“I am shocked and dismayed by the sentence and reports of the treatment of Steven Monjeza and Tiwonge Chimbalanga while in
detention,” Pillay said. “The law which enabled the conviction dates back to the colonial era and has lain dormant for a number of years – rightly so, because it is discriminatory and has the effect of criminalizing and stigmatizing people based on perceptions of their identity. If this was replicated worldwide, we would be talking about the widespread criminalization of millions of people in consensual relationships and the rampant violation of privacy.”
“Laws that criminalize people on the basis of their sexual orientation are by their nature discriminatory, and as such are in apparent
violation of a number of key international treaties and instruments, including the African Charter on Human and People’s Rights*,” Pillay said “Unfortunately they still exist in quite a number of countries across the world. The trend should be towards getting rid of them, as is the case with other forms of discrimination. Instead, some countries, including Malawi, seem to be heading in the opposite direction.”
The High Commissioner called for the conviction to be repealed and for the penal codes criminalizing homosexuality to be reformed.
She said she was also concerned that this case appears to have stimulated a marked deterioration in official and public attitudes in
Malawi, not just towards individuals perceived as being homosexual but also towards organizations that speak out about sexual orientation and related issues, including ones doing vital work to mitigate the impact of HIV/AIDS.
“I fear the reverberations of this decision, along with the recent attempt to bring in a new draconian bill aimed at homosexuals in
Uganda, could have severe repercussions throughout the African continent,” Pillay said. “It will inevitably drive same-sex couples
underground, and if this trend continues and spreads, not only will it mark a major setback to civil liberties, it could have a disastrous effect on the fight against HIV/AIDS. So, in addition to the serious moral and legal ramifications of this decision, it raises intensely practical problems as well.”
The High Commissioner dismissed the argument that non-discrimination against people on the grounds of sexual orientation is a cultural issue. “It is a question of fundamental rights,” she said, “not one of geography, history or disparate cultures. The protection of individuals against discrimination is pervasive in international human rights law. Why should it be suspended for this one group of human beings?”
(*) Article 2:Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.
Article 19:All peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another.