By Melanie Nathan, May 11, 2023,
The Constitutional Court in Blantyre, Malawi today postponed the same- sex decriminalization review to May 23, 2023. Before adjournment, Justice Mandala Mambulasa recused himself after the State asked him to step down from the case as he previously made his stand on the issue.
Malawi criminalizes same-sex conduct.
“Melanie Nathan of African Human Rights Coalition notes that in the reports we have received from our AHRC Ambassadors in Malawi, we see that Lesbian, gay, bisexual and transgender (LGBT) people face violence and discrimination in almost every aspect of their lives. Police physically assault, blackmail, arbitrarily arrest and detain LGBTI people or those perceived as such, sometimes without due process or a legal basis, at other times as punishment for simply exercising basic rights, including seeking treatment in health institutions. We are also investigating a case where an American investor was maligned and abused by public officials, when perceived as LGBT simply because he was unmarried – and had his investment compromised and endangered. The full story will be released in due course. At this time we at AHRC call on Malawians to support human rights for all so, without which the country will never prosper, as investment is only attractive when human rights and freedom is upheld for all people. Ot is time for religious realms to embrace all God’s creation with love and kindness, not criminality.”
The Constitutional court is hearing two matter which could impact decriminalization in the country. One such case is where first claimant, a man from the Netherlands, Wim Akster, is being accused of sexually abusing nine children at his orphanage in Blantyre. The second case concerns a transgender individual from Mangochi, Jana Gonani.
The ruling will involve whether effectively the court criminalizes or decriminalizes those involved in same- sex activities in the country.
Please stay tuned for updates about the current cases before the Court.
The Malawi Penal Code prohibits “carnal knowledge against the order of nature”, attempts to commit “carnal knowledge against the order of nature”, and acts of “gross indecency”. In late December 2009, a trans woman, Tiwonge Chimbalanga, and a man, Steven Monjeza, were arrested after holding a traditional “engagement” party. On 18 May 2010, they were found guilty of having committed “unnatural offenses” and “indecent practices between males” and sentenced to 14 years in prison. Thereafter President Bingu wa Mutharika pardoned both.
The Malawi Penal Code provides:
Any female person who, whether in public or private, commits any act of gross indecency with another female person, or procures another female person to commit any act of gross indecency with her, or attempts to procure the commission of any such act by any female person with herself or with another female person, whether in public or private, shall be guilty of an offence and shall be liable to imprisonment for five years.
— Section 137A: Indecent practices between femalesAny person who—
(a) has carnal 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 and shall be liable to imprisonment for fourteen years, with or without corporal punishment.
— Section 153. Unnatural offences
Any person who attempts to commit any of the offences specified in the last preceding section shall be guilty of a felony and shall be liable to imprisonment for seven years, with or without corporal punishment.
— Section 154: Attempt to commit unnatural offences
Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, shall be guilty of a felony and shall be liable to imprisonment for five years, with or without corporal punishment [under Section 28 of the Penal Code].
— Section 156: Indecent practices between males
On 18 May 2012, President Joyce Banda announced her intention to repeal the laws criminalizing same-sex sexual activity. On 5 November, the Malawian government suspended all laws that criminalized homosexuality. Attorney General and Minister of Justice Ralph Kasambara ordered police not to arrest LGBT individuals, pending a review from the National Assembly. Three days later, he reversed himself, saying, “There was no such announcement and there was no discussion on same-sex marriage.”The Malawi Law Society argued that it was unconstitutional for ministers to arbitrarily suspend any law and would set a dangerous precedent for the future. Religious leaders were strongly against the suspension.
In November 2013, the Malawi High Court announced its intention to review the constitutionality of the law by accepting an appeal. This has gone back and forth utilizing several cases, but to no conclusion. The law stands. The Police in Malawi were ordered to continue pursuing arrests of LGBTI people: On 9 February 2016, the High Court in Mzuzu has ordered the Malawi Police Service, the Director of Public Prosecutions to continue arresting and prosecuting gays and lesbians who commit homosexual offences in Malawi. High Court Judge Dingiswayo Madise granted an injunction requested by anti-gay pastors seeking an end to the government’s moratorium on arrests under the country’s anti-homosexuality law during court deliberations on that law’s constitutionality. The prosecutions will continue pending a judicial review of the decisions, conduct and abdication of legal and constitutional duty by the Minister of Justice and Constitutional Affairs, the Director of Public Prosecutions and the Malawi Police Service.
The Malawi Constitution does not specifically prohibit discrimination on the grounds of sexual orientation. Human rights lawyers however, argued in 2010 that discrimination is prohibited under Section 20 of the constitution, which provides that “all persons are, under any law, guaranteed equal and effective protection against discrimination on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, property, birth or other status.” There has no been no official legal ruling to this effect.
The cases currently before the Court are highly significant and the idea that same-sex relationships may effectively be decriminalized is causing vehement opposition in religious circles.
Currently AHRC has several safe houses in Malawi for refugees from the North, seeking resettlement through UNHCR: DONATIONS HERE
Country Conditions expert Witness for LGBTI asylum seekers from Malawi
and other African countries, and ED of African Human Rights Coalition.