LGBT rights in Malawi

Lesbian, gay, bisexual, and transgender (LGBT) persons in Malawi face legal challenges not experienced by non-LGBT residents.

LGBT rights in Malawi
StatusIllegal since 1891 (as British Central Africa Protectorate)[1]
PenaltyUp to 14 years imprisonment, with or without corporal punishment for men;
up to 5 years imprisonment for women (rarely enforced; suspending moratoruim legality disputed)
Gender identityNo
MilitaryNo
Discrimination protectionsNo
Family rights
Recognition of relationshipsNo recognition of same-sex unions
AdoptionNo

The Penal Code prohibits "carnal knowledge against the order of nature", attempts to commit "carnal knowledge against the order of nature", and acts of "gross indecency". However, in November 2012, President Joyce Banda suspended all laws that criminalized homosexuality. In July 2014, the Justice Minister announced that Malawi would no longer arrest people for same-sex sexual activity and review its anti-gay laws.[2][3]

In late December 2009, a trans woman, Tiwonge Chimbalanga, and a man, Steven Monjeza, were arrested after holding a traditional "engagement" party. On 18 May 2010, they were found guilty of having committed "unnatural offenses" and "indecent practices between males".[4][5][6] On 29 May 2010, then President Bingu wa Mutharika pardoned both individuals.[7]

Legality of same-sex sexual activity

Statutes

The Malawi Penal Code provides:

Section 137A. Indecent practices between females. Any female person who, whether in public or private, commits any act of gross indecency with another female person, or procures another female person to commit any act of gross indecency with her, or attempts to procure the commission of any such act by any female person with herself or with another female person, whether in public or private, shall be guilty of an offence and shall be liable to imprisonment for five years.[8][9]

Section 153. Unnatural offences. Any person who—

(a) has carnal knowledge of any person against the order of nature; or
* * * *
(c) permits a male person to have carnal knowledge of him or her against the order of nature,

shall be guilty of a felony and shall be liable to imprisonment for fourteen years, with or without corporal punishment.

Section 154. Attempt to commit unnatural offences. Any person who attempts to commit any of the offences specified in the last preceding section shall be guilty of a felony and shall be liable to imprisonment for seven years, with or without corporal punishment.

Section 156. Indecent practices between males. Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, shall be guilty of a felony and shall be liable to imprisonment for five years, with or without corporal punishment [under Section 28 of the Penal Code].

The news media reported in December 2011 that these statutes had been sent to the Malawi Law Commission (MLC) for review, quoting Ephraim Chiume, Malawi's justice minister.[10] However, a high-level delegation of legal experts appointed by the International Bar Association's Human Rights Institute found in January 2012 that the MLC had not, in fact, been asked specifically to review these statutes.[11]

On 18 May 2012, President Joyce Banda announced her intention to repeal the laws criminalizing same-sex sexual activity.[12][13] On 5 November, the Malawian government suspended all laws that criminalized homosexuality.[14] Attorney General and Minister of Justice Ralph Kasambara ordered police not to arrest LGBT individuals, pending a review from the National Assembly. Three days later, he reversed himself, saying, "There was no such announcement and there was no discussion on same-sex marriage."[15][16] The Malawi Law Society argued that it was unconstitutional for ministers to arbitrarily suspend any law and would set a dangerous precedent for the future.[17] Religious leaders were strongly against the suspension.[18]

In November 2013, the Malawi High Court announced its intention to review the constitutionality of the law by accepting an appeal.[19] The focus of the appeal is the case of three prisoners Amon Champyuni, Mathews Bello and Musa Chiwisi, who were convicted in 2011 and are serving sentences ranging from 10 to 14 years for practicing homosexuality. In January 2014, the court's deliberations on the issue were delayed pending a determination by the Supreme Court on whether the High Court can proceed to review an issue of constitutionality.[20][21] As of 2019, there have been no ruling.

