Malawi referendum on gay rights does not make sense

In the first place, let me make it clear that I am not a human rights activist, and I do not advocate for gay rights, on the contrary, I just love to analyze and share my opinions on every issue that serves the interests of Malawians.

Second, my arguments are not based on the Bible or the Qur’an, neither do they reflect my religious views. This is purely a political opinion. Therefore, please restrict your understanding to ideals of democracy and human rights alone.

Now, a couple of days ago, President Mutharika responded to the question on the decriminalization of homosexuality in Malawi by reminding the nation that should a time come to consider the legalization of gay rights, Malawians will have to decide through a referendum.

Earlier in 2012, president Joyce Banda urged Parliament to repeal anti-sodomy laws and later in 2013 she suspended laws that criminalize homosexuality through her Minister of Justice, Ralph Kasambara. And between 2010 and 2012, President Bingu wa Mutharika simply said no!! to homosexuality. He punished homosexuals with the maximum penalty and even referred to homosexuality as disgusting (zonyansa) satanic (zausatana) and nonsense (zauchitsiru).

The point here is that Bingu and Joyce Banda, just like nearly all Presidents in Africa, made clear what their position was on the matter. They were either clearly in favour of gay rights or clearly against the issue.

But Peter Mutharika prefers a referendum on the matter for obvious political reasons not because he believes it’s the right option. He knows very well what happened to his brother the moment he took a strong stance against gay rights. Bingu’s open defiance against the legalization of gay rights in 2010 was one of the very first issues that pushed him into an unexpected fight with the donors and the beginning of his fall. Joyce Banda too, knew very well that the issue of gay rights had brought down her predecessor’s government, and in order to avoid a fight with the unbeatable donors, she took a clear stand in support of gay rights.

Just like Banda before him, Mutharika is trying to escape a confrontation with donors by refusing to take responsibility over the matter. But unlike Banda who was ready to wrestle with Malawians by pushing the matter to Parliament, Mutharika does not wish to confront Malawians either. So the referendum grants him a comfort zones where he can relax and let Malawians fight his battle knowing that neither donors nor Malawians will hold him responsible and answerable to the outcome.

Unfortunately, I am 100 percent sure that as a Western trained, professor and practicing lawyer with outstanding repute in the international legal fraternity, Mutharika is very much aware that a referendum stands against the very principle of what ought to be an issue of universal human rights. I strongly believe that gay rights are human rights. I know I am hitting a raw nerve here.

You see, we Africans are the funniest people God ever created; we buy into everything the West recommends for us without counting the cost. Things like Capitalism, Democracy, the United Nations and the Universal Declaration of Human Rights (UDHR), the Rome Statute of the International Criminal Court (ICC) e.t.c, are issues that African governments are without coercion members of, and yet when it comes to paying the price we fall short and begin to blame the West for the same.

For example, according to Article 55(c) of the UN Charter, on the principle of equal rights, the UN pledges “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” And then on Article 56, “All members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.” This means that Malawi which signed the Charter on December 1, 1964 through Kamuzu Banda, has an obligation to comply with the UN or to individually advance the preservation of human rights for all humans.

And according to the principles of human rights as set forth in the United Nations’s UDHR of 1948, a referendum cannot settle a matter of gay rights. Please understand me, I am saying gay rights, and not gay marriage because these are two different things. Gay rights are about the freedom of gays to fall in love, engage in sexual acts, and express themselves publicly without being discriminated against or facing prohibition by the law and this redefines sex, while gay marriage refers to the freedom of gays to wed each other into a legal marriage of husband and wife just like homosexuals do, and this redefines marriage. Anyway, this is beyond the scope of this article.

So what are human rights exactly, and why are gay rights human rights? Most Malawians and Africans know what their rights are, but they don’t know exactly why those rights are human rights and what makes them human rights. In short, human rights are freedoms that humans are entitled to by the virtue of being human. In other words, from the day a human is born, and so long as they have life in them, they are entitled to some freedoms of human rights.

These freedoms first and foremost seek to preserve the dignity and equality of all humans regardless of their gender, skin color, race, religion, or any other status. And since these so called human rights are acquired the moment a child draws in the first breath, they are inherent and the UDHR declares that they are inalienable.

Because human rights are innate, inherent and inalienable, government does not have the power to take them away, because it does not confer them in the first place. The only responsibility of government is to guarantee the preservation of the rights by creating a favorable political and legal framework and this is the utmost objective of a democracy.

Now after understanding what human rights are, do you now understand that gay rights are human rights? To decide if gay rights are human rights, we must first decide if gays are humans or not. Second, we must confirm that gays are naturally born gay or prove that they are not born gay. Third, we must determine that being gay is a sexual orientation or not. And fourth, we must prove that consensual gay relationships do infringe the rights of others, and that such relations are a threat to the security or order of our society.

If you ask me, I will tell you that, gays are not half human, and therefore, they must be accepted as humans. I am not sure that they are born gay or that they are nurtured that way, but since I cannot prove otherwise, then I accept that they are born gay. And if they are born gay, then being gay is a sexual orientation. I also do not believe that a consensual gay relationship between adults pose any threat to any society, neither does it infringe the rights of others, especially if a society is well informed and civilized.

So here, let me summarize the issue for you. Gay rights are human rights because gays themselves are human beings and that unless proven otherwise, being gay is a sexual orientation. Gays have rights because nobody gives them the rights, but because they are born with the rights. Therefore, illegalization of gay rights is discrimination based on sex, and an abuse of human rights.

Now that gay rights are politically and democratically and universally human rights, then a referendum is definitely not the correct procedure to legalize or illegalize them. The reason is that under no circumstance must the rights of a minority group be subjected to a majority vote. Actually, since human rights are inalienable, then never must they be subjected to a vote of any kind, because by such an action, they may be rendered alienable.

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