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The Business Day
By Priti Patel

LAST week, a magistrate in Blantyre, Malawi, sentenced Tiwonge Chimbalanga and Steven Monjeza to 14 years in prison — the maximum penalty — for “carnal knowledge against the order of nature”. They were arrested in December after holding a traditional engagement ceremony at a lodge in Blantyre. Since their arrest, they have been held in Blantyre’s Chichiri prison, notorious for its dire conditions.

The conviction and disproportionately harsh sentence has sparked outrage in the region. Last week, South Africans came together to protest in front of the Malawi high commission in Pretoria. Human rights groups in Malawi voiced their frustration at the denial of rights to individuals in same- sex relationships. Senior United Nations officials in the past have echoed this sentiment, noting that such criminalisation would seriously undermine Malawi’s efforts to respond to HIV.

But in the growing outrage following the conviction, it is easy to lose sight of what is truly at stake here.

This case is not only about whether individuals in same-sex partnerships should be subjected to criminal punishment for their private actions. Even more important , it is an attack on the foundations of Malawi’s democracy through the systematic erosion of fundamental human rights, including the right to expression and association.

Since the pair’s arrest, government officials have made clear that anyone seen as supporting the rights of lesbian, gay, bisexual and transgender (LGBT) people will be subject to harassment. In February, one man was arrested for putting up posters supporting LGBT rights and sentenced to 60 days community service.

A newspaper headline months after Monjeza’s and Chimbalanga’s arrest announced that the police were on the hunt for “gays”. The article reported that the police had been monitoring specific individuals whom they suspected of being in same-sex partnerships or supporting LGBT rights.

It is not hard to imagine how the targeting of one marginalised group can later be used more broadly to silence mainstream opponents of the ruling party’s agenda. This is clear in Zimbabwe, where Zanu (PF) and the Movement for Democratic Change are using gay rights as a hot potato in their respective quests to gain control over the government. But for Malawi this lesson is particularly poignant, given its recent history.

Until 1994, Malawi was held in the stranglehold of Hastings Kamuzu Banda, who had in 1971 become Malawi’s president for life. During the more than two decades of Banda’s reign, dissension was not brooked, let alone opposition parties. Phones were tapped; mail was regularly opened.

The choking of fundamental rights didn’t end there. Women were forbidden from wearing trousers . Men were prohibited from having long hair or beards, and forced haircuts and shaves were common practice. Censorship was rampant, with kissing in public banned and specific history books burnt.

Malawi emerged from this at the same time as SA, in 1994. In the past 16 years, Malawi has held democratic elections; opposition parties are growing. But given the relative infancy of Malawi’s democracy, strengthening and promoting fundamental rights is critical. The conviction of Monjeza and Chimbalanga takes us a significant step back towards Banda’s Malawi.

As open spaces for dialogue and dissenting views and expression are stifled, opposition to government policy becomes muted.

It is easy to make this case all about the rights of people in same-sex partnerships, but regardless of your personal views on same-sex partnerships, the conviction last week should serve as a cautionary verdict to all who value and uphold fundamental constitutional and human rights.

– Patel is a lawyer with the Southern Africa Litigation Centre.


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