In September 2016, President Peter Mutharika said that he "wants gay rights protected" and proposed a referendum on decriminalising homosexuality and legalising same-sex marriage.[22][23] However, in October 2015, a State House spokesperson has said the president's comments are his own personal opinion on the subject and not a policy.[24]

On 9 February 2016, the High Court in Mzuzu has ordered the Malawi Police Service, the Director of Public Prosecutions to continue arresting and prosecuting gays and lesbians who commit homosexual offences in Malawi. High Court Judge Dingiswayo Madise granted an injunction requested by anti-gay pastors seeking an end to the government's moratorium on arrests under the country's anti-homosexuality law during court deliberations on that law's constitutionality. The prosecutions will continue pending a judicial review of the decisions, conduct and abdication of legal and constitutional duty by the Minister of Justice and Constitutional Affairs, the Director of Public Prosecutions and the Malawi Police Service.[25][26]

Malawi Constitution

The Malawi Constitution does not specifically prohibit discrimination on the grounds of sexual orientation. Human rights lawyer Chrispine Sibande, however, argued in 2010 that discrimination is prohibited under Section 20 of the constitution,[27] which provides that "all persons are, under any law, guaranteed equal and effective protection against discrimination on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, property, birth or other status."[28] There has no been no official legal ruling to this effect.

Recognition of same-sex unions

On 17 April 2015, The Marriage, Divorce and Family Relations Law came into force and banned all same-sex marriages and unions. While the law was praised for raising the minimum age of heterosexual marriages from 16 to 18, it was at the same time condemned for the exclusion of homosexual couples and for its language stating that one's gender is assigned at birth.[29] The new law does not allow people who have undergone gender reassignment surgery to marry someone of that person's prior gender and also draws comparisons of gay sex to rape and sexual harassment.[30]

Living conditions

In July 2005, Reverend Dr. Nick Henderson was elected by the Lake Malawi diocese to serve as its bishop, but conservative members challenged the election. In December, the Anglican Church of Central Africa (ACCA) overturned the election. According to Archbishop Bernard Malango, who led the ACCA, "He has actively demonstrated that he was not of sound faith—that's what the Court of Confirmation decided." The bishops concluded that Henderson's involvement with the Modern Church, which supported LGBT rights, made him "unsuitable".[31] A four-year struggle by laity and priests to overturn the ACCA's decision then ensued. The matter was eventually settled when Henderson asked his supporters to agree to the election of the Venerable Francis Kaulanda as bishop. Kaulanda had been one of Henderson's sabbatical study priests.

In September 2009, Mary Shawa, secretary for nutrition, HIV, and AIDS in the president's office, argued that Malawi must give gay people access to HIV and AIDS services. She said, "There is a need to incorporate a human rights approach in the delivery of HIV and AIDS services to such risk groups like men who have sexual intercourse with men if we have to fight AIDS."[32]

In February 2010, Peter Sawali was arrested for putting up posters on a busy road in Blantyre that read "Gay rights are human rights". He was charged with conduct likely to cause a breach of the peace.[33] He was subsequently convicted and sentenced to clean the premises of Blantyre Magistrates Court for 60 days.[34]

In April 2010, President Bingu wa Mutharika condemned acts of homosexuality. He said, "Malawians are even aping cultures they do not understand. They are saying a man should marry a fellow man. This is evil and bad before the eyes of God. There are certain things we Malawians just do not do."[35]

In July 2011, Undule Mwakasungula, the chairperson of the Human Rights Consultative Committee, and Gift Trapence, executive director of the Centre for Development of People, reportedly went into hiding after being threatened with arrest for treason. President Mutharika was quoted as saying, "I will ... hunt you in your homes. You will not hide, I will smoke you out, muziwanso. You should go back to your fathers and mothers from the West, who have sent you."[36] Two months earlier, George Chaponda, Malawi's Justice and Constitutional Affairs Minister, claimed that recent withdrawals of foreign aid by various countries were the fault of Mwakasungula and Trapence. He said, "The country is suffering because of the conduct of some leaders of the civil society. Those people are not patriotic. Some donors have withdrawn their aid and everybody is suffering."[37]

The U.S. Department of State's 2011 human rights report found that,

An environment conducive to discrimination based on sexual orientation was created and maintained by senior government officials. On World Tourism Day in September [2011], the tourism minister [Daniel Liwimbi] said it was not proper for citizens to engage in same-sex sexual activity as "very un-Malawian." The mistaken notion that western donor countries were withholding financial aid unless the country permits same sex marriages enhanced a homophobic environment. In October[,] the Malawi Council of Churches declared that the country needed aid, and millions of innocent citizens should not be penalized because same-sex sexual activity was outlawed.[38]

In February 2014, the Muslim Association of Malawi (MAM) called for gay people to be condemned to death, saying "the offenders need to be handed death penalty as a way of making sure that the issue is curbed".[39]

