The new Section 137A, titled “Indecent practices between females”, states that any female person who, whether in public or private, commits “any act of gross indecency with another female”, shall be guilty of an offence and liable to a prison term of five years.
“When President Bingu wa Mutharika signed Section 137A into law, he further entrenched sexual orientation discrimination in Malawi”, Alli Jernow Senior Legal Advisor for Sexual Orientation & Gender Identity Project in the International Commission of Jurists (ICJ) said.
He added, “Criminalisation of private sexual activity between consenting adults of the same sex, whether women or men, runs counter to Malawi’s obligations to protect the human rights of all citizens of Malawi, regardless of sexual orientation. If used to prosecute women for their private consensual sexual relationships, the new law threatens the universal rights to privacy and freedom from discrimination.”
He further stated that the ICJ deplores criminalisation of consensual sexual conduct between adult women as a violation of human rights and fundamental dignity.
“The ICJ calls on the Parliament of Malawi to work for immediate repeal”, Jernow said.
Indecent practices between males are already criminalised in Malawi. Parliament made amendments to the country’s Penal Code in November 2010 to criminalise lesbian relationships.
Malawian Justice Minister George Chaponda told Nyasa Times that “women are also committing indecent acts” and that the amendment was made because it was gender sensitive as it only mentioned men thus government wanted to include women to “ensure that homosexuality is criminalised without discrimination.”
“By adding ‘indecent practices between females’ to the Penal Code, the Republic of Malawi has not only acted contrary to its own human rights obligations, it has contributed to the severe stigmatisation and discrimination experienced by gay and lesbian Malawians. All laws criminalising consensual sexual activity between adult same-sex partners should be repealed”, the ICJ stated.
“When will this ever stop?” Kasha Jacqueline, Executive Director, Freedom and Roam Uganda questioned.
“Malawi is the poorest country in the SADC Region and one of the poorest in Africa, so is sexuality their priority or the most pending problem? Or this is a way in which their current President Bingu wa Mutharika wants to up his public rating. It is common knowledge that he has spent the last few years making life hard for his female Vice President Joyce Banda a non-apologetic Feminist and member of African Feminist Forum, where is Africa heading?” Salome Nakaweesi-Kimbugwe, Executive Director for the feminist organisation Akina Mama wa Afrika (AMwA) questioned.
It has been reported that President Bingu wa Mutharika’s stance comes after reports that Germany and the United States were threatening to withdraw aid to Malawi following its failure to repeal laws criminalising homosexuality.
“We are not ready to change the laws to satisfy donors. We have to understand that as a country we need to have certain principles for the benefit of the country”, Chaponda told Nyasa Times.
UN Secretary-General Ban Ki-moon had earlier stated that “Laws criminalising people on grounds of sexual orientation and gender identity, violate the principle of non-discrimination. They also fuel violence, help legitimise homophobia and contribute to a climate of hate.”
In 2010 Tiwonge Chimbalanga and Steven Monjeza were the first openly gay couple in Malawi to get engaged. They were arrested, prosecuted and convicted of indecent practises, sentenced to 14 years in prison before receiving a presidential pardon.
Kaleidoscope, the South African Youth Network advocating for gay rights particularly in tertiary institutions, has also petitioned the Malawian government stating it can not stand by and watch Mutharika encouraging further hate in the African continent.
“Using morality as an excuse to avoid matching Malawian Human-Rights law with that of other progressive nations is nothing short of hypocrisy. How can it be moral to limit the rights of Malawian citizens? These actions encourage conditions that will endanger their(gays and lesbians) lives, perpetuate hate crimes, and maintain a climate of intolerance”, the network said in a petition.
“We refuse to commit to acceptance or apathy in the face of a crime against Human Rights, we demand that President Mutharika answers for his actions. Gay rights are human rights, you have miserably attempted to deny this, but at some point you must realise that truth cannot ever be silenced”, the petition further stated.
Nakaweesi-Kimbugwe concluded, “in part of action, I suggest that we explore how to engage on this in terms of exploring any legal remedies such as a petition through a Constitutional Court of Malawi or international treaty. We need to challenge that clause because it is sexist and against the international human rights standards and we should support Malawian activists to work on an advocacy campaign, learning from what worked in Uganda and Rwanda.”
Article by: Simangele Mzizi