Malawi is one of the countries in Africa that has maintained repressive laws that criminalize consensual same-sex conduct in its statute books despite growing condemnation from both local and international human rights organizations that have been demanding the repeal of such laws.
The Penal Code of Malawi (Cap 7:01 of the Laws of Malawi) in sections 137A, 153, 154, and 156 criminalizes consensual same-sex activities between adults in private. As a result, Lesbians, Gays, Bisexuals, Transgender, and Intersex (LGBTI+) people face routine harassment, violence, and discrimination in all aspects of their daily lives.
For example, in a troubling and deeply concerning incident that highlights the ongoing struggle for human rights and acceptance of LGBTI+ individuals in Malawi, a Transgender woman, Jana Gonani reported that she had experienced severe violations of her basic human rights, including discrimination and physical abuse.
Gonani experienced a harrowing ordeal in December 2021 as she was convicted by the Mangochi Senior Resident Magistrate Court for an unnatural offenses contrary to section 153( c ) of the Penal Code. Gonani’s case is currently in the Constitutional Court awaiting judgment following the intervention of Nyasa Rainbow Alliance and its partners on the same. Gonani’s case represents the general plight of LGBTI people in Malawi.
Arrests on the basis of sexual orientation or gender identity occur frequently in Malawi. Thus, the police have been making frequent arrests of LGBTI+ people simply because they are lesbian, gay, bisexual, transgender, and Intersex among others. This has even forced some gay men and lesbians in Malawi to adopt self-censoring behavior by getting married to women, and men respectively to conform to society’s expectations and avoid discrimination because any suspicion of non-conformity leads to disturbing cases of discrimination, harassment, and humiliation to say the least.
There have also been persistent reports of human rights violations of LGBTI+ persons by the police including unlawful detention, extortion, and physical violence in detention. Furthermore, the Police also seldom render assistance to LGBTI+ persons who have been assaulted because of their status, or for any other criminal complaint they may have. Instead, they threaten to reveal the complainant’s sexual orientation to family members, friends, or colleagues to obtain a confession.
Some police officers have also been forcing some LGBTI+ detainees to undress in front of such officers for purposes of genital verification without their consent like the case of Jana Gonani.
While efforts have been made to address these issues, the environment remains hostile for many LGBTI+ individuals such as Gonani. This shocking display of intolerance highlights the urgent need for greater awareness, education, and legal protections for LGBTI+ people in Malawi.
The violation of LGBTI+ rights, including the right to live free from discrimination and violence, is a matter of grave concern and should not be tolerated in a country that is sworn to protect each and every citizen from harm of any kind.
Discrimination based on gender identity or sexual orientation is not only morally wrong but also violates the regional and international human rights standards which puts Malawi in a controversial position as the men and women sworn into protecting the citizens are turning a blind eye to human rights abuses of LGBTI people.
Nyasa Rainbow Alliance has put in efforts to create a safe environment for LGBTI+ people through strategic litigation like the Jana Gonani case, and other interventions such as holding space for pride marches, check-in projects on the well-being of the people in the community, and also assisting those who face physical attacks in their cities.
Eric Sambisa, the executive director of Nyasa Rainbow Alliance says the Jana Gonani case does not only offer an opportunity to the Constitutional Court to repeal discriminatory laws that unfairly target members of the LGBTI community simply because of who they love, but is also a historic moment in our journey to equality for all Malawians.
According to Sambisa, LGBTI+ people are just as human as everyone else, they breathe the same air, and they require the same human rights that are being enjoyed by any other citizen in Malawi.
“The LGBTI people are not looking for special services or treatment. All they are seeking is to enjoy life in a safe and inclusive environment.” He said.
Sambisa also said the Jana Gonani case is not about the legalization of same-sex marriages or registration of LGBTI-led organizations as it has been reported in the public domain. He said the case is about the repeal of section 153 of the Penal Code which is fueling harassment and discrimination of LGBTI people in Malawi.
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