Issues that Malawi Human Rights Commission must consider in its national inquiry on LGBT Rights

By Alan Msosa

It has been reported  that this July the Malawi Human Rights Commission (MHRC) will conduct a survey to establish the views of lesbian, gay, bisexual, and  transgender (LGBT) Malawians. This survey follows an instruction by the Ministry of Justice, issued in November 2016, for MHRC to hold a national public inquiry to seek peoples’ views about homosexuality in order to inform the government’s decision  to decriminalise or not anti-gay laws. According to MHRC Chairperson, Justin Dzonzi, a report of the survey will be submitted to the Ministry of Justice by the end of October. In this article, I discuss the importance of the survey and propose how MHRC can use the national inquiry to bridge the gap between opposing views in the debate about homosexuality in Malawi.

MHRC has a constitutional mandate to investigate violations of human rights, as established in the constitution or any other law. Protection of human rights on the grounds of sexual orientation and gender identity (SOGI) are an important issue for inquiry in Malawi because, contrary to the belief of most Malawians, constitutional and international human rights obligations require protection based on sexual orientation and gender identity. For example, Malawi is obliged to guarantee that anyone men who have sex with men can access sexual and reproductive health services (right to health) regardless of their sexual orientation and gender identity.

A number of issues must be considered for a successful survey and inquiry.

First, MHRC needs to focus on the correct human rights questions. The substantive human rights question facing Malawi is whether LGBT persons are equally entitled to human rights accorded by the constitution and international human rights treaties. Answering this question is necessary to assess whether anti-gay laws present any conflict. So far there has been unnecessary preoccupation on a rhetorical question of whether anyone has a right to homosexuality.

Second, MHRC must focus on addressing questions which are unanswered so far. Previous research has already indicated that over 90% of Malawians are opposed to homosexuality. The Malawi Government, through its National HIV and AIDS Policy, has already established that anti-gay laws are an obstacle to the realisation of various human rights. The survey must focus on establishing why Malawians prefer anti-gay laws that are in conflict with constitutional and international human rights order.

Third, the survey must exercise conceptual clarity to eliminate bias and misrepresentation about homosexuality or LGBT rights. Chichewa, Malawi’s lingua franca, does not have words that fully translate homosexuality, human rights or LGBT rights. Mathanyula, for example, is not a full translation of homosexuality. Its literal translation is anal sex between males. Although it has evolved over time, it falls short of describing the complex nature of being LGBT. Similarly, ufulu wa chibadwidwe does not fully translate human rights. MHRC needs to find consistent meanings in the local languages to be used in the survey. For example, the need for terminology that distinguishes between consensual and non-consensual same-sex acts is crucial in understanding the distinction between the homosexual conduct being contested (i.e. it is universally agreed that non-consensual same-sex conduct or same-sex conduct with minors ought to be criminal).

Fourth, MHRC needs to prove its own legitimacy to lead the survey by demonstrating competence and commitment to act as an independent stakeholder. In the past, MHRC has been perceived as a reluctant actor in the debate. Most notable was in 2013 when it failed to honour an invitation to join a High Court of Malawi case amicus curiae aimed at reviewing constitutionality of section 153(a) of the Penal code on unnatural offences.

Fifth, MHRC must ensure that the sample in the survey is inclusive. It is crucial to ensure that diverse views are considered. Importantly, LGBT persons and their representatives must not be left out as it is impossible to understand issues of sexual orientation and gender identity-related human rights without engaging with LGBT persons.

Sixth, perhaps most importantly, MHRC must consider the challenges presented by the timing of the survey. General elections will take place in 23 months, and political tensions are already escalating in the country. In my view, this survey is ideal during the first half of a presidential term. At this point in the electoral cycle, the ruling party is likely to reject any findings that risks it losing public popularity, no matter how well-reasoned the findings may be.

Finally, MHRC must consider the survey as one component in a broader inquiry.  The instruction from Ministry of Justice opened an opportunity for a broader dialogue with potential not only to seek answers to specific questions, but also to bridge the gap between opposing views on the issue. Closing this gap is critical for future policy and legal reforms.

In conclusion, MHRC has an important constitutional mandate to investigate violations of human rights in Malawi. This public inquiry provides an opportunity for a national dialogue to address local nuances that have divided the nation on the question of whether LGBT persons are equally entitled to human rights accorded by the constitution and international human rights law.

 


Alan Msosa is a Commonwealth scholar and 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.

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

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