(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)
In Malawi, consensual sex between men is criminalised under Sections 153 and 156 of the penal code. Having sex with another man is punishable by 14 years’ imprisonment, whilst attempting to have sex with another man is punishable by five years’ imprisonment.
Section 153 prohibits ‘Unnatural offences’ and states that any person who ‘has carnal knowledge of any person against the order of nature’ or ‘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 156 prohibits ‘Indecent practices between males’ and states that ‘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.’
In February 2011, the former president signed a bill that also criminalises sexual relations between women. Section 137A of the penal code prohibits ‘indecent practises between females’, with those found guilty facing up to five years in prison.
In November 2012, Justice Minister Ralph Kasambara issued a moratorium on laws criminalizing same-sex conduct until they could be debated in Parliament, after concerns were raised that such laws may subsequently be ‘found unconstitutional.’ However, he later retracted his remarks.
Malawi’s constitution promises to protect the human dignity and equality of all; Article 12 (IV) states that ‘the inherent dignity and worth of each human being requires that the State and all persons shall recognize and protect fundamental human rights and afford the fullest protection to the rights and views of all individuals, groups and minorities whether or not they are entitled to vote.’
No case law could be found, but we welcome suggestions regarding LGBTI asylum cases from Malawi.
PUBLIC ATTITUDES AND/OR STATE'S CAPACITY TO PROTECT
In their 2011 Country Reports on Human Rights Practises, the U.S. State Department argues that in Malawi, ‘an environment conducive to discrimination based on sexual orientation was created and maintained by senior government officials.’ They note that same-sex activity has been publically denounced as ‘un-Malawian’, and that the government has consistently blamed the withdrawal of Western aid for the increased homophobia in the country.
The Malawian government is viewed as being caught between trying to appease Western donors, upon whose aid the Malawian economy heavily depends, and responding to conservative anti-homosexuality lobbies within Malawi. The Justice Minister redacted claims that there had been a moratorium on LGBTI-related crimes within a week of the announcement under pressure from both the Malawi Law Society – who accused the government of bowing to Western pressure - and the Malawi Council of Churches who remains committed to a staunch belief that homosexuality should remain criminalised because it contradicts Christian and African values.
In response to the 2012 moratorium, Human Rights Watch expressed their concern that anti-LGBTI legislation – even if unenforced – has significant consequences upon LGBTI communities who often face ‘blackmail, restricted access to health services, and lack of access to justice.’ Indeed, in 2009 Mary Shawa, the Secretary for Nutrition, HIV and AIDS, publically noted that Malawi’s inability to fight HIV/AIDS was in part due to a lack of recognition and services for the homosexual population, among which the HIV prevalence rate is thought to be 25%. Research conducted by the Malawian NGO Centre for Development of People (CEDEP) in collaboration with several American Universities, revealed that ‘approximately 34 percent of gay men in the country had been blackmailed or denied services such as housing or healthcare due to their sexual orientation. Additionally, 8% of those surveyed said they had been beaten by police or other security forces due to their sexual orientation’.
In 2009, Steven Monjeza and his trans partner Tiwonge Chimbalanga were convicted of ‘unnatural offences’ and ‘gross indecency’ under Sections 153 and 156 of the Penal Code after they were married in a traditional ceremony. The magistrate in the case denied them bail on the premise that the ‘public out there is angry with them’ and they would be put at danger if bail was allowed. They were each sentenced to the maximum of 14 years in prison with hard labour, after the judge noted; ‘I will give you a scaring sentence so that the public be protected from people like you, so that we are not tempted to emulate this horrendous example.’ Human Rights Watch lobbied the President of Malawi to intervene in the case, arguing that the case was an affront to the human rights of all Malawians. They urged him to ensure that charges were dropped and that Malawi ‘uphold constitutional principles of equality, privacy and dignity’. The couple were later pardoned and Chimbalanga received refugee status in South Africa.
NON-GOVERNMENTAL ORGANIZATIONS (NGOs)
CEDEP - Centre for the Development of People
P.O. BOX 31733, Chichiri, Blantyre 3, Malawi, Tel: +265888509732
Director: Gift Trapence
Email: cedep_orgyahoo [dot] com or gtrapenceyahoo [dot] co [dot] uk
Administrative contact: Dunker Kamba
Email: cedep_orgyahoo [dot] com
Centre for the Development of People (CEDEP) is a registered human rights organisation under the Trustees Incorporation Act of 1962. The organization was established in order to address the needs and challenges of minority groups in Malawi in the context of human rights, health and social development. Such minority groups are LGBT people, Prisoners, Sex workers, Street Children and any other such minority groups whose rights are often neglected.
The main goal of CEDEP is to create a legally and socially accepting environment where minority groups have an improved livelihood. The organization objectives are; to advance the human rights of minority groups through advocacy and lobbying, to promote human rights and health of minority groups through civic education, training, capacity building, networking and research, and provide support services for the improvement of the welfare of minority groups in accordance with their needs.
COUNTRY OF ORIGIN SPECIALISTS
Kim Yi Dionne
kdionnesmith [dot] edu
Kim Yi Dionne is a professor of government at Smith College, where she teaches courses on African politics. She has a PhD in Political Science from the University of California Los Angeles (UCLA). Her research covers a range of topics, including elections and protests, public opinion, HIV/AIDS interventions, and the politics surrounding sexual orientation and gender identity in Africa. She was a Fulbright Fellow to Malawi from 2008-2009.
Email: almsosa2gmail [dot] com
Alan MSOSA is a Malawian expert who completed PhD in Human Rights as a Commonwealth Scholar at the University of Essex in the United Kingdom. He is an affiliate of the University of Bergen Centre on Law and Social Transformation. He has previously interviewed LGBTQ Malawians to document their experiences of stigma and discrimination. He has previously led an investigations team of a national human rights institution in Malawi, and supported national and international advocacy promoting intersecting issues of minority rights. He has written numerous expert reports about LGBTQI rights in Malawi.
Areas of Expertise: Monitoring and Evaluation; Strategic planning; research; Human rights; HIV and AIDS.