Malawi government has dropped all criminal charges against two men who were facing up to 14 years in prison, on allegations that they engaged in homosexuality acts in a suburb of Area 25 in the capital Lilongwe.
Malawian police arrested 19-year-old Cuthbert Kulemeka and Kelvin Gonani (37) and were charged with sodomy.
Their arrest attracted international condemnation with Human Rights Watch and the US government saying the arrest was against human rights commitments Malawi pledged to adhere to.
On Saturday Malawi’s Minister of Justice Samuel Tembenu said all charges have been dropped for the two men and said Malawi is committed to adhere to “universary accepted human rights standards.”
Tembenu said Malawi government acknowledged the views expressed by international human rights bodies that the government should instruct the police that no one should be arrested on the grounds of their real or perceived sexual orientation or gender identity.
The Justice Minister said Malawi government has committed itself to review colonial-era “sodomy” laws and possibly rid itself of this disgraceful colonial relic.
However, Tembenu said the process will be done “in consultation with the people of Malawi as prescribed by the Constitution.”
Tembenu said in line with the commitment to review the anti-homosexual laws, Malawi government has suspended laws against same-sex relationships pending a decision on whether to repeal the legislation.
He said government has “imposed a moratorium” not to arrest or prosecute homosexuals.
But repealing the legislation would be an unpopular move with many church leaders, as well as the wider population.
Tembenu called on civil society organisations to carry out “intensive sensitisation campaigns on gay rights”; saying homosexuality is “alien to Malawian culture.”
He said investigations on the two men indicated that their case was not about gay sex but “the evidence indicated a case of indecent assault” arguing that prompted the Police to require medication examination to establish the truth.
“The ministry has not detected any prejudice or malice on the part f the conduct of the police,” said Tembenu.
Justice Minister appealed to international community to fully appreciate that the review of gay laws is “a highly sensitive matter” that requires understanding and accommodation of diverse views before it is fully resolved.
Gift Trapence, from the Centre for the Development of People (CEDEP), welcomed the announcement to suspend anti- gay laws as “an encouraging step” forward.
He said: “It is difficult to offer HIV and AIDS services to homosexuals when there are sodomy laws on the other hand.
“The same government is crimalising same-sex relationships and the same government wants to help them. This does not make sense.”
Malawi is a signatory to a number of instruments that protect people in same-sex marriages, including International Convection on Civil and Political Rights that guarantees the right to privacy and non-discrimination of all people.
Chapter IV of the Malawian constitution guarantees every person’s right to liberty, dignity, and security of person. Article 20 prohibits discrimination on all grounds, and article 21 guarantees the right to privacy. Section 153 of the Malawian criminal code, which criminalizes consensual sexual conduct between adults, and section 156, which criminalizes “indecency” in both public and private, directly violates the right to privacy.
These criminal law sections are also contrary to international human rights standards. Specifically, article 2 of the African Charter on Human and People’s Rights prohibits discrimination on all grounds; articles 3 and 19 secure for all the right to equality; and articles 5 and 6 guarantee the right to dignity and liberty.
In 2010, two Malawian men were arrested and charged with public indecency after saying they were getting married.
The prosecution drew international condemnation and led to some donors withdrawing budget support – a major blow to one of the world’s poorest countries.
The then-president Bingu wa Mutharika – who died of a heart attack in 2012 – pardoned both men on “humanitarian grounds” but said they had “committed a crime against our culture, against our religion, and against our laws”.Follow and Subscribe Nyasa TV :