Thinking Beyond a Moratorium on Prosecution of Same-Sex Sexual Acts in Malawi

Salc : Staff Writer

In 2012, we saw a shift in the policy of the Executive branch of the Malawian Government towards sexual minorities. It committed itself to upholding regional, international and fundamental human rights obligations. In line with this, former President Joyce Banda imposed a moratorium on all arrests and prosecutions of consensual same-sex practices under the Malawian Penal Code. Section 153 of the Penal Code provides that any person who has (a) canal knowledge of any person against the order of nature; or… (c) permits a male person to have carnal knowledge of him or her against the order of nature shall be guilty of a felony.

Early in January 2016, the moratorium was reaffirmed in a statement released by the Minister of Justice. He confirmed the Executive’s commitment to the advancement of human rights, as enshrined in Constitution of Malawi. He also declared that there would be a review of the Penal Code’s criminalisation of same-sex practices.  He further, stated that:

“The Constitution of Malawi represents the collective wisdom and values of the people of Malawi…Malawi as a member of the international community is also committed to adhere to universally accepted human right standards…Government has also consistently invited civil society to carry out intensive sensitization campaigns on gay rights, as the concept is alien to Malawian culture since the previous two attempts the change the law met with stiff resistance from the general public…”

The Executive’s reaffirmation of its commitment to the protection of the human rights of sexual minorities, and in particular consensual same-sex practices, arose due to the arrest of two men suspected by members of the public of engaging in same-sex practices. Reportedly, members of a neighbourhood group forced their way into the couple’s home, ransacking it. Police authorities then forced the men to undergo medical tests for HIV and other sexually transmitted diseases, before finally charging them with sodomy. Charges were subsequently withdrawn against the two men after an intervention by the Minister of Justice, due to his commitment to imposing the moratorium.

In February 2016, notwithstanding the efforts by the Executive, the realisation of fundamental rights for sexual minorities in Malawi was thwarted, by a group of religious leaders who obtained an interim order to stay the operation of the government moratorium. The interim order has resulted in police officials being given the go-ahead to arrest persons suspected of engaging in same-sex practices. This will continue to be the case until the courts determine the lawfulness or not of the moratorium issued by the Executive. It is argued that the moratorium is unlawful as it was not enacted through a declaration by Parliament.

Realistically, it will take the Judiciary several months to reach a decision about the lawfulness of the moratorium. Unfortunately, in the meantime, unless the government puts measures in place to ensure the protection of sexual minorities, the suspension of the moratorium has left many gay and lesbian persons vulnerable to discrimination. Moreover, they are at risk of being arrested and prosecuted under the suspicion of engaging in consensual same-sex activities under the Malawian Penal Code.

The Executive should be commended for its efforts to impose a moratorium on the enforcement of the Penal Code provision: their position not only advances minority rights in Malawi, but sets an example for other African states. Unfortunately, taking into account the Executive’s constitutional mandate, the government’s efforts have not been sufficient.

It appears that the Executive, with respect, is playing both sides, in an attempt to appease all parties. On the one hand, it has confirmed its commitment to universally accepted human rights, such as the rights to privacy, dignity and non-discrimination against sexual minorities, whilst on the other, claiming to uphold the “values of the people of Malawi”. In the context of Malawian society, this approach is contradictory. The Executive is well aware that the many Malawians are uninformed and intolerant on the issue of sexual diversity and find same-sex relations “culturally unacceptable….and against the will of God” and that they openly discriminate against sexual minorities. On a daily basis, sexual minorities experience intolerance and face social stigma. The Centre for Human Rights & Rehabilitation (CHRR) Executive Director reported that “…instead of treating them (homosexuals) like any other patients, some medical personnel make fun of homosexuals, some refuse to treat them…” This intolerance towards sexual minorities featured in a recent Afrobarometer Tolerance Index, which claimed that only six (6) out of every hundred (100) Malawians would tolerate a homosexual person as their neighbour, this is despite the fact that Malawi was ranked the most tolerant state out of the thirty three (33) African countries measured.

The Constitution of Malawi binds the Executive, Legislature and Judiciary and requires equal protections of the law for all the people of Malawi. If the Executive wishes to uphold its Constitutional mandate, they will be required to play a more active role in advancing and protecting the “universally accepted human rights” of sexual minorities. Notably, it has been about four (4) years since the first moratorium was imposed by former President Banda. Since then, the discriminatory provisions of the Penal Code have remained in the statute books of Malawi and the Executive has done nothing to review or remove these provisions or to educate society or carry out sensitization campaigns on gay rights, tolerance and acceptance of diversity. The continued existence of these laws has, not only, placed sexual minorities at risk of being arrested and prosecuted, but also perpetuated social stigma, intolerance and discrimination.

To put an end to these abhorrent risks, the Executive should take urgent steps to remove the discriminatory provisions. Moreover, they need to enact measures that actively protect sexual minorities. This could be achieved through the legislative process by reviewing and, ultimately, abolishing the provision. Alternatively, the Executive could approach the Judiciary and seek a declaration of unlawfulness for the impugned provision, on the basis that the provision goes against the spirit, purport and object of the Constitution of Malawi.

Furthermore and importantly, the presumed religious values and morals of the Malawian people, should not be used as a rationale for unlawful discrimination against some of the most vulnerable in society. Instead the values of the society should be developed so that they align with the Constitution. This would empower a society that affords all persons inherent human dignity, privacy, self-determination, and that recognises that all persons are different, but nonetheless practice tolerance and respect towards all persons regardless of their religion, status, origin or sexual preference etc.

Judge Albie Sachs very eloquently said that:

“The development of an active rather than a purely formal sense of enjoying a common citizenship depends on recognising and accepting people with all their differences, as they are. The Constitution thus acknowledges the variability of human beings (genetic and socio-cultural), affirms the right to be different, and celebrates the diversity of the nation. Accordingly, what is at stake is not simply a question of removing an injustice experienced by a particular section of the community. At issue is a need to affirm the very character of our society as one based on tolerance and mutual respect. The test of tolerance is not how one finds space for people with whom, and practices with which, one feels comfortable, but how one accommodates the expression of what is discomfiting.”

Finally, even if the Executive’s moratorium on the arrest and prosecution of consensual same-sex practices is declared lawful, the continued existence of discriminatory laws perpetuates further intolerance, stigma and discrimination. Removing the discriminatory laws from the statute books, will be the first (albeit baby) step towards achieving tolerance and the recognition of diverse people within the Malawian society. The Executive should start the process of engaging with all stakeholders; including the religious community, and advocate and campaign for a Malawian society that exists for all who live in it, including members of sexual minorities.

Tashwill Esterhuizen