By Alan Msosa
In recent years growing global advocacy calling for the repeal of anti-gay laws has faced fierce resistance especially in Africa. Proponents argue that decriminalisation of same-sex acts is necessary to end discrimination and facilitate protection of LGBTIQ persons’ human rights.
Same-sex sexual acts are illegal in 74 countries globally, that is 39% of United Nations’ member states. 93% of Commonwealth citizens live in jurisdictions where same-sex acts are a criminal offence. In Africa, such acts are criminal in 34 states, or approximately 62% of African Union member states.
In Malawi, same sex acts are criminalised under sections 137A, 153, 156 of the penal code on unnatural offences, indecent practices between males, and indecent practices between women respectively. In addition, the Marriages, Divorce and Family Relations Act makes it illegal to claim a gender identity other than that assigned at birth.
However, Malawi’s constitution, which is the supreme law of the land – to the effect that any other laws contrary to it are invalid – guarantees equal protection of human rights for all. Malawi’s regional and international human rights obligations also require equality of human rights protection. However, LGBTIQ Malawians have reported encounters of social stigma, discrimination, violence, and other human rights violations.
Recent research has found that over 90% of Malawians are opposed to homosexuality, and there is an ongoing heated public debate in Malawi on whether LGBTIQ persons deserve human rights protection. This debate emerged in the public sphere in 2009 when Steven Monjeza and Tiwonge Chimbalanga, two Malawians who were born male, performed a traditional wedding ceremony in Blantyre city. The majority of Malawians consider homosexuality to be ‘unMalawian’ and alien to their cultural and religious values.
Popular opinion in Malawi includes a perception that LGBTIQ persons are ‘homosexual rapists and paedophiles,’ from whom society must be protected through anti-gay laws. A distinction is not made between being a LGBTIQ person (and engaging in consensual activity), and non-consensual acts that happen to be same-sex, such as homosexual rape.
Homosexuality is locally translated in Chichewa, Malawi’s lingua franca, as ‘mathanyula. Mathanyula literally meaning anal sex between males. To most Malawians, mathanyula is associated with homosexual rape or defilement. Human rights in Chichewa is translated as ufulu or ufulu wachibadwidwe. Ufulu wa mathanyula can be translated as freedom to exercise homosexuality. Accordingly, if the populations’ understating of homosexuality – reinforced by the use of language – includes homosexual rape or defilement, such ufulu (i.e. the freedom to exercise homosexuality) may be popularly understood as including a freedom to rape or defile.
Connecting homosexuality to rape or defilement is no coincidence. Local media reports are saturated with cases of homosexual rape or defilement. Except for the case of Monjeza and Chimbalanga, all convictions to-date under sections 153 and 156 of the penal code have concerned non-consensual same-sex acts. As such popular discourse in Malawi finds it difficult to accept that people of the same sex can engage in consensual sexual relations. In this context, efforts to repeal anti-gay laws are viewed removing recourse to justice for victims of rape.
The Malawi Law Society has previously cautioned against total decriminalisation of anti-gay provisions of the Malawi Penal Code because they are the only provisions under which non-consensual same-sex acts are criminalized, whether with an adult or a minor. Even if Malawians were to become liberal on culture or religion, calls for summary decriminalisation will not sell for Malawians in the absence of an alternative with respect to the prosecution of non-consensual acts. It is however important to note that in recent years Malawi has made some progress in terms of recognizing the need to protect human rights for LGBTIQ persons. For example, at its second review before the United Nations Universal Periodic Review in 2015, Malawi unprecedentedly conceded to protect LGBTIQ persons from violence and guarantee their effective access to HIV services. However, it continues to reject all calls to repeal anti-gay laws.
It is (hopefully) inevitable that Malawi will eventually decriminalise consensual adult same-sex acts to comply with its constitutional and international human rights obligations. It must however seek to enact legislation explicitly criminalising rape or defilement, same-sex or otherwise.
Future calls repeal of anti-gay laws in Malawi must offer alternatives. In the same light, the international community must pay attention to this nuance when supporting local advocacy in order to pre-empt negative perceptions about ‘donor’ agenda.
Disclaimer: The views expressed herein are the author(s) alone.
Alan Msosa is a PhD Candidate at the University of Essex Human Rights Centre. He is also a Research Affiliate at the University of Bergen Centre on Law and Social Transformation. You can support his PhD research by donating on his fundraising page.