In November 2016 Malawi government announced its plans to conduct a public inquiry on the laws that criminalize homosexuality in order to decide as to whether to change such laws or not. According to the Solicitor General and Secretary for Justice Dr. Janet Banda SC, government was receiving enormous pressure to review such laws hence the decision. Ironically, government did not disclose the source of such pressure. Just a few days ago the Malawi Human Rights Commission (MHRC) through its chairperson Justin Dzonzi confirmed that the Commission had been tasked to carry out such an inquiry, and that it would start in June 2017.
It is, however, interesting to note the announcement of government’s decision [last year]coincided with Episcopal Conference of Malawi (ECM) and Evangelical Association of Malawi (EAM)’s public announcementa bout their collective plan to hold a nationwide pro-life and pro-family march in response to the abortion and homosexuality issues.
As to whether government’s move was merely aimed at diverting the public attention from the planned anti-abortion and homosexuality protests by demonstrating that it had already started acting on these controversial issues hence no need to proceed with the march, or government was merely fulfilling a commitment it may have made to the leaders of “the new world order” about conducting a public inquiry – before the next state reporting period-in order to show that it was doing something towards the “repeal” of anti-homosexuality laws in Malawi is a subject reserved for another day.
However, what is of interest in this article is to examine government decision to conduct the public inquiry on anti-homosexuality laws. Is public inquiry on anti-homosexuality laws necessary?
It must be stated from the very onset that homosexuality acts and unions, besides being sinful and abomination before God in religious terms, are a threat to the fabric and morality of a society as the union between man and woman is the foundation or basic unit of a society, and that anything that runs counter to this set-up must hence be challenged. Precisely, our Constitution (Section 13, 22, 33) recognizes that the family by virtue of being a natural and fundamental group unit is entitled to protection by society and state. Besides, Section 23 specifically states that children have the right to know, and also to be raised by their parents [biological – father and mother], partly rejecting any idea of homosexual “couples” having the right to adopt children.
Equally important, the Constitution underscores the importance attached to the recognition and protection of the family as the natural and basic unit of society by recognizing the family as one of the Principles and goals of the National Policy (Section 13). In fact, the recent Marriage Divorce and Family Relations Act (MDFRA) of 2015 agrees with the spirit and letter of the Republican Constitution. Section 14 of the MDFRA recognizes that only persons who are of the opposite sex can enter into marriage, thereby rejecting any claim of marriage as being man-man or woman-woman.
The duty to protect the family as a basic unit of a society is, besides our Constitution and other pieces of our domestic laws, also recognized in other foundational international human rights consensus documents like the Universal Declaration of Human Rights (Article 16) as well as the International Covenant on Civil and Political Rights (Article 26).It is also reflected in the African Charter on Human and Peoples Rights (ACHPR).
Furthermore, just as it is with our Constitution, in all of the above mentioned key international consensus documents, besides the so-called seven ‘core’ UN international human rights treaties: International Covenant on Civil and Political Rights (ICCPR of1966), Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT of 1984), the International Covenant on Economic, Social and Cultural Rights (ICESR of 1966),the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), Convention on the Elimination of all Forms of Discrimination against Women (CEDAW of1979), Convention on the Rights of the Child (CRC of 1989) and MWC (1990) , the word “sex” (implying male or female) rather than “sexual orientation” (the phrase that is used to advance homosexuality and transgender agenda) is used, and no where do we see the phrases “Lesbians, Gay, Bisexual and Transgender rights [LGBTI]” in these overarching international human rights documents.
This clearly underscores the fact that the framers of these international human rights instruments and declarations including the Universal Declaration of Human Rights (UDHR), just like those of our Republican Constitution, were informed by a conception of sex as naturally being male or female, and had high regard for protection of family as a foundation or basic unit of a society.
While admittedly in recent years there have been a drastic push towards the universal recognition of homosexuality and transgender“rights” [LGBT]by international agencies and homosexuality “rights” campaigners across the global by amongst other strategies “manipulating”the established UN Treaty bodies and global conferences to advance the homosexuality agenda by portraying a false picture that these claimed “rights” have attained the “universality” status , these matters remain contested globally, and there is no consensus even amongst the so-called developed countries.
While the UN Human Rights Council, some Treaty Bodies like Human Rights Committee and CEDAW Committee have supported and championed the LGBTI agenda through imposing [NOTE: Imposing because neither the CEDAW nor the ICCPR carry such phrases or words like “sexual orientation”, “gender identity” or “LGBTI”] concluding observations and recommendations on states to repeal laws that criminalise homosexuality and enact hate crime laws, the UN General Assembly- a powerful and political decision making arm or platform of the UN- remains divided over the matter with some member states predominantly from Europe in support while still many others from Asia and Africa in opposition to the so-called “LGBTI rights”.
