Human rights organizations in Malawi have criticized the country’s Constitutional Court over its June 28 ruling that declined to legalize same-sex relationships.
Wim Akster, a Dutch national, and Jana Gonani, a local transgender woman, through their lawyers last year approached the Constitutional Court over the legalization of consensual same-sex relations under the penal code, which criminalizes so-called acts of “carnal knowledge against the order of nature and gross indecency” with a maximum penalty of 14 years in prison with corporal punishment for both men and women.
The Constitutional Court heard the case and issued its ruling on June 28.
“We echo the concern voiced regarding the recent Malawi Constitutional Court ruling on consensual same-sex sexual conduct,” said U.N. Human Rights Southern Africa. “We urge the government to protect and stand up for the human rights of vulnerable groups, including LGBTQ+ persons, by ensuring domestic laws align with international obligations.”
Khanyo Farise, Amnesty International’s deputy regional director for East and Southern Africa, described the ruling as a bitter setback for human rights in Malawi.
“The court’s decision to keep these discriminatory laws on the books is a bitter setback for human rights in Malawi. The ruling manifestly flies in the face of Malawi’s constitution, the African Charter and international human rights law, which all clearly prohibit discrimination,” said Farise. “It also makes Malawi an outlier in Southern Africa, where most countries have decriminalized consensual same-sex sexual conduct.”
Farise added “the court’s refusal to overturn these laws means LGBTI persons in Malawi will continue to face discrimination and persecution simply for who they love.”
“In particular, this ruling translates to continued barriers in access to healthcare and other social services for LGBTI persons,” said Farise. “Amnesty International stands with all LGBTI people in Malawi, who deserve the right to live their lives with dignity and full humanity. We also demand that authorities ensure their safety in the face of threats of violence.”
U.N. Human Rights said the provisions of the Malawian penal code that criminalize consensual same-sex sexual relations should be repealed.
“The Constitutional Court’s ruling upholding the criminalization of consensual same-sex conduct is deeply disappointing and contrary to the country’s own international human rights obligations,” it said. “The anti-gay law must be repealed and the rights of LGBTQ+ people protected.”
LGBTQ activists in Malawi say the recent surge in demonstrations and actions against the community that traditional and religious leaders have organized have raised serious concerns about the protection of human rights and the principles of equality and nondiscrimination.
“Homophobic sentiments are leading to higher rates of mental health issues, unemployment and homelessness,” said the Nyasa Rainbow Alliance. “It takes no compromise to give people their rights. It takes no money to respect the individual. It takes no political deal to give people freedom. It takes no survey to remove repression.”
“Gay people are born into and belong to every society in the world,” added the group. “They are of all ages, races, and faiths. They are doctors, teachers, farmers, bankers, soldiers, athletes, and whether we know it or we acknowledge it, they are our family, our friends, and our neighbors.”
Media reports indicate human rights organizations are considering an appeal of the ruling.
The Namibian High Court last month decriminalized consensual same-sex relations. Mauritius last year declared Article 250 of the country’s penal code that criminalized consensual same-sex sexual relations as unconstitutional following a four year legal battle that Abdool Ridwan Firaas (Ryan) Ah Seek, president of Arc-en-Ciel, the country’s largest LGBTQ rights group, initiated.
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