Malawi: Thinking Beyond a Moratorium On Prosecution of Same-Sex Sexual Acts in Malawi

On March 15, 2016 allafrica.com reported: In 2012, we saw a shift in the policy of the Executive branch of the Malawian Government towards sexual minorities. It committed itself to upholding regional, international and fundamental human rights obligations.

In line with this, former President Joyce Banda imposed a moratorium on all arrests and prosecutions of consensual same-sex practices under the Malawian Penal Code. Section 153 of the Penal Code provides that any person who has (a) canal knowledge of any person against the order of nature; or… (c) permits a male person to have carnal knowledge of him or her against the order of nature shall be guilty of a felony.

Early in January 2016, the moratorium was reaffirmed in a statement released by the Minister of Justice. He confirmed the Executive’s commitment to the advancement of human rights, as enshrined in Constitution of Malawi. He also declared that there would be a review of the Penal Code’s criminalisation of same-sex practices. He further, stated that:
“The Constitution of Malawi represents the collective wisdom and values of the people of Malawi… Malawi as a member of the international community is also committed to adhere to universally accepted human right standards… Government has also consistently invited civil society to carry out intensive sensitization campaigns on gay rights, as the concept is alien to Malawian culture since the previous two attempts the change the law met with stiff resistance from the general public… ”

The Executive’s reaffirmation of its commitment to the protection of the human rights of sexual minorities, and in particular consensual same-sex practices, arose due to the arrest of two men suspected by members of the public of engaging in same-sex practices. Reportedly, members of a neighbourhood group forced their way into the couple’s home, ransacking it.

Police authorities then forced the men to undergo medical tests for HIV and other sexually transmitted diseases, before finally charging them with sodomy. Charges were subsequently withdrawn against the two men after an intervention by the Minister of Justice, due to his commitment to imposing the moratorium.

In February 2016, notwithstanding the efforts by the Executive, the realisation of fundamental rights for sexual minorities in Malawi was thwarted, by a group of religious leaders who obtained an interim order to stay the operation of the government moratorium.

The interim order has resulted in police officials being given the go-ahead to arrest persons suspected of engaging in same-sex practices. This will continue to be the case until the courts determine the lawfulness or not of the moratorium issued by the Executive. It is argued that the moratorium is unlawful as it was not enacted through a declaration by Parliament.

Read more at Malawi: Thinking Beyond a Moratorium On Prosecution of Same-Sex Sexual Acts in Malawi – allAfrica.com.

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