Malawi’s constitution clear on gay rights but politicians aren’t

Are Malawians, apparently, overwhelmingly prejudiced against homosexuality? And what does it signal when politicians call for a referendum on the issue of homosexuality?

Recently, a number of presidential candidates for the 2014 elections have proposed a referendum to decide on the fate of homosexuals in Malawi. What precisely is to be decided is unclear: that homosexuality exists, that homosexuals have rights, that homosexuals should be punished or even condemned to death, as some religious leaders have advocated?

The consequences of a homophobic vote could see persons who engage in homosexual acts continuing to face jail terms of up to 14 years, or further tightening of laws that currently criminalise same-sex sexuality.

In Malawi, homosexuality is possibly the most divisive issue in current public discourse. Globally, the persecution of lesbian, gay, bisexual and transgender (LGBT) people is an atrocious reflection of continued, and often state-sanctioned, exclusion, marginalisation and prejudice. At the same time, recent debates suggest a need for better understanding and alternative solutions.

A lack of knowledge and information, compounded by an unwillingness to understand the realities of homosexuality, has resulted in our political and religious leaders’ failure to appropriately address the issue and those lives most affected.

In May 2011, in her state of the nation address, President Joyce Banda asserted that the provisions of the penal code that criminalise homosexual acts should be repealed. In November 2012, during a public debate, the justice minister announced the suspension of sodomy laws.

Since then, some political parties have indicated they would oppose any move to decriminalise homosexuality, and a number of religious and traditional leaders have expressed similar sentiments. Interestingly, the Malawi Human Rights Commission has not made its position clear on homosexuality as a human rights matter.

As a basis for deciding how to vote, the public has demanded that presidential hopefuls come out of their shells and state how they would deal with LGBT people should they come to power – based on their actual views rather than on mere rhetoric or propaganda.

Presidential candidates Lazurus Chakwera, of the Malawi Congress Party; Atupele Muluzi of the United Democratic Front; and Peter Mutharika, of Democratic Progressive Party, concur that Malawians should be afforded the opportunity to decide on the issue directly, through a referendum.

However, whether LGBT people have the right to be protected from discrimination does not require a vote. The answer is already enshrined in the Universal Declaration of Human Rights and in the constitution of Malawi.

Section 4 of the constitution guarantees “all peoples of Malawi” to the equal protection of the constitution and the laws made under it. Section 11(2)(c) provides that courts of law in Malawi shall, when interpreting the provisions of the constitution, have regard to current norms of public international law and comparable foreign case law.

Section 20 of the constitution affirms the equality of all persons before the law. It also prohibits “[d]iscrimination of persons in any form is prohibited and all persons are, under any law, guaranteed equal and effective protection against discrimination on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, property, birth or other status”.

Therefore, any legal provisions that violate human rights, as is the case with those that criminalise homosexuality, must be repealed by the relevant authorities, irrespective of whether the majority of Malawians support such a move or not.

The constitution also asserts that legislation may be passed to address social inequalities and to prohibit discriminatory practices, and that the propagation of such practices may be criminally punishable.

In other words, the government is obligated to respect and protect the rights of LGBTs by, amongst others, repealing “bad laws” that impinge on LGBT persons’ equalities and freedoms. This is both a constitutional obligation and a human rights obligation.

Human rights are not negotiable. As such, politicians’ calls for a referundum on the human rights of LGBT people is unnecessary and is therefore a crafty propaganda ploy under the guise of promoting principles of democracy. It seeks to evade recent calls by some, including the Centre for the Development of People and its partners, for political leaders to declare their positions in the face of homophobia and the persecution of the LGBT community.

Continued discrimination and violence against and criminalisation of LGBT people is particularly shameful precisly because the constitution is clear in outlawing discrimination on the basis of sex, gender and any other status. The Malawian government is thereby compelled to repeal the sodomy laws and put in place deliberate policies to protect the rights of LGBTI persons because, as we have seen, such laws fuel homophobic violence.

In a groundbreaking move, the high court recently announced its intention to review the constitutionality of the sodomy laws, more specifically the cases of three individuals who were convicted and sentenced under these laws in 2011. The court has also issued a call to local and international civil society organisations, the Malawi Law Society, Malawi Human Rights Commission, and other interested parties, to apply to join the matter as “friends of the court”.

The review, due to take place next month, presents the opportunity for the court to bring the law in line with the constitution, rather than leaving matters of life and death over to political propagandists.

Trapence is the executive director of the Centre for the Development of People (CEDEP) in Malawi. CEDEP is a registered human rights organisation dedicated to addressing the needs, improving the lives, and providing support for some of Malawi’s most neglected minority groups.

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