LGBTIQ Rights Debate in Malawi

Malawi is currently facing a heated human rights debate on "homosexuality."

This highly charged debate has been dominated by a loud majority calling for rejection of homosexuality, with a minority urging recognition and protection of human rights for LGBTIQ people

Against the backdrop of this debate, on December 7 Kelvin Gonani and Cuthbert Kulemela  were arrested and charged with the penal crime of engaging in ‘unnatural acts.’  On December 15, U.S. Ambassador Virginia Palmer issued a statement on the U.S. Embassy Facebook page, expressing concern about the arrest. The statement was met with public outrage accusing her of interfering in Malawi’s internal affairs.

On December 19, the government dropped the charges against Gonani and Kulemela and reiterated a moratorium on anti-gay arrests. On January 1, Eric Chamwana and an anonymous person, both gay Malawians, appeared on television narrating stories about their sexual orientation. Two days later, a prominent Malawi politician reportedly called for the killing of gay people..

The situation marks the re-emergence of a heated debate from 2009 following the arrest and conviction of Tiwonge Chimbalanga and Steve Monjeza for performing a traditional (gay) wedding ceremony.

The debate over ‘homosexuality’ is dominated by rhetoric and so far it has been difficult to reach compromise or resolve. However, this time around the Malawi Government is encouraging constructive and inclusive debate for the nation to arrive at informed decisions.

Within this debate, Malawians are confronting whether Malawi should legalizehomosexuality.  Some are also debating whether Malawi should legalize gay marriages. The debate also focuses on the question of whether Malawi should introduce a new ‘gay rights,” literally translated as a ‘right to do or be gay.’ These are rhetorical questions as not even LGBTIQ people themselves are demanding a new law to legalize homosexuality or gay marriages.

A minority of Malawians are debating whether Malawi should repeal anti-gay laws,which currently regulate same-sex identities, or criminalize consensual adult same-sex conduct. They are also debating whether human rights contained in Chapter IV of the Malawi constitution extend to LGBTIQ people. They are debating, for example, whether an LGBTIQ person in Malawi has equal entitlement to the rights to education or health, for example.

These distinctive debates are so unique in their singularity that they cannot be addressed as one debate. For example, the question of whether homosexuality should be legalized does not respond to the question of whether anti-gay laws should be decriminalized. Similarly, the distinction between ‘human rights for LGBTI people’ and fictitious ‘new gay rights’ is crucial in order to distinguish between substantial and rhetorical questions. Simply put, the rhetorical questions provide no answers to the substantive questions. The rhetorical questions should be discarded in order to achieve substantive debating for any prospect for compromise or resolve.

 

Western Interference?

The public outrage towards Ambassador Palmer’s Facebook statement provides a snapshot of the prevailing African myth that Western actors are imposing ‘the new gay rights’ on Africa..  

Ambassador Palmer raised three key points in her statement: that rights for LGBTIQ persons are human rights; that LGBTIQ persons should not be discriminated in any way; and that dropping the charges would make the government compliant with international human rights obligations.

In response, some Malawians argued that gay acts in Malawi are criminal as well as against the country’s culture and religion. Some respondents even went further to demand for her to leave the country.

Although the terminology of ‘gay rights’ is a relatively recent term in Malawi, what Ambassador Palmer implied was that since Malawi has a constitution with a bill of rights, it is important for those rights to extend to LGBTIQ people.

In practice, she proposed that Malawi recognize the human rights of LGBTIQ people, such as the right to health, education, privacy, dignity, and equality. Also implied was that jailing consenting adults is an obstacle to these rights.

Unless similar issues have not been raised by Malawians, it is incorrect to accuse her of imposing anything on Malawi.

Malawi’s (real) Policy on LGBTI Rights

The majority of Malawians believe that as a country, it should not compromise on ‘homosexuality.’ However,government’s policy has been progressive on LGBTIQ rights for over a decade now.

In 2003, the first democratic government developed Malawi’s first-ever National AIDS Policy (NAP) in which it noted that mechanisms should be put in place to avert the vulnerability of people engaged in same-sex relations. The National Strategic Plan on HIV and AIDS (2011- 2016) identified criminalization of consensual adult same-sex as a barrier to the HIV and AIDS response. The current National Strategic Plan on HIV and AIDS (2015- 2020) has an objective to review laws criminalizing same-sex conduct.

