Criminalization same-sex relationships by consensual partners attracting homophobic violence and arbitrary arrests
In asking the Malawi Government to repeal laws that criminalize same-sex relations between consenting adults, Nyasa Rainbow Alliance (NRA) has revealed that there have been persistent reports of human rights violations of lesbians, gays, bisexuals, transgender and intersex (LGBTI+) people.
These include being perpetrated by the police through unlawful detention, extortion, threats of disclosure of confidential information, denial of legal protection as well as physical violence in detention.
Acting on behalf of the community of LGBTI people, NRA said at a press conference on Saturday in Blantyre that “due to failure by the Government to repeal laws that criminalize consensual same sex relationships between two consenting adults in private, the LGBTIQ+ persons continue to face homophobic violence, arbitrary arrest and detention, harassment, discrimination, sexual violence, extortion and other abuses”.
“Arrests on the basis of sexual orientation or gender identity occur frequently in most parts of Malawi, especially in areas where homophobia and transphobia exist.
“Thus, the police have been making frequent arrests of LGBTIQ+ people simply because they are lesbians, gays, bisexual, transgender, and intersex among others.
“There have also been persistent reports of human rights violations of LGBTIQ+ persons by the police, including unlawful detention, extortion, threats of disclosure of confidential information, denial of legal protection as well as physical violence in detention.
“Furthermore, the police also seldom render assistance to LGBTIQ+ persons who have been assaulted as a result of their status, or for any other criminal complaint they may have. Instead, they threaten to reveal the complainant’s sexual orientation to family members, friends or colleagues to obtain a confession.”
The organisation further reveals that “some police officers have also been forcing some LGBTIQ+ detainees to submit to genital verification without their consent in order to ascertain whether they are male or female”.
They gave an example that on October 20, 2021, Mangochi Police Station arrested a transgender woman, Jana Gonani on allegation that she was identifying herself as a woman when she was a man.
“It is on record that while at Mangochi Police Station, Gonani was forced to submit to genital verification without her consent by a male police officer where she was also placed in a male cell despite identifying herself as female.
“As if that is not enough, Gonani was also subjected to medical examination without her consent in order to verify her mental faculties simply because of her sexual orientation.
“Such examinations are conducted on the assumption that, identifying oneself as LGBTIQ+ person is a sign of insanity. This is an insult to the LGBTIQ+ community.”
NRA indicated that Gonani is serving an 8-year jail term at Zomba maximum prison “simply because she had identified herself as female”, saying they find this conduct “as a serious violation of the ‘liberty clause’ enshrined in section 18 of the Malawi Constitution”.
“In our view, the choice and freedom to decide on how to have consensual carnal knowledge with fellow adults, including gender of that person is intimately within an ambit of personal autonomy wherein an individual is entitled to be free from state interference.
“Thus, the right to liberty in section 18 of the Malawi Constitution guarantees everyone the freedom to have sexual intercourse with people that they feel attracted to without being interfered by the state.
“Thus, the criminalization of other ways of obtaining sexual gratification is restricting individual persons from realizing their personal preferences.
“In any case, the said restriction violates the right to personal liberty as liberty presumes an autonomy of ‘self’ that includes freedom of thought, belief, expression, and certain intimate conduct.”
NRA executive director, Eric Sambisa — in the company of George Kachimanga, program & operations manager — maintained that it is their “considered opinion that all cases of violence and discrimination of the LGBTIQ+ persons are being instigated by draconian laws that the Government of Malawi is refusing to repeal as people harassing the LGBTIQ+ persons are hiding behind the said laws to advance their selfish motives against the LGBTIQ+ persons”.
“We wish to commend the Zomba High Court for referring the Jana Gonani case to the Chief Justice for certification as a constitutional matter and it is our expectation that the Constitutional Court will uphold the dictates of the Malawi constitution by declaring sections 137A, 153, 154, and 156 of the Penal Code unconstitutional in so far as they criminalize homosexuality and other consensual activities among adults which violates among others; their right to liberty, human dignity, equality, and privacy as enshrined in sections 18, 19, 20 and 21 of the Malawi constitution respectively”.
NRA also accuses Malawi as being “double faced” in its approach on the promotion of human rights”, stressing that this “has stirred up several human rights abuses against the LGBTIQ+ community such as:
1) failure to decriminalize consensual same sex relationships between consenting adults;
2) denial of registration of LGBTI led organizations like Nyasa Rainbow Alliance (NRA);
3) LGBTIQ+ refugees denied entry in Malawi;
4) denial of access to health by LGBTIQ+ persons; and
5) verbal or physical attacks against the LGBTIQ+ persons, among others.
“It is perfectly clear that Malawi has refused or neglected to respect its obligation under Resolution 275 of the African Commission on Human and Peoples’ Rights to protect LGBTIQ+ persons against violence and other human rights violations against persons on the basis of their real or imputed Sexual Orientation or Gender Identity (SOGI).
“We wish to emphasize that the Human Rights Council should not be a place where States that violate the rights of its citizens would go to seek shelter. It should be a profoundly uncomfortable place for rights violators, and a place where such human rights violators would be held to account and put under the spotlight for their abuses.”
NRA this called on the leadership of the United Nations “to hold the Government of Malawi accountable over its failure to promote and protect the rights of the LGBTIQ+ persons in Malawi”.
“It is high time the council reviewed Malawi’s human rights record during the three-year term it is sitting on the council to ascertain its commitment to respect and uphold the enjoyment of human rights by its citizens including LGBTIQ+ persons.
“We note that Section 4 of the Constitution of Malawi binds all executive, legislative and judicial organs of the State at all levels of Government to ensure that all the people of Malawi regardless of their status have equal protection of the Constitution, and laws made under it.
“It is sad, therefore, to note that most of the documented acts of violence and abuses that the LGBTIQ+ people face in Malawi, are orchestrated by the Government of Malawi and its officials. We find this not only deplorable, but also disturbing, and distressful to say the least.
“It is imperative to note that Malawi accepted the recommendations on taking effective measures to protect LGBTIQ+ persons from violence and guaranteed effective access to health services including treatment for HIV/AIDS for the LGBTIQ+ people during the 2nd UPR cycle.”
The NRA also indicated that previous government, led by the Democratic Progressive Party (DPP), “had committed to implement all the accepted recommendations through the development of the National Action Plan on Human Rights — which is yet to be fully implemented”.
“Sadly, the current government did not accept any recommendations concerning the LGBTIQ+ community made to it by other states in the 3rd UPR cycle. This is retrogressive, and we demand to have the action plan implemented immediately as this is the only positive step that would foster the creation of an inclusive environment that would lead to the repeal of sections 153, 156, and 137 of the Penal Code that criminalize homosexuality in Malawi.
“We also feel that all the deliberate efforts being made by the government of Malawi to denying the LGBTIQ+ members to enjoy full rights as enshrined in the Bill of rights, threatens to erode all the significant gains we have registered over the years in advocating for the rights of the LGBTIQ+ persons.
“This backwardness should not be tolerated,” said NRA at the press conference, which was in response to a recent statement made by Minister of Justice, who indicated that issues to do with same-sex relations should be subjected to a national study or a referendum.
NRA argues that the Minister’s statement is “very disturbing because minority rights issues cannot be subjected to a broader population considering that numerically, the LGBTIQ+ community is already disadvantaged”.
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