MALAWI: GAY COUPLE LAWYER MITIGATES FOR NON-CUSTODIAL SENTENCE

Salc : Staff Writer

By NYASA TIMES

 

Lawyer of the gay couple, Steven Monjeza, 26 and Tiwonge Chimbalanga, 20 convicted for homosexuality, has asked the Blantyre Magistrates Court to mete a non-custodial sentence mitigating the two men were first offenders and their crimes did not victimise anybody.

Mauya Msuku said in mitigation after Magistrate Nyakwawa Usiwa Usiwa pronounced a ‘guilty’ verdict for the two same-sex lovers.

“Unlike in a rape case, there was no complainant or victim in this case. In rape cases women’s safety is threatened but here are two consenting adults doing their thing in private.

“Nobody will be threatened or offended if they are released to the society,” the lawyer submitted to the court.

Magistrate Usiwa Usiwa will sentence the convicted couple on Thursday in which the face 14 years’ labour as prayed by police prosecutor Barbara Mchenga.

Meanwhile, London-based human rights campaigner Peter Tatchell, who has been supporting and advocating for the men since their arrest last year said the verdict by the magistrate was “outrageous”.

“This is an outrageous verdict. While Steven and Tiwonge freely confirmed their love for each other, there was no credible evidence that they had committed any illegal homosexual acts,” Tatchell told the Nyasa Times.

“The law under which they were convicted is a discriminatory law that only applies to same-sex relations. It is unconstitutional. Article 20 of Malawi’s constitution guarantees equality and non-discrimination. The law in Malawi is not supposed to discriminate,” Tatchell added.

“Malawi’s anti-gay laws were not devised by Malawians. They were devised in London in the 19th century and imposed on the people of Malawi by the British colonists and their army of occupation.

“Before the British came and conquered Malawi, there were no laws against homosexuality. These laws are a foreign imposition. They are not African laws.

“I expect both men will now appeal against the verdict and against any sentence, that is handed down. Steven and Tiwonge’s best hope is that a higher court will overturn this unjust, cruel verdict. With so much hatred and violence in the world, it is bizarre that any court would criminalise two people for loving each other.

“The magistrate was biased from outset. He refused the two men bail, which is very unusual in cases of non-violent offences. In Malawi, bail is normal. It is often granted to robbers and violent criminals. Denying Steven and Tiwonge bail was an act of vindictiveness.

“I appeal to governments worldwide, especially the South African government, to condemn this harsh, bigoted judgement and to urge its reversal,” Tatchell said.

But in the ruling, Magistrate Usiwa Usiwa said he had found the evidence so “strong against the two men.”

Meanwhile, Amnesty International calls on the Malawian authorities to immediately and unconditionally release the convicted  couple.

“Being in a relationship should not be a crime. No one should be arrested and detained solely on the basis of their real or perceived sexual orientation or gender identity,” said Michelle Kagari, Deputy Africa Director at Amnesty International. “Their human rights, the rights to freedom from discrimination, of conscience, expression and privacy have been flagrantly violated.”

Criminalization of individuals on the basis of their sexual orientation or gender identity is banned under treaties ratified by Malawi, including the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights.

Malawi is legally bound by these treaties to respect and protect freedom of conscience, expression and the right to privacy, without discrimination on the grounds of real or perceived sexual orientation or gender identity.