It is no coincidence that state officials have spoken in support for LGBTIQ rights. In 2009, before the so-called gay wedding by Chimbalanga and Monjeza, the Principal Secretary at the OPC responsible for HIV and AIDS stated at a national HIV conference that protecting the human rights of homosexuals was necessary for an effective HIV and AIDS response.

In 2012, Malawi President Dr Joyce Banda proposed the repeal of anti-gay laws. In the same year the Minister of Justice announced a moratorium on gay arrests.

In 2014 the Solicitor General reported before the UN Human Rights Committee that funding constraints were stalling government plans to review anti-gay laws. In 2015 the Attorney General was reported to have affirmed that gay people have a right to health.

Donors may be raising concerns about human rights for LGBTI people, but the issues that they raise are not different from those found in government’s HIV and AIDS policy and strategies.

Complexity of LGBTI Identities

Terms such as gay or homosexual or LGBT or LGBTIQ are inadequate to describe those who define themselves as apart from the sexual norm in Malawi. Locally there are no terminologies for sexuality or homosexuality. The meaning of homosexuality or LGBT or LGBTIQ depends on the (mis)interpretation according to each individual’s localized imagination. As such, the meanings of homosexuality vary for different Malawians. Most Malawians associate homosexuality with non-consensual anal sex involving at least one adult male. It is rarely associated with consensual conduct, love or non-sexual activities.

However, sexualities that transgress the heterosexual norm in Malawi are complex. Some LGBTIQ people have relations with people of the same sex. Some have no relationships at all. Some live a heterosexual sexual life but prefer to live as someone of an opposite gender. Some have relationships with people of male and female genders. Some transgress heterosexual norms. Some transgress such norms due to biological or medical reasons (e.g. intersex people).

These complexities of identities and practices demands caution against generalizing about the people being targeted for persecution. Such persecution, which should be condemned in its entirety, may at times extend to unintended targets.

Criminalization of Homosexuality

In Malawi ‘homosexuality’ is criminalized under sections 137A, 153 and 156 of the Penal Code. Same-sex identities are restricted by the Marriages, Divorce and Family Relations Act.  

Most debate that rejects homosexuality focuses on same-sex acts as alien to the religion or culture of Malawi. It is important to reflect on whether homosexuality is alien.

In fact, Malawi has a long history of homosexuality. The Chichewa word for anal sex (Mathanyula) has had influence on terminologies that emerged in neighboring countries as a result of the pre-colonial migration of migrant laborers.

And even apart from religious arguments used to reject homosexuality, imagine a world where all things contrary to religion warranted criminalization or jail terms in Malawi?

For example, would people stand for long jail terms for drinking alcohol or smoking tobacco or for having sex before marriage?

Religion promotes unreserved compassion and love even towards so-called sinners. For example the Catholic Catechism teaches that homosexuals must be accepted with respect and discrimination should be avoided. Religion, therefore, does not support punishment and criminalization of LGBTI people.

Similarly, imagine if sanctions were similarly applied in terms of culture. What criteria would we use to choose which cultural digression would result in being condemned to jail? The Malawian humanist philosophy of uMunthu, which is part of Malawi’s culture, promotes inclusion and compassion. For example, Tiwonge Chimbalanga coexisted with her local community until the law said she was a criminal. Punishment was unnecessary in Malawi’s cultures until the colonial penal laws were introduced.

The debate about ‘homosexuality’ is highly contentious in Malawi. However, contrary to common belief, Malawi government’s HIV and AIDS policy and strategies have supported decriminalization of anti-gay laws for over ten years now.

Malawi already knows that the majority population rejects the idea of homosexual conduct based on religious and traditional assumptions. Malawian LGBTIQ people are not asking for legalizing homosexuality or gay marriages. In order to facilitate constructive debate aimed toward sustainable resolve, the question should not be about whether a person in Malawi has a right to ‘practice being gay’ or whether to ‘legalise homosexuality.” The substantive question should be whether LGBTIQ people are equally entitled to constitutional rights and if criminal laws are an obstacle to such entitlement.

There are practical alternatives from religion and culture that can enable us progressively address this issue. We Malawians have the capacity to resolve this issue on our own terms.

To achieve positive sustainable outcomes, we must discard rhetorical issues and focus on the substantial ones.

Alan Msosa is a Commonwealth Scholar funded by the UK government. He is currently studying for PhD in Human Rights at the University of Essex Human Rights Centre in the UK. His research analyses variation in how human rights is understood and applied locally when addressing contentious issues such as LGBT rights. For updates about LGBTIQ rights in Malawi, please follow him on twitter.