In January 2016, spokesperson for the People's Party Ken Msonda posted on Facebook several statements that Malawian gays "are worse than dogs", that gays and lesbians are "sons and daughters of the devil" and that they should be killed. The Malawi Law Society criticised these statements and filed charges against Msonda in court, while also asking police and the Malawi Human Rights Commission to investigate Msonda's statements as hate speech. The case against Msonda got under way, pushed by the law society, the Centre for Human Rights and Rehabilitation (CHRR) and LGBT rights advocates at the Centre for Peoples Development (CEDEP). Several other civil society organizations expressed interest in joining the case, including Youth and Children Rights Shield (YOCRIS), the Forum for National Development (FND), and the Counseling for the Adolescent Youth Organization (CAYO). However, the case against Msonda was taken over and then discontinued by Kachale, Malawi's director of public prosecution, who intervened on 21 January.[40][41]

In January 2016, a gay Malawian man, Eric Sambisa, from Blantyre in southern Malawi. acknowledged to an interviewer that he is gay and said that he is tired of being treated as a second-class citizen by what he called "the homophobic Malawian government and homophobic Malawian society" by saying "Kill us or give us our rights". He was briefly detained by police after his story was published and went briefly into hiding during that time.[42][43]

An October 2018 report by Human Rights Watch found that members of the LGBT community are vulnerable to arbitrary arrest, physical violence and discrimination. The report recommends that same-sex consensual activity should be decriminalised in order to ensure that members of the LGBT community are better protected. [44][45]

Criminal conviction and subsequent pardon of Malawian couple

In late December 2009, a trans woman, Tiwonge Chimbalanga, and a man, Steven Monjeza, were arrested after holding a traditional "chinkhoswe" (engagement ceremony) and then jailed separately in Blantyre.[4] Magistrate Nyakwawa Usiwausiwa subsequently denied bail, allegedly for their own protection. "The public out there is angry with them."[46]

In a ruling made public on 22 February 2010, High Court Chief Justice Lovemore G. Munlo denied the defendants' motion for a Constitutional Court to be convened to rule on the constitutionality of Sections 153 and 156 of the Penal Code. He wrote, "From the totality of the documents that are before me, I have come to the conclusion that the criminal proceedings that are before the Chief Resident Magistrate Court do not expressly and substantially relate to or concern the interpretation or application of the Constitution."[47]

On 18 May 2010, the defendants were found guilty of having committed "unnatural offenses" and "indecent practices between males" under the Malawi Penal Code.[5][6] Magistrate Usiwausiwa imposed the maximum penalty of 14 years in prison with hard labour. He said, "I will give you a scaring sentence so that the public be protected from people like you so that we are not tempted to emulate this horrendous example. We are sitting here to represent the Malawi society, which I do not believe is ready at this point in time to see its sons getting married to other sons or conducting engagement ceremonies."[48]

The trial and sentences were condemned by regional human rights organizations including AIDS and Rights Alliance for Southern Africa, the Southern Africa Litigation Centre, the Centre for the Development of People, and the Centre for Human Rights and Rehabilitation. In addition, international human rights organizations such as Amnesty International and the International Gay and Lesbian Human Rights Commission reacted with condemnation, as did donor entities and governments such as the United States, the United Kingdom, Germany, Norway, the African Development Bank, the European Union, and the World Bank.[49]

However, the Malawi Council of Churches (a grouping of up to 22 Protestant churches) advised the Malawi government to maintain the laws that criminalize same-sex sexual acts and asked international organizations to "respect Malawi's cultural and religious values and refrain from using aid as a means of forcing the country to legalise sinful acts like homosexuality in the name of human rights".[49]

The International Women's Health Coalition and Gender Dynamix identified the imprisonment of Chimbalanga, in particular, as an issue of transphobia. The groups criticized international reporting of the trial and the sentencing of Chimbalanga because most media outlets did not report Chimbalanga's gender identity in their coverage of the issue of marriage equality for same-sex couples.[50][51]

On 29 May 2010, then President Bingu wa Mutharika pardoned both individuals during a visit by Ban Ki-Moon, the United Nations Secretary General.[7]

A high-level delegation of legal experts appointed by the International Bar Association's Human Rights Institute conducted a fact-finding mission in Malawi in January 2012. Some government representatives told the delegation that Chimbalanga and Monjeza were not, in fact, gay and had been funded by international organizations. The delegation, however, was unable to corroborate this assertion.[11]

Chimbalanga eventually sought and was granted refugee status in South Africa.[52] Monjeza married another woman and then left her, accusing her of trying to access his money. He became a petty criminal, spent time in jail and was reported to have died of unknown causes in July 2012.[53]

