The Devil in the Detail: The debate on human rights, sexual orientation and gender identity in Malawi

By Alan Msosa

Introduction

The current debate on homosexuality in Malawi has exposed the government’s failure to come up with a position on whether LGBT people deserve genuine and effective human rights protection. As a result, Malawi is slowly losing gains achieved so far in its efforts to facilitate protection of LGBT rights. Unless the government comes up with a firm and consistent position, prospects for moving forward are under threat.

Contradicting Government Positions

In May 2015 Malawi’s performance in relation to the promotion and protection of human rights was reviewed under the Universal Periodic Review (UPR) mechanism. The UPR results in a list of recommendations intended to assist the State in its efforts to comply with its human rights obligations. However, Malawi rejected all 17 recommendations directed towards the repeal of the Penal Code’s criminalization of same-sex sexual relations. Malawi has consistently rejected UPR recommendations to decriminalise same-sex conduct on the basis that legalizing homosexuality is against the wishes of Malawians. However, it unprecedentedly accepted one recommendation to take effective measures to protect LGBT people from violence and prosecute perpetrators of such violence.

In December 2015 the Minister of Justice reiterated a moratorium on implementation of anti-gay laws pending legal review. This announcement followed police arrest of Malawians who were charged for ‘engaging in unnatural acts’. The announcement followed condemnation by local human rights organisations and the international community. During the announcement, according to press reports, the Minister of Justice said that Malawi had to respect international treaties to which it was signatory. The moratorium has been in place since 2012.

In January a prominent politician Ken Msonda posted on his Facebook page calling call for the killing of all homosexuals, citing that ‘the devil has no rights’. Two local civil society organisations lodged a criminal lawsuit against the politician on charges of inciting violence. However, the Director of Public Prosecution (DPP) took over the prosecution using powers from the Criminal Procedure and Evidence Code. Soon afterwards the charges were dropped unconditionally on claims that the prosecuting lawyers did not follow procedures as they  had bypassed the DPP’s office at the beginning of the case. Justifying dropping of the charges, the Solicitor General announced that Malawi was not ready to change its laws on homosexuality.

In another twist of events, the High Court received an application from religious leaders seeking declaration that the gay-arrests moratorium was unconstitutional. The courts issued an injunction against the moratorium and ordered resumption of gay arrests. The Malawi government through the Attorney General (AG) challenged the injunction. Since then, the High Court has referred the case to the Chief Justice for certification for a constitutional case.

This lack of consistency by the state is fueled by conflicts in law, policy and public attitudes. The Republican Constitution which is the supreme law of the land guarantees human rights protection for all people without discrimination. However, this law conflicts with the Penal Code which criminalises same-sex relationships. Malawi’s National AIDS Policy recognises that LGBT people face discrimination and that law review is necessary, and recent national research has found that nearly 90% of Malawians are opposed to having a homosexual neighbour. In September 2015 the president hinted that he would call for a national referendum for the nation to decide on repeal of anti-gay laws.

Conclusion

The failure by the state to come up with a position on whether to decriminalize same-sex relations and guarantee human rights for LGBT people highlight the tension between the state’s obligation to protect human rights for LGBT people, and popular opinion against homosexuality. In the case of Malawi, political popularity has been chosen over the obligation to guarantee human rights protection for all Malawians, including LGBT people. The state needs to demonstrate leadership by advising the nation about the indispensability of its constitutional human rights obligations even on issues of sexual orientation and gender identity.


Alan Msosa is a Malawian Commonwealth Scholar funded by the UK government. He is currently studying for PhD in Human Rights at the University of Essex Human Rights Centre here in the UK. His research analyses social and institutional factors influencing the lack of human rights protection for LGBT people in Malawi. He has done field research in Malawi where he interviewed 44 LGBT Malawians to document their life stories. At the University of Essex he is a part time as a Research Assistant at the Human Rights Clinic, and a part time Graduate Researcher at the Centre for Intimate and Sexual Citizenship. He is also a member of the Essex LGBT Alliance which promotes LGBT inclusion among staff at the University.

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

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