UN joins legal challenge to Malawi's anti-gay law

Malawi President Joyce Banda
Malawi President Joyce Banda

The United Nations AIDS task force has joined a constitutional challenge to Malawi’s sodomy law, which will go before that country’s High Court on March 17.

The law has been on hold since November 2012, when Justice Minister Ralph Kasambara declared a moratorium on arrests and prosecutions related to consensual homosexual activity.  He later denied making that decision, but no arrests have been reported since then.

Earlier in 2012, 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.

In November, as this blog reported, the High Court decided to review the law’s constitutionality. At the time, it invited government agencies, religious bodies and civil society organizations to take part in the review by filing legal papers on the issue.

Reuters reported today:

The United Nations’ AIDS task force and human rights groups will launch a court battle against Malawi’s laws criminalizing homosexuality, in a rare challenge to rising anti-gay legislation in Africa.

The legislation [meaning “the law”?] has strained relations between President Joyce Banda’s government and international donors, whose aid is desperately needed in the impoverished country.

UNAIDS, the Malawi Law Society and local rights groups will ask the high court on March 17 to overturn as unconstitutional laws banning same-sex relationships.

They will also challenge the convictions of three men jailed in 2011. Homosexuality carries a maximum prison sentence of 14 years in the southern African country.

“Our argument is that as long as same-sex relationships are consensual and done in private no one has business to get bothered,” law society spokeswoman Felicia Kilembe said. …

In Malawi homosexuality became a contentious issue in 2009 when two men were arrested and charged with public indecency for getting married in a traditional ceremony. They were later pardoned by the late President Bingu wa Mutharika after pressure from donors and the United Nations.

In a related article, the IOL website of South Africa-based Independent Newspapers reported:

Gift Trapence, executive director of the Centre for the Development of People, or CEDEP (Photo courtesy of Abcnyheter.no
Gift Trapence, executive director of the Centre for the Development of People, or CEDEP (Photo courtesy of Abcnyheter.no)

Malawi’s top court is considering an appeal of the conviction of three men who are serving long jail terms for homosexual acts. Activists describe it as a landmark case.

The High Court started hearing the case on Monday [Jan. 20] after the Center for Development of People, a civil rights group that campaigns for minority rights, challenged the government on its tough laws on gays.

Gift Trapence, executive director of the civil rights group, executive director of the civil rights group, wants the court to declare that the laws criminalizing homosexuality in Malawi are unconstitutional.

In 2011, a lower court in Malawi sentenced the three men to between six and 12 years imprisonment with hard labor.

 

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Written by Colin Stewart

Colin Stewart is a 45-year journalism veteran living in Southern California. He is the president of the St. Paul’s Foundation for International Reconciliation, which supports LGBTQ+ rights advocacy journalism, Erasing 76 Crimes. Contact him at [email protected]

10 Comments

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  1. I am posting this from Malawi.

    Let me start off by saying I hope that the Court finds the “sodomy law” to be in breach of the Constitution, and that the cases of the three men are looked upon favourably. I mention this because I am going to be a bit critical of how the foreign media are reporting the latest developments in this story.

    1. The matter is in court because the Malawian Judiciary itself has put it there. In September last year there was a notice on its website stating that hearings would start in early December, and inviting those interested to apply to be friends of the Court. So the “court battle” has been launched by the Judiciary itself, and the activists are participating at its invitation. Someone in Malawi is spinning this around to make it look like the “battle” has been started on the initiative of the activists.

    2. There are no details about the convictions of the three men mentioned, other than there are three cases, and each one involves the conviction of a single individual. Since it usually takes two to tango, one wonders why the other participant in the act(s) was not convicted also? Perhaps there was no other participant, or he was a minor, or coercion was used. We will have to wait and see.

    3. The Judiciary are serious enough about this issue to have a bench of seven judges scrutinise the submissions made and prepare a judgement.

    4. It is the High Court which has taken on the issue. The Supreme Court is the top court, and the various issues can be taken there if necessary.

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