Malawi: Mistreatment of accused homosexuals

The reality in Malawi is that an overwhelming majority of Malawians oppose homosexuality. That position is supported by our own laws that do criminalize homosexual practices. Its pretty much straight forward then that if you engage in homosexuality as Tiwonge  Chimbalnaga and Steven Monjeza allegedly did, then the law will act accordingly.

So there isn’t much to disagree on with those who say Tiwonge and his partner should have known better.

However, there is another important facet of the gay-couple’s case that has been brought to light, that folks can agree on—the respect for rights of the accused.

To begin with, the way the couple has been treated, even the most anti- gay person out there would acknowledge that our police and the court have not handled this case the right way.

Passions and prejudices have gotten in the way of professionalism and fairness.

Respect for human rights and the notion of innocent until proven otherwise have completely been forsaken.

Every one probably agrees this case has, as it probably should, elicited intense passions from both sides of the gay rights subject.

But, regardless of one’s position on the subject, we all want or expect the authorities involved especially the court and the police to travel a higher road. They must stand above these passions and prejudices. This certainly has not been the case.

The court, in particular Judge Nyakwawa Usiwa Usiwa has been an abject let-down not only to the legal fraternity but the nation as whole.

From the onset, the judge has given every indication that he is hell bent on tormenting the two accused individuals. Among others, his decision to deny them bail , on a bailable offense like this and citing their safety or lack thereof as the reason, is not only cruel but demonstrates a complete lack of respect for human rights. This judge has taken extremism to new heights.

On the confirmation hearing of Justice John Roberts, the then junior Senator from Illinois Barack Obama alluded to the difficult tasks Judges face when deciding on difficult cases.

He concluded “………In those difficult cases the critical ingredient is supplied by what is in the judge’s heart”.

Judge Nyakwawa has not rendered his verdict yet and this may not rank as a difficult case to come before him but we now know the make-up of his heart. It is devoid of any bit of compassion and conscience.

It is also very troubling that our police, who in recent times have undergone several DFID funded training programs to improve on their performance and human rights record, have treated these two citizens as if they were worse offenders than the ‘Nachipanti’ criminals.

While some people may be quick to point out that its actually mundane for our police to beat up people under custody, one wonders the motivation for torturing two men who have not harmed anybody and who by any stretch of imagination are not hard core offenders?

Is it not frightening that they actually considered forcing the two to undergo an anal examination just to establish whether they had intercourse or not? I won’t be surprised if DFID would soon be asking for a refund.

But here is the thing: while this inhumane treatment of the gay couple has drawn widespread international condemnation, most local human rights folks or watchdogs have surprisingly been tight- lipped.

Now some people are beginning to ask questions? Why have they been mum on an issue that strikes to the core of their existence? Could this be a genuine case of moral conflict? Or is it a case of trying to maintain their relevance to an overwhelmingly anti- gay constituency without running the risk of upsetting their Western donors?

Whatever the reasons, as human rights advocates, they have been a big disappointment and their credibility has definitely been dented. They are the ones who should have been in the forefront agitating for respect of the couple rights as the legal process plays out.

Right now, it’s not surprising that the biggest scandal of this case is not the actual arrest of the two–it is actually what has transpired afterwards. Lack of respect for human rights by judges has clearly overshadowed the legal aspect of the case.

When you have police officers failing to exercise restraint or curb their prejudices  and go on to torture two harmless  citizens, then that is troublesome.

More importantly when you have folks whose work calls them to stand up for the two but for some reason don’t have the nerve to do that, then that is definitely worrisome.

Some of us vehemently oppose gay marriage but would like gay issues to be tackled in a more sober, civil and tolerant manner with due respect to human rights and the law of the land.

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