Subsequent arrests

On 7 December 2015, two men Cuthbert Kulemela, 19, and Kelvin Gonani, 39 were arrested while having sex for alleged homosexual activity. However, on 15 December 2015, the government of Malawi announced that charges have been dropped against them. In a statement, Justice Minister Samuel Tembenu reaffirmed Malawi's moratorium on arrests and prosecutions for alleged violations of the country's anti-gay law.[54][55][56][57]

In April 2018, police arrested a man named Limbane Sibande in Mzuzu on suspicion of being gay and charged him with indecency. The arrest was reportedly made for an alleged violation of Section 156 of the Penal Code (indecent practices between males) rather than under the country's main anti-gay law, Section 153 (carnal knowledge of any person against the order of nature).[58][59]

International pressure on Malawi to legalize same-sex sexual activities

Provisional concluding observations of the United Nations Human Rights Committee

Malawi became a party to the International Covenant on Civil and Political Rights on 22 December 1993.[60] Under Article 40 of the Covenant,[61] Malawi was required to submit its initial report by 21 March 1995. Malawi failed to honour its reporting obligations for more than 17 years, despite numerous reminders. The United Nations Human Rights Committee (UNHRC) in June 2012 made "provisional concluding observations" in the absence of Malawi's report.[62]

The Committee is concerned about allegations regarding reported cases of violence and discrimination against people engaging in same-sex relationships in ...[Malawi], as well as allegations of incitement to violence against them by some public officials and authorities, despite section 20 of the Constitution, which guarantees equality of persons and prohibits discrimination. The Committee is also concerned about sections 153 and 156 of the Penal Code, which criminalize homosexuality, and about the new amendment to the Penal Code, section 137A, which also criminalizes same-sex relationships between women (arts. 2, 3 and 26). [Malawi] ... should amend its Penal Code to decriminalize homosexuality between adults of both sexes, and conduct awareness-raising campaigns to educate the population on this issue. [Malawi] ... should also take appropriate steps to protect persons engaged in same-sex consensual relationships against discrimination and violence on the basis of their sexual orientation, and ensure that public officials and public authorities refrain from using language that may encourage hatred and violence against them. In this regard, [Malawi] ... should prosecute persons allegedly responsible for such acts of discrimination and violence, and punish those who are convicted.

In an oral response provided to the UNHRC, the Malawi delegation said,[62]

The Government of Malawi has referred to the Law Commission for review of all legislation referred to above. The review process will be thorough and consultative. The Malawi Law Commission is an independent body and its recommendations are seriously considered by the Government of Malawi.

Malawi's initial report

In its long-overdue initial report to the UNHRC dated 13 July 2012, Malawi stated,

In terms of discrimination based on sexual orientation, the vast majority of society has not accepted homosexuality and homosexuality is not practiced in the open. It is therefore very unlikely that cases of discrimination and violence based on sexual orientation would be reported. ... The State has prosecuted individuals ... for engaging in homosexual acts. For example, in the highly publicized case of the Republic v. Tiwonge Chimbalanga and Steven Monjeza (Criminal Case number 359 of 2009 Magistrates Court) two male individuals were tried and convicted of the offence of indecent practices between males, however they were later pardoned and released. ... Despite recent debate over homosexuality in Malawi, the general consensus still remains, that is, the majority of Malawians do not support homosexuality. In order to take the minority views into account, the relevant laws that criminalize such practices have since been referred to the Law Commission for a comprehensive review.[63]

2010–11 Universal Periodic Review

The United Nations Human Rights Committee (UNHRC) in March 2011 completed a Universal Periodic Review of the human rights situation in Malawi.[64]

Recommendations made by western nations

During the review, Sweden,

expressed concerns at the existing discrimination based on sexual orientation. Sweden recalled Malawi's ratification of the International Covenant on Civil and Political Rights as well as the basic principle of non-discrimination, which also underpinned the African Charter on Human and Peoples' Rights and the Universal Declaration of Human Rights.[65]:page: 8 ¶ 57

Sweden recommended that Malawi,

Fullfil its obligations under international human rights law and review its national legislation, as a matter of urgency, to decriminalize same-sex relationships and prohibit discrimination on any grounds, including sexual orientation.[65]:page: 21 ¶ 105.20

Mexico recommended that Malawi,

Completely overhaul the legal system to ensure the compliance of the Constitution and all other domestic legislation with international human rights obligations and standards and, in this regard, amend and/or derogate all legal provisions, including customary law, which result in discrimination, especially on the basis of sexual orientation.[65]:page: 20 ¶ 105.1

