Government asked to repeal laws that criminalize same-sex relations between consenting adults

Nyasa Rainbow Alliance’s Eric Sambisa George Kachimanga at the press conference

* Malawi is a secular state which cannot use religious doctrine as a yardstick for interpreting the Constitution

* We reject any attempt by our authorities to impose religious doctrine in a bid to limit the enjoyment of human rights by its citizens

* On account that Malawi has a liberal constitution which guarantees its citizens the enjoyment of human rights

* It would be out of order to employ the religious sentiments of some people as a guide to the constitutional rights of others

By Duncan Mlanjira

Acting on behalf of the community of lesbians, gays, bisexuals, transgender, and intersex (LGBTI), Nyasa Rainbow Alliance (NRA) has reiterated its appeal that the Malawi Government should repeal laws that criminalize same-sex relations between consenting adults.

This comes after Minister of Justice indicated recently that issues to do with same-sex relations should be subjected to a national study or a referendum — and at a press conference in Blantyre on Saturday, NRA argued that the Minister’s statement was “very disturbing because minority rights issues cannot be subjected to a broader population considering that numerically, the LGBTIQ+ community is already disadvantaged”.

“The state needed to make a commitment that they will be duty bound to protect our rights by playing a protectionist approach,” said NRA executive director, Eric Sambisa in the company of George Kachimanga, program & operations manager.

They also go further to say government must “bring to book all perpetrators of violence and harassment against the LGBTIQ+ persons including police officers so that the law should take its course”.

“We wish to remind the Government that Malawi is a secular state which cannot use religious doctrine as a yardstick for interpreting the Constitution.

“We reject any attempt by our authorities to impose religious doctrine in a bid to limit the enjoyment of human rights by its citizens on account that Malawi has a liberal constitution which guarantees its citizens the enjoyment of human rights.

“It would be out of order to employ the religious sentiments of some people as a guide to the constitutional rights of others considering that within religions, there are vastly different, and at times, highly disputed views on how to respond to the fact that members of their congregations and clergy are themselves homosexual.

“We wish to reiterate our position that a state that recognizes differences does not mean a state without morality or one without a point of view.”

Thus, in asking for repeal of the laws, NRA also appeals for the Government “to ratify international human rights obligations that promote rights of LGBTIQ+ people as per recommendations of the Universal Periodic Review”.

In its statement, NRA contends that Malawi is one of the countries in Africa which has maintained repressive laws that criminalize same-sex conduct in its statute books, saying “despite being a member of the world’s top human rights body — the UN Human Rights Council — Malawi has refused or neglected to address the growing condemnation from both local and international human rights activists who have been demanding the repeal of laws that criminalize consensual same sex relationships between consenting adults in private”.

“It is sad to note that, the government of Malawi continues to use culture, tradition and religion to justify the denial of basic rights of the LGBTIQ+ persons in Malawi. This is contrary to the dictates of the constitution of Malawi which guarantees to everyone the right to equal protection, and to be recognized as a person before the law, and the right not to be discriminated against on the basis of one’s status.”

Quoting the Penal Code of Malawi (Cap: 7:01 of the Laws of Malawi) in sections 137A, 153, 154, and 156 that criminalize homosexuality and other consensual activities among adults, the NRA maintains that “as a result, LGBTI people face routine harassment, violence and discrimination in almost all aspects of their daily lives”.

NRA reiterated that Malawi is a signatory to countless international human rights instruments, saying each nation sitting on the UN’s Human Rights Council — of which Malawi is a member — “is charged with the responsibility of promoting and protecting human rights of its citizens”.

They maintain that Malawi’s membership in the Geneva-based UN’s premier human rights body “was a great opportunity that would have given Malawi a voice at that level, visibility, and of course a chance to raise critical human rights issues that are dear to the lives of its citizens including the marginalized LGBTIQ+ persons”.

“However, to our dismay, we have noted that Malawi’s membership on the Council is specifically and systematically aimed at blocking criticism or scrutiny on its failure to promote human rights of minority groups and to weaken the body’s ability to address rights abuses in this country.”

NRA gave a recent example indicating that Malawi voted against the renewal of the mandate of the HRC’s Independent Expert on Violence and Discrimination based on Sexual Orientation and Gender Identity despite assuring NRA — through its representatives who attended the 50th HRC session at Geneva — that it would support the said renewal”.

“Although Malawi’s decision did not affect the renewal of the mandate of the said Independent Expert on SOGI as the said mandate was nonetheless renewed, however, the mere act of voting against the renewal had portrayed a negative signal that Malawi condones violence and discrimination against the LGBTIQ+ persons.

“We should stress that this mandate is not about promotion of same sex marriages, or the creation of new laws, rather it is meant to authorize the Independent Expert on SOGI to facilitate dialogue and information on SOGI issues, identify any violations and best practices, and bring the same to the international level for action.

“It is our position that Malawi’s decision to vote against the renewal of the Independent Expert of SOGI is a serious breach of UN General Assembly’s founding resolution of the Human Rights Council requiring council members to uphold the ‘highest standards’ of human rights, and to ‘fully cooperate’ with the council.

“We note that, this is not the first time that the Government of Malawi has desolated the LGBTIQ+ community. During the third cycle of Universal Periodic Review (UPR) for Malawi, the State refused to accept any recommendations that related to the LGBTIQ+ people despite receiving several recommendations on the subject,” the NRA said.