The outlaws in Malawi: The travails of sexual minorities in a Southern African countryPosted: 10 July, 2018
Author: Urerimam Raymond Shamaki
Barrister and solicitor of the Supreme Court of Nigeria; LLM (Human Rights and Democratisation in Africa) Candidate
Homosexuality is still considered a crime in many countries of the world. Malawi is one of the 33 countries in Africa and 72 in the world that still criminalises homosexuality. Although there is no direct law prohibiting homosexuality in Malawi such as is the case in countries like Nigeria with the Same-Sex Prohibition Act 2015, there are still provisions of some laws indirectly affecting homosexual activities in Malawi. This article briefly reviews some of the provisions of these laws and how they impact on the rights of sexual minorities in Malawi.
The Penal Code
The principal law regulating homosexual acts in Malawi is the Penal Code. Although the relevant provisions do not categorically prohibit homosexual acts, sections 153 and 154 of the Penal Code criminalise unnatural offences and an attempt to commit unnatural offences. These offences are punishable by 14 and 7 years’ imprisonment respectively upon conviction. The substance of section 153(a) reads: ‘Any person who has carnal knowledge of any person against the order of nature shall be guilty of a felony and shall be liable to imprisonment for fourteen years.’ The provision has been used to target sexual minorities generally as they are frequently harassed, intimidated, arrested and charged for either having carnal knowledge of a person against the order of nature or attempting to have such carnal knowledge. Although the police have argued that what is criminalised is not the state of being a homosexual, but the engagement in sexual acts that are deemed to be against the order of nature, this is difficult to accept as majority of these arrests and prosecutions were done on mere suspicions or perceptions of people’s sexual orientation rather than actual commission. For example, in The Republic vs Steven Monjeza Soko & another, Tiwonge Chimbalanga, a transwoman and her husband Steven Monjeza were arrested and charged for committing unnatural offences and indecent practices between males contrary to sections 153 and 156 of the Penal Code after they conducted a traditional engagement ceremony. They were subsequently found guilty and sentenced to 14 years’ imprisonment. However, after much pressure from the international community, they were subsequently released.
The Penal Code also provides for the offence of ‘indecent practices’, which has often been used to criminalise homosexuality generally. Section 137A of the Penal Code prescribes 5 years’ imprisonment upon conviction on any female who commits ‘gross indecency’. It is under this provision that lesbians are usually arrested and prosecuted. This same position of the law also applies to males under section 156 of the Code. Unfortunately, the Code does not define what the phrase ‘gross indecency’ mean as its interpretation remains subjective to the police making arrests and the magistrates before whom these arrested persons are charged. Without a working definition of the phrase, the State finds it convenient to arrest and charge sexual minorities under these provisions. For example, in the Steven Monjeza Soko case cited above, the State included the offence of ‘indecent practice between males’ under section 156 of the Code as a backup plan, should the charge under section 153 fail.
The Marriage, Divorce and Family Relations Act 2015
Section 2 of the Marriage, Divorce and Family Relations Act 2015 defines ‘sex’ as a person’s sex assigned at birth. This definition impacts greatly on intersex and transsexual persons as it clearly demonstrates that the law does not recognise their existence. The implication of this restrictive definition is that a person who identifies as a transgender person cannot undergo a sex reassignment surgery.
On intersex persons, it is now the general consensus of both legal and medical scholars that an intersex child born with ambiguous genitalia (both sexual organs visible) is not to undergo a genital normalising or sex assignment surgery at birth. Such a child should be allowed to grow to the age of maturity so as to decide his or her sex and give an informed consent for any surgery. This has become necessary because most children who undergo genital assignment surgeries at birth usually encounter complications which require further surgeries when developing into adulthood. If this is the case, then what happens to intersex children born with ambiguous genitalia in Malawi in view of this restrictive definition of ‘sex’? This law ‘compels’ the system to carry out a genital normalising surgery on an intersex child at birth which may in turn degenerate into several health challenges when such a child attains the age of majority.
It is also important to note that the Act does not define the term marriage. It, however, outlines in section 12(1) the various types of marriages recognised as valid. Interestingly, section 12(2) of the Act recognises as valid a marriage conducted under the laws of another country where one or both of the parties is subject to the laws of that country. Theoretically, this means that the provision validly recognises the marriage of a homosexual couple conducted in accordance with South African laws, for example, where either or both of the couple is/are of South African origin but live(s) in Malawi. It is irrelevant that one of the parties is Malawian insofar as the other is a national of a country whose laws permit same-sex marriage and the marriage was indeed conducted in accordance to the laws of that country. Even though to the best of the author’s knowledge, such a situation has not yet happened in Malawi, it will be interesting to see how the Malawian authorities will react to such a situation in the face of the aforementioned laws.
Malawi’s obligation under international law
Malawi is party to several international human rights treaties such as the ICCPR and the ACHPR. By ratifying these instruments, the country is bound to adhere to the standards set out in them. This is in terms of the international law principle pacta sunt servanda as restated in article 26 of the Vienna Convention on the Law of Treaties 1969, that treaties are binding on parties to them and must be performed in good faith. The Malawian Constitution, which is the supreme law of the country, provides in section 5 that ‘[a]ny act of Government or any law that is inconsistent with the provisions of this Constitution shall, to the extent of such inconsistency, be invalid.’ Section 20(1) further prohibits discrimination in all its forms and ramifications by guaranteeing equal and effective protection of all persons from discrimination on the basis of sex, political or other opinion, birth or other status or condition, etcetera. This provision is similar in substance to article 2 of the ICCPR. The Human Rights Committee, in interpreting article 2 of the ICCPR stated in paragraph 32 of its General Comment No. 20 on non-discrimination that ‘[o]ther status’ as recognised in article 2, paragraph 2, includes sexual orientation. States parties should ensure that a person’s sexual orientation is not a barrier to realising Covenant rights.’ The Human Rights Committee has also held in Toonen vs Austrailia that the prohibition of discrimination on the basis of ‘sex’ under article 2 of the ICCPR includes sexual orientation. In view of these facts, Malawi is, therefore, bound under international law to respect the rights of sexual minorities by not enacting and enforcing laws that discriminate against the LGBTI community and goes contrary to the Malawian Constitution.
About the Author:
Urerimam Raymond Shamaki is currently a student of the LLM in Human Rights and Democratisation in Africa, 2018 at the Centre for Human Rights, Faculty of Law, University of Pretoria, South Africa. He is a barrister and solicitor of the Supreme Court of Nigeria.