Asked if the two will be rearrested should they continue with their relationship, Aubrey Mvura, executive secretary of the Zimbabwean Human Rights Commission said “a pardon has not changed the laws, the law remains what it is, you can use your interpretation.”
According to Lesbian, Gay, Bisexual, Transgender, Intersex (LGBTI) rights advocate, Joel Nana “a pardon is defined in criminal law as an official act of forgiving a crime.
Thus, its use as the framework to secure the release of Tiwonge and Steven also serves to reinforce the idea that consensual same-sex activity between adults in Malawi is and remains a crime.”
Nana further stated that “the decision to use a pardon as the framework to secure the release of Tiwonge and Steven could be seen as a clear signal that despite the external pressure on the government to release the couple, the government stands by its view that the two are criminals, according to the laws of the country, but forgives them on humanitarian grounds. Forgiving them for the “crime” they committed, therefore, appears to be the biggest compromise that the government was ready to make.”
The two men were released late last Friday 28 May, having been arrested in December last year following a symbolic same-sex wedding.
Nana compared the Malawi case to a case in Senegal, where the government “bowed down” to pressure from donors and intergovernmental organisations and acquitted two gay men on appeal.
In his argument Nana stated that “while it was clear in the Senegal case that the appeal was not meant to hear the case but rather a way to formally acquit the men due to pressure, the process had more human rights grounding than the Malawi case.”
He added, “The Senegal case affirmed the rights to equal protection of the law, and also upheld that due process has to be followed regardless of the grounds on which one is being charged. This is what the Malawi case fails to recognise although both decisions were made as a result of international pressure. For those reasons, I still don’t think that justice has been rendered.”
Peter Tatchell, a British human rights campaigner from OutRage!, said they are now liaising with Steven and Tiwonge to see whether they want to seek asylum abroad and that they will assist them in whatever they decide.
“I hope the government of Malawi will now show true humanitarian leadership by repealing the criminalisation of homosexuality and enacting laws to protect gay people against discrimination and hate crimes, as South Africa has done”, said Tatchell.
Meanwhile media reports state that Patricia Kaliati, Malawi’s Minister of Gender and Children, said Monjeza and Chimbalanga’s release did not mean they could continue their relationship.
“It doesn’t mean that now they are free people, they can keep doing whatever they were doing, we have our own rules and laws which we are following, and our own constitution,” she said.
She continued to say they could be rearrested if they continue “doing that.”
On a Facebook group, Free Malawians Steven Monjenza and Chimbalanga, Davespads Armstrong a human rights campaigner, said, “whilst Steven and Tiwonge where freed there is still work to be done. For instance, Minister Kaliati says that the law will not change with regards to homosexuality and also if Steven and Tiwonge continue their relationship they will be rearrested and imprisoned.”
“There are also suggestions that Tiwonge has gone missing. My colleagues are speaking with Gift Trapence from CEDEP in Malawi to find out what is exactly happening now in Malawi and whether or not Steven and Tiwonge are safe and well and their thoughts about the future”, said Armstrong.
Addressing Malawi’s National Assembly, just days before the two were released, Secretary-General of the United Nations, Ban Ki-moon appealed to Malawian legislators to reform and repeal laws that discriminate against homosexuality.
“I urge all countries to show moral and political courage in combating discrimination in all its forms. Malawi should be known throughout the world for its successes in combating poverty and hunger, not for outdated laws on homosexuality”, he said.
Human rights lawyers have previously stated that by persecuting the two men Malawi went against human rights laws such as the African Charter on Human and People’s Rights which they are a signatory to.
Article 20 of Malawi’s Constitution, states that “discrimination of persons in any form is prohibited and all persons are, under any law, guaranteed equal and effective protection against discrimination on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, property, birth or other status.”
Chrispine Sibande, a Human rights lawyer previously told SomaliPress.com that the constitution of Malawi’s Article 5 states that where a law is inconsistent with the provisions of the Constitution, it is invalid.
Meanwhile Gays and Lesbians of Zimbabwe (GALZ) have stated that, “President Mutharika’s valiant decision should be emulated by leaders of 33 African states that still have laws that discriminate against people on the grounds of sexual orientation.”
“We urge African leaders to respect, fulfil and uphold the constitutional rights of equality and non discrimination for all citizens including lesbian, gay, bisexual and transgendered persons in the true spirit of Ubuntu”, statement read.
Aknowledging support during the case, Gift Trapence, executive director for the Centre for the Development of the People said “CEDEP would like to thank all for your support on the sodomy case in Malawi, your continued support has seen us victory.”