France recommended that Malawi,

Put in place a moratorium on convictions for same-sex relationships and, over time, decriminalize homosexuality in order to fully apply the principle of equality and non-discrimination among all persons.[65]:page: 21 ¶ 105.17

Canada,[65]:page: 21 ¶ 105.18 Germany,[65]:page: 21 ¶ 105.19 Australia,[65]:page: 21 ¶ 105.21 the United Kingdom,[65]:page: 21 ¶ 105.22 Italy,[65]:page: 21 ¶ 105.23 Austria,[65]:page: 21 ¶ 105.24 Ireland,[65]:page: 21 ¶ 105.29 and Luxembourg[65]:page: 21 ¶ 105.28 generally recommended that Malawi reform its Penal Code to end discrimination, hostility, and violence against people based on their sexual orientation or gender identity.

The United States,

commended Malawi for progress in aligning its national legislation with some international human rights conventions, but was concerned by the criminalization of homosexual activity. It noted that it viewed the decriminalization of homosexuality as integral to the continued protection of universal human rights in Malawi, and crucial to the urgent need to fight the spread of HIV/AIDS.[65]:page: 10 ¶ 68

The United States recommended that Malawi, "Decriminalize homosexual activity."[65]:page: 21 ¶ 105.25

Spain recommended that Malawi,

Derogate legislation that criminalizes same-sex activities between consenting adults and adopt measures to combat incitement to hatred for reasons of sexual orientation or gender identity, and allow the registration of [non-governmental organizations] ... that defend matters of sexual orientation and gender identity without discrimination.[65]:page: 21 ¶ 105.26

Switzerland recommended that Malawi,

Review domestic legislation with a view to decriminalizing homosexual relations and prohibiting all forms of discrimination, in compliance with Malawi's international commitments. Release immediately and unconditionally all persons currently deprived of their liberty only for this reason.[65]:page: 21 ¶ 105.27

Norway recommended that Malawi,

On the question of the rights of sexual minorities, review laws in order to ensure that legislation is brought into line with international human rights norms.[65]:page: 22 ¶ 105.39

Malawi's response to the recommendations

Malawi did not support any of the preceding recommendations.[65]:page: 19 ¶ 105

Malawi stated that "it had no plans to legalize homosexuality. The wishes of the people of Malawi in this regard should be respected. It noted that there was no international consensus on gay rights or on the right of gay persons to marry. Malawi should not be unduly singled out and unnecessarily pressured to legalize homosexuality. Malawi recalled that a resolution on gay rights considered for adoption by the United Nations in 2008 had been defeated."[65]:page: 6 ¶ 39

Malawi stated that "there was no homophobia or incitement against gay people. The law simply outlawed unnatural acts, which could even be committed in a sexual relationship between a man and a woman."[65]:page:6 ¶ 40

Regarding gay marriage, Malawi said "it was a process, even in countries that had made recommendations in that regard. Malawi's Law Commission was working on laws that needed to be updated."[65]:page: 11 ¶ 76 Also, "Malawi emphasized that it had no law criminalizing such marriage, but a law proscribing unnatural offences. It noted Malawi's historical background. Malawi had been a British protectorate, and when it had gained its independence, it had adopted all the laws then in force, including that regarding unnatural acts. In 1994, Malawi had adopted a new Constitution, under which a Law Commission had been established that was mandated with the task of reviewing all laws to ensure that they were consistent with the Constitution."[65]:page: 9 ¶ 59

On 4 January 2017, thousands of people across the country's 28 districts participated in protests led by the Episcopal Conference of Malawi and the Evangelical Association of Malawi against legalizing homosexuality as well as abortion.[66]

Summary table
Same-sex sexual activity legal / (Penalty: Up to 14 years imprisonment for men, up to 5 years imprisonment for women; rarely enforced, suspension from usage since 2012 disputed)
Equal age of consent (Penalty: Up to 14 years imprisonment for men, up to 5 years imprisonment for women; rarely enforced, suspension from usage since 2012 disputed)
Anti-discrimination laws in employment only
Anti-discrimination laws in the provision of goods and services
Anti-discrimination laws in all other areas (Incl. indirect discrimination, hate speech)
Same-sex marriages
Recognition of same-sex couples
Step-child adoption by same-sex couples
Joint adoption by same-sex couples
Gays and lesbians allowed to serve openly in the military
Right to change legal gender Laws against men having long hair.
Access to IVF for lesbians
Commercial surrogacy for gay male couples
MSMs allowed to donate blood

See also

References
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