Africa

Malawi drops charges against 2 arrested for gay sex

Samuel Tembenu, Malawi's minster of justice and constitutional affairs. (Photo courtesy of maravipost.com)

Samuel Tembenu, Malawi’s minster of justice and constitutional affairs. (Photo courtesy of maravipost.com)

The government of Malawi announced today that charges have been dropped against two men arrested Dec. 7 for alleged homosexual activity.

In a statement, Justice Minister Samuel Tembenu reaffirmed Malawi’s moratorium on arrests and prosecutions for alleged violations of the country’s anti-gay law, which has been challenged as unconstitutional and in violation of Malawi’s commitments to uphold international standards of human rights.

The moratorium had been established in 2012 while Joyce Banda was president. Under current President Peter Mutharika, who took office in May 2o14, the moratorium was maintained, but its status was thrown into doubt on Dec. 7, when Cuthbert Kulemela, 19, and Kelvin Gonani, 39, were arrested for allegedly having consensual sexual intercourse inside Gonani’s home. They were released on bail and ordered to return to court to face sodomy charges.

Tembenu announced today that those charges have been dropped. The following statement from Tembenu came after Malawian human rights advocates and LGBTI activists protested the arrests, along with Human Rights Watch and several Western ambassadors to Malawi:

Statement by Minister of Justice and Constitutional Affairs on Arrests Concerning Homosexual Acts

This statement is issued in response to the recent news in the print and electronic media alleging that the Police had arrested 19-year-old Curthbert Kulemera and 33-year-old Kelvin Gonani on 7th December on suspicion that they engaged in homosexual acts.

The Ministry of Justice wishes to reiterate Government’s commitment to the observance of human rights as enshrined in our Constitution. The Constitution of Malawi represents the collective wisdom and values of the people of Malawi. The Constitution, being the basic law, provides the framework that guides the proper implementation of the aspirations of the people of Malawi through the various statutory laws that Parliament enacts.

Malawi as a member of the international community is also committed to adhere to universally accepted human rights standards. The Government there for acknowledges the view expressed by international Human Rights bodies that the inclusion of offenses prohibiting homosexuality in our statute books/within our legislation may be at variance with the views held by such bodies. Consequently, the Government has committed itself to review the penal laws on homosexuality under the Penal Code, but this has to be done in consultation with the people of Malawi as prescribed by the Constitution. This position was clearly stated by Government before the United Nations and African Union treaty bodies.

Further in line with this commitment, Government has imposed a moratorium on arrests and prosecution of consensual homosexual acts. Government has also consistently invited civil society to carry out intensive sensitization campaigns on gay rights, as the concept is alien to Malawian culture since the previous two attempts to change the law met with stiff resistance from the general public.

Government has noted the concerns raised by interested parties and international bodies regarding the arrest of the two men. The findings of these investigations do not disclose a case of two consenting male adults indulging in consensual sex. Rather, the evidence indicated a case of indecent assault.  Hence, the diligence on the part of the Police to require medical examination in order to establish the truth. The Ministry has not detected any prejudice or malice on the part of the conduct of the Police.

Malawi Human Rights Commission logo

Malawi Human Rights Commission logo

In its efforts to review the law for compliance with the Constitution and Malawi’s international obligations, the Government will immediately engage its agencies, namely the Law Commission and the Malawi Human Rights Commission so that all the cultural sensitivities regarding this issue are properly addressed.  As this process is being undertaken, Government is appealing to all those concerned especially the international community to fully appreciate that this is a highly sensitive matter that requires understanding and accommodation of diverse views before it is fully resolved.

Meanwhile, as Government is addressing the specific incident that occurred in Lilongwe, it has noted with concern that comments coming from some commentators from both within and without show lack of appreciation and respect of Malawi’s culture and traditions as well as the challenges which Government is facing in resolving this issue. While Government welcomes an open discussion of the issue by all concerned, the use of inflammatory and derogatory language being made by some of those contributing to the discussion is counter-productive and serves only to divert proper focus on the issue at hand.

Government is re-affirming its commitment to observe the moratorium. In light of this commitment, the two gentlemen have been released from custody and all the charges dropped.

26 thoughts on “Malawi drops charges against 2 arrested for gay sex

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  2. A few days ago you posted the bail-bond for Gonani, which quite clearly showed that he was charged with sodomy. Do you have the same document for Kulemela, and can you tell us the charges written on it? I ask because of what I read in your article above and in another on local media.

    You quote the Minister of Justice thus:

    “The findings of these investigations do not disclose a case of two consenting male adults indulging in consensual sex. Rather, the evidence indicated a case of indecent assault.”

    If only Kulemela and Gonani were involved in this act then it does not make sense to arrest and charge the victim of indecent assault, whoever he is.

    This morning, in local media (on-line) I see this:

    “(The Justice Minister) said the state would punish anyone who forces another person in homosexuality. He said there were reports that Gonani forced himself into Kulemeka and when Kulemeka threatened to scream out for help in Gonani’s house, Gonani threatened to shout as well to tell people that Kulemeka was a thief. (The) Justice Minister further said Kulemeka was enticed with K30 000.”

    I am asking if you have access to the bail-bond to satisfy my curiosity about the following:

    – Was the alleged victim Kulemeka formally arrested?
    – If Kulemeka was arrested then what were the charges against him? Was it sodomy, theft, or what?

    With the limited legislation available to it, Malawi has to prosecute homosexual rape using the (so-called) sodomy laws.

    I am wondering if only Gonani was ever charged with sodomy, and Kulemeka not. If the latter was a victim then a medical examination with his consent would not have been unreasonable. Similarly, if Gonani was suspected of indecent assault, then a medical examination of him without his consent would not have been be unreasonable.

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      • Did you manage to find out:

        – Was the alleged victim Kulemeka formally arrested?
        – If Kulemeka was arrested then what were the charges against him? Was it sodomy, theft, or what?

        I do not mean from the local media or police statements, but from your contact(s) in Malawi.

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  16. WHAT IT IS HAPPENING NOW IN THIS WORLD ITS VERY BAD I THINK WE ARE JUSTING LIVING IN A BONUS HOURS.UR ALMIGHTY LORD JESUS IS AROUND THE CORNER.THESE GAY PEOPLE ARE JUST LIKE DOGS.WHATS IS WRONG WITH GOD`S CREATION?ARE YOU WISER THAN GOD THE CREATOR? YOU FOOLS BECAREFUL YOUR DISTRUCTION IS NEAR,,,,,.

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