolerance and discrimination.
The Executive should take urgent steps to remove the discriminatory provisions. Moreover, it needs to enact measures that actively protect sexual minorities.
The Executive can do this by using the legislative process to review and ultimately abolish the provision. Or it could approach the judiciary and seek a declaration that the anti-homosexual law is unconstitutional.
The religious values and morals of many Malawian should not be used as a rationale for unlawful discrimination against some of the most vulnerable in society. Instead the values of the society should be developed so that they align with the Constitution. This would empower a society that affords all people inherent human dignity, privacy, self-determination, and that recognises that all of us are different. We need to develop a society that practices tolerance and respect towards all people regardless of their religion, social status, place of origin or sexual preference.