The Devil in the Detail – ‘Hidden’ Homophobia in Malawi’s new Marriage Law

By  Alan Msosa. Alan is a Commonwealth Scholar, studying for a PhD in Human Right at the University of Essex. He is conducting research on the issue of ‘Human Rights and same-sex intimacies in Malawi’.

On 12 February the Malawi parliament passed the Marriages, Divorce and Family Relations Bill into law.

The new law received widespread acclamation and applause as a historical step and a victory for women and girls. For example, the United Nations in Malawi unreservedly congratulated the Cabinet, government officials, Members of Parliament, and national and international organisations for the historical moment where Malawi decided to address critical issues that affect the lives of Malawians.

However, although the new law will bring significant progress in promoting rights and welfare for women and girls, its language rejects the legitimacy of any same-sex identities and relationships in the country (hereinafter referred to as same-sex people, to avoid using the western term of ‘homosexuals’ or ‘gay’, which has been discussed to be insufficient to define the diversity of same-sex sexualities in Africa and indeed Malawi). The new law’s rejection of same-sex people may be demonstrated using the following examples:

  • The memorandum from parliament on the new law states that the bill was based on the recommendations of a special law commission. According to the memo, the special law commission’s recommendations included:
    • Affirming Malawi laws that presuppose that Malawian marriages should be heterosexual in nature.
    • Restricting the lifetime sex (male/female) of a person to that which was assigned at birth and by implication resolving to reject the possibility that the sex (male/female) or gender of a person may change in the course of a person’s life.
    • By implication, the recommendations suggest that same-sex identities and relationships are not legitimate and should therefore be rejected.
  •  Section 64(b) of the new law, which lists grounds for deciding that a marriage has broken down, includes a ground of ‘committing crimes’ under Section 153 of the Penal Code. This section provides that anyone who commits ‘unnatural’’ offences by having carnal knowledge of any person ‘against the order of nature, or who permits anyone to have carnal knowledge of him or her-self, shall be guilty and liable to imprisonment of fourteen years, with or without corporal punishment. The penal code sections that criminalise same-sex identities and practices derive from an old British law that was initially exported to India and then spread to the rest of British territory during British colonialism. This section also includes the crime of rape as grounds for a breakdown of a marriage. By putting carnal and knowledge side by side, this section poses a danger of creating a false impression that there is correlation between carnal knowledge and rape.
  • By defining marriage as a union between people of the opposite sex, the new law fails to acknowledge the evidence that presently there are some Malawian people with same-sex identities and relationships. Although the ultimate aim of those people may not be marriage, such a deliberate and intentional definition of marriage suggests rejection the fact that same-sex people also have same-sex relations.

Malawi has in the past rejected Universal Periodic Review recommendations against discrimination on the basis of sexual orientation. Recently a cabinet minister reaffirmed that those who engage in ‘homosexuality’ shall ‘face the law’.

Homophobia is the hatred or fear of ‘homosexuals’, sometimes leading to acts of violence of hostility. Hatred and fear of same-sex people is widespread in daily life in Malawi’s communities. It is therefore little surprising that the members of parliament who passed the bill and the society in general are not outraged by the language in this law. Despite the lack of domestic outrage, however, this law is significant and should be of concern to all human rights defenders: it is the first time that legal persecution of same-sex people has been explicitly stated in any other law apart from the penal code. As such, it raises prospects for future laws to include similar provision. The unreserved applause of for the new law, and the silence from stakeholders who may wish to make reservation, is nothing short of alarming.

The absence of reservations on the new law in Malawi is a reflection of widespread homophobia, based on the religious and cultural beliefs that socially constructs heterosexuality as compulsory and homosexuality as a disorder against nature that should be eliminated. It will therefore be unsurprising that the President is likely to assent to the law with ease.

The major reason for rejecting ‘homosexuality’ in Malawi is the common belief that Africa was a homosexual-free continent until corrupted by the West. However, research indicates that a homosexual-free Africa is a myth. There have always been ‘homosexual Malawians’’ in the past just as there are today. Research has also found that same-sex Malawians face unspeakable stigma and discrimination in their daily lives, including instances of blackmail, imprisonment, and state and societal persecution.

Currently a number of civil society initiatives within Malawi work to promote the human rights and welfare of same-sex people in Malawi; interestingly some of such initiatives are supported by the government, most notably the support by the National AIDS Commission to the Centre for the Development of the People (CEDEP) in their projects aimed at providing HIV and AIDS awareness training for men who have sex with men. In light of this work, the government’s decision to pass this new law – and the silence from within civil society –raises important conceptual and practical questions worthy of investigation.

First, what are the key societal factors that drive the legal and policy framework regarding same-sex peoples’ human rights in Malawi? Second, is the legal and policy framework that affects same-sex people in Malawi justified, especially in the context of international (and/or regional) and constitutional human rights framework? Thirdly what institutional mechanisms can provide opportunity for protection and promotion of the affected groups (an inquiry into best practices and lessons-learnt)? Lastly, which interdisciplinary theoretical framework would be useful for an inquiry into the above questions?

Sociological theories that articulate how society ‘dictates’ which sexualities to permit or reject, such as the social construction theory by Jeffrey Weeks and the symbolic interaction theory by Ken Plummer, becomes important in the inquiry of why some societies embrace homophobia and human rights violations that result from it. Similarly, such sociological theories may give insight into why countries like Malawi are ready to pass laws which deliberately intend to violate rights of same-sex people.

Disclaimer: The views expressed herein are the author(s) alone.

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