Malawi has stopped arresting people for same-sex intimacy pending a review of the country’s anti-gay laws, Malawi’s justice minister told the U.N. Human Rights Committee last week.
The latest moratorium is related to last fall’s move by the country’s High Court to review the constitutionality of Malawi’s anti-gay laws. The court invited government agencies, religious bodies and civil society organizations to take part in that review.
In response to questions from the U.N. committee about the status of the deliberations, Janet Chikaya-Banda, Malawi’s solicitor general and secretary for justice, said a review by the country’s Law Commission was stalled because of a lack of financial resources, even though the country has the political will to deal with the matter, the Nyasa Times reported.
In the meantime, Malawi is not arresting people for same-sex acts, Chikaya-Banda said.
Under Malawian law, sexual intimacy between men is punishable by 14 years in prison; for women, the punishment is five years. But the constitutionality of those laws is currently in question. Human rights activists argue that the laws violate Malawi’s constitutional protections for citizens regardless of their sex, race, tribe or religion.
The High Court is focused on a review of the case of three men — Amon Champyuni, Mathews Bello and Musa Chiwisi — who were convicted in 2011 and are serving sentences ranging from 10 to 14 years for practicing homosexuality.
In January, the court’s deliberations on the issue were delayed pending a determination by the Supreme Court on whether the High Court can proceed to review an issue of constitutionality, the Southern Africa Litigation Centre reported.
Arrests under Malawi’s anti-gay laws have actually been on hold since November 2012, when then Justice Minister Ralph Kasambara declared a moratorium on arrests and prosecutions. He later denied making that decision, but the latest Nyasa Times article confirmed that in 2012 the government issued “a moratorium where it ordered police not to arrest people for same-sex acts until the anti-gay laws are reviewed by parliament.”
Earlier in 2012, then President Joyce Banda called for the repeal of the law, but she later announced that Malawian legislators were not ready to go along with her on that plan.
Several religious groups have been vocal in their support of the existing anti-gay laws. In February, the Malawi Muslim Association proposed imposing the death penalty on homosexuals, but the country’s then justice minister, Fahad Assani, a Muslim, spoke against that suggestion.
Opponents of the anti-gay laws include Malawi’s Centre for the Development of People (CEDEP), the Malawi Law Society, the Centre for Human Rights and Rehabilitation (CHRR), the University of Malawi’s Faculty of Law, and the Malawi Network of Religious Leaders living with or affected by HIV.
In May’s national election, opposition candidate A. Peter Mutharika, a widower, won the presidency, ousting Joyce Banda. During the campaign, Mutharika denied reports that he is gay. Since his election, CEDEP has urged him to support moves to repeal the anti-gay laws.
Gift Trapence, executive director of CEDEP, told the U.N. committee that homophobia is on the increase in Malawi.
In response, in a report to the committee, Justice Minister Banda said:
“Malawi has not set up a mechanism to specifically monitor cases of violence based on sexual orientation nor has it set up awareness-raising campaigns on the same. … All cases of violence are handled in the same way regardless of the cause or alleged basis of the violence.”
Homosexuality has been a contentious issue in Malawi since at least 2009, when two men were arrested and charged with public indecency for getting married in a traditional ceremony. They were later pardoned by then President Bingu wa Mutharika under pressure from international aid donors and the United Nations.
This article was revised on Sept. 16, 2015, to correct the title of Janet Chikaya-Banda, solicitor general and secretary for justice.