A study has shown that a recent Malawi Constitutional Court’s decision to uphold the country’s ban on same-sex sexual conduct between consenting adults has fuelled stigma and discrimination among members of the LGBTIQ+ community in the country.
The three-judge panel of Joseph Chigona, Vikochi Chima, and Chimbizgani upheld the validity of sections 153 and 154 of the Penal Code.
This follows a constitutional referral matter of 2021 involving a Dutch national Jan Willem Akstar and a transgender woman Jana Gonani who challenged the constitutionality of banning same sex marriages in the country.
They challenged Section 153 of the constitution which reads: “Any person who— (a) has carnal knowledge of any person against the order of nature; or (c) permits a male person to have carnal knowledge of him or her against the order of nature; shall be guilty of a felony and shall be liable to imprisonment for 14 years.”
Art and Global Health Centre Africa conducted the study to understand the impacts of the Nyasa Rainbow Alliance (NRA) registration and constitutional court cases associated with the lives of LGBTIQ+ people in Malawi and provide points of reflection on the strategies and measures that can be taken to minimize the adverse effects.
Conducted in six districts, the study findings revealed more negative impacts of the court cases.
“The community experienced negative consequences include fear, anxiety, theft, verbal insults, rejection and isolation, loss of friendship, denial of economic opportunities, physical violence and lack of freedom to religious association.
“In the time of religious group demonstrations during the court proceedings, civil society organisations offices were looted, hampering their operations. Additionally, due to threats and attacks, most of the CSOs suspended or slowed down operations impacting targeted service delivery to the LGBTIQ+ community,” reads part of the study report
For example, the study report said unknown people sent a drone over the Centre for the Development of People (CEDEP) office premises and later posted the pictures on one of the popular Facebook pages and as a precaution measure, CEDEP moved their information to a secured location.
Further, Aske Malawi office in Chileka was moved to Machinjiri and NRA relocated from Kameza to Nyambadwe for security reasons.
In an interview, Art and Global Health Centre Africa executive director Roger Kumalire Phiri said following the determination of the court case, there have been a lot of developments some bordering around access to health and also social inclusion of minority groups in the country.
“Several public service providers have misquoted or misunderstood the judgment as that it has created a new law, and now they are denying services to other people. We talk about the justice system and also access to healthcare services,” he said
Background
In February 2022, with the assistance of Nyasa Rainbow Alliance, a Malawian LGBTI organisation, Gonani challenged the constitutionality of one of the country’s laws criminalizing same-sex sexual conduct.
Police arrested Gonani in September 2021 following an altercation in Mongochi, Malawi. A male officer subjected her to a genital examination, placed her in a male holding cell and sent her to a hospital under the pretext of confirming her mental state, simply for identifying as trans.
On 23 December 2021, the Mongochi Senior Magistrate Court convicted her under the colonial-era law. She is currently serving an eight-year jail term at Blantyre Prison, one of Malawi’s most overcrowded men’s prisons.
The Constitutional Court joined Gonani’s case to an ongoing separate challenge to all three of Malawi’s colonial-era laws criminalizing same-sex sexual conduct.