The very fact that the world has witnessed some countries holding national or state referendum on the matter, and also some conflicting court rulings across the globe with some recognizing homosexuality “rights” and still others rejecting them speak volume about the proposition that there is no “universality” or global consensus on LGBT as rights despite the growing pressure by international agencies and homosexuality and transgender “rights” campaigners piled on developing countries to recognize such “rights” as rights.
Besides, in 2006 a set of principles -called “the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Equality”- were developed to champion the “LGBTI agenda”. However, these principles- which are intended to serve as an interpretive aid to the human rights treaties – are yet to be adopted by States in a treaty [with many States expressing reservations], and the attempt to make “gender identity” and “sexual orientation” new categories of non-discrimination has been repeatedly rejected by the UN General Assembly. As such these Principles cannot be said to be a legally binding part of international human rights law.
Informed by such a background it was therefore weird to see a Malawi government announcing statement carrying such words and phrases like “a public inquiry on Lesbians, gay, bisexual and transgender rights” when in actual fact neither the Constitution nor any of our domestic laws like the Penal Code and MDFRA recognize such as “rights”. This is besides lack of universal or international consensus on the so-called “LGBTI rights” under international law as explained earlier.
It is therefore against this background that our laws [ Penal Code: Chapter 7:01 Section 153, 156 and 137A], in pursuit of protecting and preserving the family as a basic unit of a society, criminalise homosexuality acts and unions as they are a threat to the fabric of Malawi society- the family.
In fact, these anti-homosexuality laws are informed by one of the general principles of law which clearly states that laws must reflect the interests, culture and value system of a particular society which they serve. As such, no institution including Parliament, Judiciary, the executive, foreign agencies or Non-governmental organizations have the legal and moral mandate to redefine marriage and family as such matters can only be decided by majority of Malawians through a referendum – NOT a public inquiry as suggested by Malawi government. This is simply based on the fact that the Constitution of Malawi, using the principle of Constitutional Stability as reflected in the Schedule to the text of the Constitution, does not permit any change or amendment to the family (one of the principles of national policy) unless the majority of people voting in a national referendum supports such an amendment.
According to Edge Kanyongolo in his submission “The Constitution” to Nandir Patel and Svasaland’s book Politics and Government, the Constitution of Malawi recognizes the value of Constitutional Stability particularly with reference to certain provisions that are critical to survival and development of democracy, and as such it protects certain provisions from arbitrary change by providing that they cannot be substancially amended i.e. have their content changed, by Parliament unless the majority of people voting in a national referendum supports amendment.
And interestingly, the Principles of National Policy which includes the family as stipulated in Section 13 is one such protected area that any arbitrary change can happen through a referendum.This is the case because any change or removal of the laws that criminalise homosexuality will by implication also mean a change in the definition, scope of marriage and family as held in our domestic laws including the Constitution- an area which based on the Schedule to the text of the Constitution of Malawi cannot be subjected to an amendment unless through a referendum.
It is therefore premised on this that the only legally accepted path to inform Malawi as to whether to remove laws that criminalise homosexuality is through a referendum, NOT a research as dubbed Public inquiry. In other words, if government wants to know the views of Malawians in order to decide as to whether to change the laws that criminalize homosexuality, then a referendum is the way to go as the issue borders on the family- a protected area in the Republican Constitution based on the principle of Constitutional Stability.Already other similar studies on the subject have been done in the recent years with the Afrobarometer findings, for instance, indicating that 99.9% of Malawians are against legalization of homosexuality.
Otherwise, the Democratic Progressive Party (DPP) government [through Malawi Human Rights Commission] can proceed to conduct the public inquiry on anti-homosexuality laws just like any other form of research or study in order to understand amongst other things the political economy dynamics surroundingthe issue, but usingsuch an inquiry as a basis in deciding whether to remove those laws that criminalise homosexuality is not only problematic but also unconstitutional.Even if such a decision were to be grounded on a certain international treaty (which Malawi is party to or not) or any international commitment which Malawi government may have made at a certain international forum, it would still be rendered unconstitutional.
With reference to Section 211 of our Constitution, legal scholar Mwiza Jo Nkhata ably states that all “international agreements entered into prior to the constitution or after the constitution are binding on Malawi only if they are not in conflict with any domestic legislation. Thus international agreements irrespective of when Malawi became party to them, will be binding on Malawi as long as there is no domestic statute providing the contrary.” As such Nkhata argues that, in applying international law in Malawi, “courts will strive to ensure an interpretation that does not contradict the Constitution or any domestic statutes.”
We therefore urge all patriotic Malawians to be vigilant and steadfast in ensuring that our Government protects the constitution and compatible laws against any attempt to flout it. Indeed, as rightly observed by Nkhata: “It is thus the duty of every Malawian to ensure that the Constitution’s terms are followed by all duty bearers, and that at all times, constitutionalism and democratic governance are ideals towards which the country must continue to strive”.
- The authors are both students from University of Malawi, Chancellor College pursuing their Masters and Bachelors (honours) studies in the Department of Political and Administrative Studies (PAS) and Faculty of Law respectively.
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