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Moratorium on anti-gay arrests in Malawi reaffirmed

In this May 20, 2010 file photo, women protest against a sentence of 14 years in prison, with hard labor, given to two men in Malawi under Malawi's anti-gay legislation, in Cape Town, South Africa, 20 May 2010
In this May 20, 2010 file photo, women protest against a sentence of 14 years in prison, with hard labor, given to two men in Malawi under Malawi's anti-gay legislation, in Cape Town, South Africa, 20 May 2010

AP Photo/Schalk van Zuydam, File

This statement was originally published on hrw.org on 21 December 2015.

The Malawian government has reaffirmed its moratorium on prosecuting consensual same-sex conduct, the Centre for the Development of the People (CEDEP) and Human Rights Watch said today. Authorities also dropped sodomy charges against two men arrested on December 7, 2015.

A written statement from Justice Minister Samuel Tembenu, released on December 18, explicitly commits the government to the suspension of enforcement of anti-gay penal code provisions, first announced in 2012. The statement also emphasizes the government's commitment to freedom of association and expression for groups working to advance lesbian, gay, bisexual and transgender (LGBT) rights, setting Malawi apart from other countries that have moved to suppress or even criminalize LGBT activism, the groups said.

“It's heartening to see the Malawian government reinforce its commitment to human rights,” said Gift Trapence, director of the Centre for the Development of the People (CEDEP), a Malawian human rights organization that advocates equal rights for people of all sexual orientations and gender identities. “The next step will be for the government to get rid of discriminatory laws altogether, including those that criminalize consensual sex between adults of the same sex. Further, we would want the government of Malawi issue a circular to the police stations so that the moratorium is adhered to by the Malawi Police Service.”

On December 7, members of a Community Policing Forum in Lilongwe's Area 25, apprehended two men whose names CEDEP and Human Rights Watch are withholding for privacy reasons. The community police physically assaulted one of the men, illegally entered the other's home, and allowed local residents to ransack the premises, a lawyer for the two men said. Community Policing Forums are empowered to organize neighborhood watch groups and to report information to the Malawi Police Service, but are not to carry out arrests.

The community police then turned the two men over to the police, who forced the two men to undergo HIV and STI tests and released them on bail on December 8. A police spokesperson later denied that the two men had been arrested, stating that they were taken into custody for their own protection, although the bail bond, on file with Human Rights Watch, states that they were charged with sodomy.

The incident is the first known arrest in Malawi since 2009 on charges of consensual same-sex conduct, CEDEP and Human Rights Watch said. After two Malawians were arrested in December 2009 and convicted of “carnal knowledge against the order of nature” and “gross indecency” between males, then-President Bingu wa Mutharika pardoned and released them in 2010. In 2012, the new president, Joyce Banda, publicly supported decriminalization of consensual same-sex conduct, and her justice minister, Ralph Kasambara, called for a moratorium on arrests under penal code provisions that, he said, might conflict with Malawi's constitution.

In 2013, CEDEP and the Malawi Law Society filed a constitutional challenge before the High Court, contending that Malawi's anti-homosexuality laws – including sections 137(a), 153, 154 and 156 of the penal code – violate article 20 of the constitution, which prohibits discrimination on any grounds. In July 2014, Solicitor-General and Secretary of Justice Janet Chikaya-Banda affirmed to the United Nations Human Rights Committee that these laws would not be enforced pending the High Court review of their constitutionality. That review is ongoing. Malawi's parliament should, in any case, revoke these discriminatory legal provisions, CEDEP and Human Rights Watch said.

Justice Minister Tembenu's decision to drop the charges against the two men and to publicly commit to the moratorium, demonstrates the government's commitment to international human rights standards and the rule of law, Human Rights Watch said. The decision follows several other recent positive developments in southern Africa, including the decriminalization of consensual same-sex conduct in Mozambique in June. Even in Zimbabwe, where President Robert Mugabe has frequently made homophobic statements, the government's willingness to allow formal gatherings of LGBT activists as part of the International Conference on AIDS and STIs in Africa (ICASA), held in Harare in early December, demonstrates momentum in support of rights for LGBT people in the region.

Tembenu's statement that the government has “consistently invited civil society to carry out intensive sensitization campaigns on gay rights” is also encouraging, the groups said. In affirming activists' right to speak out and educate the general public on sexual orientation and gender identity, Malawi should serve as an example to countries such as Nigeria, Gambia, Uganda, Russia and Kyrgyzstan, which have taken steps in recent years to shut down dialogue on LGBT rights and to criminalize freedom of association.

However, the recent arrests in Malawi and the subjection of the men to medical tests against their will point to the need for Malawian police and community policing forums to receive appropriate training in human rights, including the rights of sexual and gender minorities. Malawian authorities should also ensure that any community police members and others who committed unlawful acts against the two men are appropriately prosecuted. The assailants should also be held accountable for violence committed on the grounds of the men's real or perceived sexual orientation or gender identity, in accordance with African Commission on Human and Peoples' Rights Resolution 275 of 2013.

“Thousands of LGBT Malawians can now breathe a sigh of relief that Malawi has reaffirmed its leadership in upholding human rights for all,” said Neela Ghoshal, senior LGBT rights researcher at Human Rights Watch. “The government should ensure that all law enforcement officers are aware of their obligations to protect and not discriminate against LGBT people and should work with civil society to make sure this message also reaches the general public.”

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