Malawi sex laws problematic on several fronts- Legal expert

As debate continues on same-sex marriages in the country, Lewis Banda, lecturer in law at Chancellor College, weighs in by questioning the relevance and justification of the law used to regulate sexual activities in the country.

Of law, adults and sex

Of law, adults and sex

By now, most Malawians have an idea that the law in the country criminally prohibits homosexual activities. So, men are prohibited from having sex with men and women with fellow women.

Anecdotal evidence suggests that most Malawians actually support the law’s stance on this.

I am pretty sure it may come as a surprise to most Malawians to learn that the law does not only tell people with whom to have sex with, but also how to do so.

Hence, it is not only a crime to have sex with someone of your own sex, but also to have sex with someone of the opposite sex contrary to what the law prescribes.

This begs one simple question: Is it a good policy for the law to regulate how consenting adults should have sex?

I want to address this question by reference not to the well-known homosexual offences, but to the less known offence of having sex against the order of nature, which also targets heterosexuals.<

Briefly summarised, our law prohibits people-including heterosexual couples-from having sex contrary to “the order of nature.” It matters not that the people involved are consenting adults, or that the sexual activity happened in private. Hence, a legally married husband and wife can be arrested and punished if they have consensual sex in the privacy of their matrimonial bedroom contrary to order of nature.

Oddly, the law does not tell what sexual activities are in accordance with the order of nature, and those that are not. This has been left to the police and courts to decide. Can one imagine that: the law has recklessly left it to the police and courts to decide what sexual activities between consenting adults are permissible and which are not?

This law’s attempt to regulate how consenting adults should have sex is problematic on several fronts. Limitations of space mean that I can only discuss one of these: respect for human rights, particularly the rights to dignity and privacy.

The idea that adults should be told how to have sex and, worse still, to be punished for having sex as they wish in the privacy of their bedrooms, is not only demeaning, but also an assault on their dignity. With the offence in the statute books, it means that adults should constantly cross-check with their lawyers, or even the police, before trying new things in their bedroom.

More indignity awaits those who are arrested and prosecuted for this offence. To be questioned about your private sexual life, even with your legally wedded spouse, and to be put through a public criminal trial over what you did with your legally wedded spouse in the privacy of your matrimonial bedroom, can  shatter every person’s sense  of dignity.

Further, the enforcement of this offence inevitably involves serious violations of the right to privacy. An individual’s sexual life constitutes the core of his/her right to privacy. Accordingly, any interference with a person’s private sexual life is an assault on that right. Such interference can only be justified on very strong grounds.

Now, every stage in the enforcement of this offence involves a serious violation of the privacy rights of those concerned. One can just imagine the type of evidence that will have to be adduced to prove such an offence, or how such evidence will be collected by the police. The police will have to invade the sanctity of people’s bedrooms and peep under the blankets, to see how they are having sex. That is a serious violation of people’s privacy.

Besides constituting a serious violation of the dignity and privacy of those arrested or prosecuted for this offence, it is just hard to imagine any benefits the society in general derives from this needless sexual censorship. We are not worse off as a society because people want to have sex as they wish. The criminalisation is, therefore, deeply flawed and misguided. The sexual activities of consenting adults done in private should never be a prosecutable offence. It does not matter whether those adults are homosexuals or heterosexuals.

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Benjamin nkhwenje
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Benjamin nkhwenje
8 months 11 days ago

U must arrest both of them they r stupid

Big Boshah
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Big Boshah
8 months 13 days ago

Ts All About Money, Ohh Loard Plz Review Ur Lawz To Nyasaland.

clement wejah
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clement wejah
8 months 14 days ago

this is stupidness at its bets leve…marriage is a dignified institution,therefore we must espect what is happening in and then our country will experience hamony in this issues.

arthur
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arthur
8 months 16 days ago

we us malawians we respect gods nature lets do something about it in my opinion let god fight for us coz we know i culture n who are we rear

Ingangasyungu Yunyeghela
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Ingangasyungu Yunyeghela
8 months 16 days ago

Does stealing happening publicly? Mapazi ako.

Angoni apaphata
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Angoni apaphata
8 months 16 days ago

You fool. The constitution is based on the bible. So even if you are in your bedroom what is wrong doesn’t become right. Idiot

Chikondi Medson
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Chikondi Medson
8 months 17 days ago
Nice and good but one needs to be careful with the “privacy” and “dignity” argument. There are things that happen in private that are and should be, rightly, condemned. If you think about it most crimes take place in private. On the sexuality question, we must ask who makes laws in a country and we should go to those to see if they would like to change this particular law in Malawi. Should a case of appeal be occasioned, I imagine it will be on the Human Rights cause, from the Human Rights point of view the matter should be… Read more »
Danger Chipino
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Danger Chipino
8 months 17 days ago

Kodi tasiya kuti zija timanama kuti Malawi ndi dziko lowoopa mulungu. Bukhu loyera likukana za Sodomu ndi Gomorazo, opezeka akugonana ofana ziwalo amangidwe kapena aphedwe, omwe timati ndiozindikira aja ndi zisiru. M’ sonda call for demo we are with you.

Mtendere
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Mtendere
8 months 17 days ago

Alekeni Akukwanilisa Malembo Koma Tsoka Ammene Akukwanisayo

Aningo
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Aningo
8 months 18 days ago

Brilliantly argued, not unnecessarily coloured with unhelpful emotions or hypocritical claims to religiosity or culture. Give one more piece please. I also feel those arguing against homosexuality should say something concrete on the “carrot” that has been dangled by our Western friends. I am saying this because we may find ourselves unwittingly “conspiring” to murder many poor Malawians who may have been helped by this money

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