Malawi: Use ‘political will’ to review anti-homosexuality laws

04.08.2014

The Malawi government has told the UN that ‘political will’ exists to improve national legislation relating to homosexuality. Yet, more needs to be done to monitor cases of violations based on sexual orientation and gender identity, while at the same time ensuring protection for LGBTI people in the country.

(Geneva) – ISHR has welcomed an assurance to the UN given by the government of Malawi that authorities will not arrest people in relation to same-sex relations until laws criminalising homosexuality have been reviewed.

The Human Rights Committee, the UN’s expert body on the situation of civil and political rights in countries, received assurances from Malawi’s Secretary for Justice and Solicitor-General, Janet Chikaya-Banda, that ‘political will’ existed to improve national legislation relating to homosexuality.

‘We are encouraged that the government of Malawi reiterated to UN experts their commitment to address the precarious situation of lesbian, gay, bisexual, transgender and intersex people in their country, and we echo the Human Rights Committee's recommendations that Malawi repeal discriminatory provisions in the law that criminalise homosexuality as well as to create a mechanism that can respond to the immediate protection needs of LGBTI people,' said Pooja Patel of ISHR.

However, citing a lack of funds, Ms Chikaya-Banda stated that the review of sections 137A, 153 and 156 of the Penal Code, which criminalise consensual homosexual activity, has been stalled at the Law Commission. The penalties under these provisions range from up to fourteen years’ imprisonment and the potential for corporal punishment. 

Ms Chikaya-Banda also told the expert committee that ‘Malawi has not set up a mechanism to specifically monitor cases of violence based on sexual orientation, nor has it set up awareness-raising campaigns on the same’.

Furthermore, Ms Chikaya-Banda claimed that further action on the part of the government had not been taken because ‘there is basically no data’ when it comes to allegations of violations against persons based on their sexual orientation and gender identity in Malawi. Yet, the report of the government submitted to the Human Rights Committee acknowledges that ‘[homosexuality] is not practiced in the open… it is therefore very unlikely that cases of discrimination and violence based on sexual orientation would be reported’.

'The government of Malawi should avail itself of the assistance and support of the Office of the High Commissioner on Human Rights to translate its political will into reality’, stressed Ms Patel.

In 2012, President Joyce Banda, during her State of the Nation address, announced her intention to repeal Malawi’s sodomy laws. Shortly thereafter, she suspended enforcement of the law in order to ‘encourage public debate’.

'We believe that suspending the application of this law was a step in the right direction,' said Gift Trapence, Executive Director of Centre for the Development of People. 'However, two years have passed and nothing further has been tangibly done to fulfil the promise of decriminalising homosexuality in Malawi. Most disturbingly, we have seen the continued arrest and imprisonment of LGBTI people regardless of this moratorium’.

ISHR calls on the government of Malawi to prioritise repeal of provisions of the Penal Code which criminalise homosexuality, strengthen protections against violence and discrimination on the grounds of sexual orientation and gender identity, and ensure threats and attacks against LGBTI persons are properly investigated and perpetrators held to account.

Contacts:

Pooja Patel, International Service for Human Rights, Geneva, p.patel@ishr.ch

Photo: Malawi Secretary for Justice and Solicitor-General Janet Chikaya-Banda - africaresearchinstitute.org

 

Category:

Region
  • Africa
Topic
  • LGBT rights
  • United Nations
Mechanism
  • Human Rights Committee (CCPR)
  • UN Human Rights Treaty Bodies
Country
  • Malawi