Malawi is a landlocked country situated in Southern Africa and bordered by Tanzania, Mozambique, and Zambia. When Malawi became independent of Britain in 1964, its constitution enshrined a bill of rights. However, when the country reorganized as a single-party state two years later, a new constitution was promulgated, and the bill of rights was removed. In the years that followed, many Malawians suffered human-rights abuses. In 1994, Malawi attained a multiparty democracy; another constitution—adopted in 1995—guaranteed basic human rights once again, and a number of institutions were established to safeguard these rights. In addition, many good-governance and human-rights nongovernmental organizations (NGOs) operate in Malawi.
Malawi is a highly religious country. Religious beliefs are one of the major reasons for the country’s homophobic attitude toward lesbian, gay, bisexual, and transgender persons (LGBTs). In what follows I will describe the situation regarding the human rights of LGBTs in Malawi, focusing on the case of two gay men who were arrested and prosecuted between December 2009 and May 2010 because of their sexual orientation.
LGBTs are a minority group in Malawi. Studies suggest that the country’s LGBT population stands at about ten thousand. LGBTs are found in various occupational, age, and educational groups; it is believed that most reside in the commercial capital, Blantyre. Other minorities include the elderly; the disabled; children; members of religious sects; and humanists, atheists, and other nonbelieving groups. At various times and places, all of these minorities have been singled out for unequal treatment or discrimination, but Malawian LGBTs face an especially hostile climate.
Even though sexual orientation is implicitly protected under the 1995 constitution (see next page), many Malawians view LGBTs with scorn. Penal laws inherited from the British criminalize the practice of homosexuality and make no allowance for same-sex marriage. As a result, LGBTs are generally not free to exercise their constitutional rights. They are forced to live a secret life. Most hide their identity; those who become known find themselves unable to access commonly available social facilities.
MALAWI, formerly known as Nyasaland
Population: 13.1 million
49 percent male, 51 percent female (2008, census)
Population increase since 1998: 32 percent
Population growth rate: 2.8 percent per annum
Population distribution: 80 percent rural
Per capita income: US$140 per annum
52.3 percent of the population lives below the poverty line
Life expectancy: 40 years
Fertility rate: 5.6 (very high)
75 percent Christian
20 percent Muslim
3 percent indigenous beliefs
2 percent “other”
Sources: Population and Housing Census 2008, CIA’s The World Factbook 2010, and U.S. Department of State Bureau of African Affairs.
Homosexuality and Malawi’s Constitution
With the establishment of democracy in 1994 and the 1995 constitution with its restored bill of rights, basic human rights are guaranteed for all citizens. The principles of equality, nondiscrimination, and protection of minority rights are clearly established. Section 20 of the 1995 constitution prohibits discrimination on the basis of race, color, sex, language, religion, political or other opinion, disability, property, birth, or other status, including national, ethnic, or social origin. The constitution does not expressly specify sexual orientation as a basis for nondiscrimination, though it is generally recognized as implied within the recognized “other” status under section 20. The constitution is the supreme law of the land, and no other law or precedent is allowed to contradict it. Any law or precedent that contradicts any provision of the constitution is not binding. Malawi’s highest court has the power to decide whether a law or precedent contradicts the constitution.
Homosexuality and the Penal Code
Although the Constitution promotes nondiscrimination against LGBTs based on their “other” status, Malawi’s colonial-era penal laws criminalize same-sex marriage as well as homosexual acts. Anyone found to be a homosexual or engaging in homosexual behavior is treated as an outlaw. Prosecution occurs on charges of buggery and indecent practices as defined in Sections 153 and 156 of Malawi’s penal code.
Some local NGOs have called for the decriminalization of homosexual acts. Typically these calls have been greeted with stiff opposition from a spectrum of traditional, religious, and political leaders, and also from certain human-rights NGOs. These leaders speak against homosexuality in stark terms, describing such practices as abominable. They dismiss calls to legalize same-sex marriage, arguing that allowing such marriages would promote evil in the country. These remarks offer a snapshot of the prevailing attitude toward same-sex relationships in Malawi.
Homosexuality, Religion, and Culture
The majority of Malawians perceive homosexuality as a sin on religious grounds and as immoral based on their cultural beliefs. Most Malawians view homosexuality as something foreign: an import, not an integral part of Malawian or African culture. Those holding such views frequently call for all homosexual people to be expelled from the country, apparently believing that this will cleanse Malawian society and protect the young against mimicking “foreign cultures.” When conflict between the constitution’s promise of freedom and this traditional point of view is acknowledged, conservatives assert that Malawians must obey cultural dictates rather than respect individual freedom.
