By Melanie Nathan, July 01, 2024.
Malawi’s Constitutional Court has dismissed the case of two applicants who wanted it to legalize same-sex relationships. The judgment means homosexuality remains an offense in Malawi, punishable by a maximum prison sentence of 14 years.
Malawi State lawyers welcomed the ruling while lawyers for the applicants expressed disappointment. Minority rights activists and religious leaders attended the delivery of the 135 page judgment, which took over six hours.
The applicants, Jan Willem Akster from the Netherlands and a Malawian transgender man, Jana Gonani, brought their case to the Constitutional Court which required the interpretation of Malawi's anti-homosexuality laws following their arrest in 2021.
Akster is currently facing nine charges of sexual abuse and sodomy, while Gonani is charged with unnatural offenses.
The Petitioners asserted that Malawi’s laws violated their fundamental rights, including a right to privacy and dignity.
However, Judges Joseph Chigona, Vikochi Chima and Chimbizgani Kacheche rejected their arguments.
Chigona said the applicants failed to bring evidence of how the provisions in the country's laws discriminated against homosexuals.
Chigona also said Akster failed to prove that Malawi’s laws violated his right to health.
“The first applicant was asked in a cross examination if he had ever accessed a public hospital and replied that he had gone to Zomba Central Hospital after he had been involved in a car accident," Chigona said. "When he was asked about his experience there, especially if he was asked about his sexual orientation before he was assisted, he said he was not. He actually said that he was medically assisted so well. The only complaint he had about the facility were spiders in the ward.”
Chigona said the court also dismissed claims that Malawi police violated Gonani’s right to privacy when they ordered him to undress, to confirm his claims that he was transgender.
In what seems like a stretch, “We know that by Section 24 of Criminal Procedure and Evidence Code that police are empowered to search a suspect who is reasonably suspected of having committed a particular offense and who has been arrested," the judge said. "The caveat is that the search only extends as it is reasonably required for discovering a thing upon this person in connection to the offenses he was suspected of.”
A spokesperson for Ministry of Justice, Frank Namangale told reporters outside the court that the government was happy with the ruling.
In Malawi, it is feared that any form Decriminalization of the anti-homosexuality laws could lead to same-sex marriage which is seen as a societal taboo in Malawi, where 95% of the country assert that they would not tolerate a homosexual neighbor. (Afrobarometer)
In July 2023, religious leaders led street protests across the country against the potential legalization of same-sex marriage.
The Constitutional Court said that the applicants were free to ask parliament to amend the country’s homosexuality laws if they were not satisfied with its judgment. However currently, although there has been decriminalization in nearby Namibia, the entire continent is fraught with a surge in anti-homosexuality laws, resulting in enhanced laws as recently seen in Uganda and Ghana. Whereas Nambia's societal tolerance level is at 56%, Malawi's is at 5%.
Melanie Nathan, AHRC: The ruling is bitterly disappointing on many levels, especially because it does not actually answer the question of constitutionality in an authentic way. The Court has failed to seize the opportunity to assert its independence to uphold the Constitution and advance human rights in Malawi. Instead it takes the side of a government that continues to oppress and persecute the LGBTQI+ a minority social group. The question about receiving healthcare ignores the simple truth that LGBTqI+ people in Malawi cannot get healthcare and are too afraid to seek treatment when they have been attacked in homophobic assaults, or when the healthcare pertains to LGBTQI+ specific issues. So indeed there is discrimination. This is a deep flaw in the evidence that underpins the judgement. The Judges need to be educated by LGBTQI+ people who have fled Malawi seeking protection as refugees in other parts of the Africa, or asylum abroad.
COUNTRY CONDITIONS EXPERT WITNESS
CONTACT: Melanie Nathan, B.A. LL.B commissionermnathan@gmail.com
Melanie Nathan, Executive Director of African Human Rights Coalition is a qualified country of origin expert witness in the United States and global immigration courts, providing expert written country conditions reports and testimony for lesbian, gay, bisexual, transgender, queer, intersex, non-binary, LGBTQI + asylum seekers from African Countries, to include activists, allies and human rights defenders.
Melanie also consults multinational corporations regarding briefings and policy for operations and issue impacted by anti-homosexuality laws and country conditions. SEE HERE CURRENTLY African Human Rights Coalition is supporting safe shelters and food programs for LGBTQI+ refugees in Malawi; Donations can be made here:
Thousands rally in anti-LGBTQ protest in Malawi- 2023.
Lilongwe (Malawi) (AFP) – About 5,000 demonstrators on Thursday staged an anti-LGBTQ protest in Lilongwe, the capital of the conservative southern African nation of Malawi, where same-sex relationships are illegal. HERE
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