Homophobic attitudes among Malawians also draw from religious belief. Malawian Christians and Muslims quote verses from the Bible and the Qur’an to condemn homosexuality and LGBTs. Such attitudes among believers are largely mirrored by the clergy: in April 2010, three gay Christians visiting from Uganda, Zambia, and South Africa were chased from a meeting of the Malawi Council of Churches. The three were labeled as “sinners,” “unwanted visitors,” and “demonic.”
Compounding the problem, Malawian media—including state broadcasters—are biased against homosexuality and regularly present homophobic messages to the public.
Malawi’s First Gay Couple: Tiwonge Chimbalanga and Steven Monjeza
Tiwonge Chimbalanga and Steven Monjeza were the first gay couple to go public in Malawi. The two conducted an open wedding ceremony in Blantyre on December 26, 2009. On December 29, they were arrested, charged with gross indecency and buggery, and immediately incarcerated. Fortunately, Chimbalanga and Monjeza had visitors on a regular basis while in prison. By all accounts, they were treated well by guards and their fellow prisoners. Still, life is harsh in Malawian prisons; food and conditions are poor.
Chimbalanga and Monjeza were tried in the Blantyre magistrate court from December 2009 through May 2010. The charges against them were as follows: the first count was for buggery, which is contrary to section 153 of Malawi’s penal code; the second count alleged that Monjeza had had sex with Chimbalanga and that Chimbalanga had allowed Monjeza to have sex with him, constituting the offense of “carnal knowledge against the order of nature”; the third count was brought under section 156 of the penal code and charged gross indecency between males when the two lived together as husband and wife.
The men’s lawyer argued that their rights had been violated, and that their prosecution was contrary to Malawi’s constitution. The gay suspects contended that Sections 153 and 156 of the penal code, the basis of the state’s case against them, violated their constitutional rights to privacy, dignity, belief, conscience, and self-expression. The couple was supported by a wide range of campaigning organizations. The constitutional case went before the nation’s chief justice, who unfortunately ruled in February 2010 that no elements in the case raised constitutional issues.
Chimbalanga and Monjeza were tried and found guilty on May 18, 2010, and sentenced to serve the maximum of fourteen years. United Nations Secretary-General Ban Ki-moon visited Malawi on May 29, in part to seek their release. Malawi’s president pardoned them that day, bringing about their immediate release. During his visit, Secretary-General Ban also met with members of Malawi’s parliament, urging them to repeal the archaic laws that discriminate against minorities such as LGBTs.
Though free, Chimbalanga and Monjeza are now separated. Pressure from politicians, relatives, and religious groups was apparently more than their relationship could take.
The arrest and detention of Chimbalanga and Monjeza attracted worldwide news coverage and support. An international campaign against their continued detention was coordinated by OutRage! in London, Amnesty International, and many other organizations. On the local scene, the campaign was championed by the Centre for the Development of People, the Association for Secular Humanism, and the Centre for Human Rights and Rehabilitation, among others.
Continuing pressure came also from the donor community in Malawi and abroad, including the Norwegian government, the American Embassy, and the Common Approach Program Support (CAPS) donor group, a coalition of local donors. About sixty-five British members of Parliament also signed a petition condemning the arrest and continued detention of the gay couple.
Malawi has a long way to go in protecting the rights of LGBTs. As a first step, however, all that is required is that NGOs and LGBTs come together to fight for LGBT rights. The Malawian judiciary must be challenged to clarify the ambiguity between the constitution’s section 20 and the government’s penal code. After that, changes must be proposed to the Malawi Law Commission so that archaic laws criminalizing the being and actions of LGBTs can be repealed.
In a democratic Malawi, all people are born equal as human beings; minority rights and interests must be protected and discrimination must not be allowed.
LGBTs are human beings and should be treated with dignity. LGBTs are entitled to the minimum level of treatment that acknowledges their humanness. They are entitled to live without unnecessary interference from others. They are entitled to protection from other people’s attempted interference with their lives. At the Association for Secular Humanism in Malawi, we are positive that the winds of change regarding LGBT rights are blowing across the world, and that Malawi will soon take its place in that world by repealing the unconstitutional laws that violate LGBTs’ human rights and criminalize their actions.