2 October 2012

Malawi: Will Banda Fight for Gay Rights?

Photo: See-ming Lee/UN
Displaying the rainbow flag of gay rights activists: Malawi's anti-gay laws punish consensual same-sex conduct with prison sentences of up to 14 years for men and 5 years for women.

One of the earliest indications that Joyce Banda was going to be a very different president from her predecessor, Bingu wa Mutharika, was her suggestion - soon after coming to power - that her government would review Malawi's anti-gay laws. While pleasing some key donors and making headlines, the new policy did not find many backers in Malawi. And the question now is whether - six months down the line - President Banda remains committed to promoting and protecting the rights of Malawi's gays and lesbians.

She certainly should be because the concept of non-discrimination is grounded in the inherent and equal dignity of every person and the fact that everyone is entitled to enjoy basic human rights. Any distinction based on race, religion, gender, disability or indeed sexual orientation (among others) denies some people the right to enjoy their basic human rights and violates their right to non-discrimination.

The International Covenant on Economic Social and Cultural Rights is the global human rights treaty that outlines people's socio-economic rights - such as education, health, employment, family and social security. In General Comment No 20 of 2 July 2009, the Committee on Economic Social and Cultural Rights, which monitors the implementation of the Covenant, also recognised sexual orientation and disability, among others, as prohibited grounds for discrimination under the Covenant.

Malawi is a state party to the Covenant. So President Banda must realise that homosexuals in Malawi are entitled to enjoy the Covenant's rights without discrimination - a fact reinforced by the right to non-discrimination guaranteed under section 20 of the country's constitution. Indeed, marriage, education, freedom of association and belief etc. are human rights that are constitutionally guaranteed to all people without discrimination.

Currently, Malawi's Penal Code criminalises sodomy and sexual activities between males and by extension, between females. The law does not prohibit homosexuality per se - so it is not technically an offence to profess that one is gay or lesbian. However, the law can label homosexuality as 'indecent' or as 'conduct likely to cause a breach of the peace' and thereby pave the way for the prosecution of homosexuals even if they are not engaging in any sexual acts.

It was these anti-gay laws that President Banda said would be repealed back in May - implying that her government would at least decriminalise homosexuality even if it would not necessarily legalise it.

However, while decriminalisation would protect gays and lesbians from arrest (indeed there does already appear to be an unofficial moratorium on investigating 'gay crime' in Malawi), it would not end discrimination in relation to marriage and many other rights. And it would still leave the homosexual community in limbo and leave the onus on them to enforce their right to non-discrimination under the through the courts.

But more importantly, it appears that Banda's early public enthusiasm for repealing Malawi's anti-gay laws has cooled down. While speaking to the media in America during her first trip to the UN General Assembly at the end of September, she stated that the time might not yet be ripe for Malawi to repeal anti-gay laws as the majority of Malawians appear to be against homosexuality.

And her government has certainly not tackled the matter with any urgency - or indeed at all. It has been six months since she first spoke out on the subject and her administration has not yet begun to draft a bill to repeal the anti-gay laws, let alone brought one before parliament. Indeed, the only (very small) step forward has been the pronouncement by the Malawi Human Rights Commission that it will look into the issue.

It was always likely to be a tough fight - and one that President Banda was always likely to dodge - because the sad truth is that most Malawians are not yet in favour of decriminalising homosexuality. In thrall to the views of religious and traditional leaders, who are almost universally homophobic, most Malawians are a long way from respecting the rights of homosexuals - believing them to be 'immoral'.

But these views can change. Disability was once considered a consequence of sin or a curse and disabled people had to be 'healed' or 'delivered', while children with disabilities could be killed in order to purge society. While there is still widespread discrimination against disabled people, these appalling views are disappearing as able-bodied people realise a simple truth - disabled people have the same human rights as anyone else.

One day, Malawians will start to see this same light in relation to gays and lesbians.

But in the meantime, the debate rages on with some people saying that 'selected' rights could be recognized but certainly not those relating to marriage. Meanwhile, others have called for a referendum on the issue. But both of these are problematic since human rights are inherent and inalienable. It is not up to the majority or the government to decide which rights people get to enjoy. We all know what happens in those cases - marginalised and minority groups have their rights taken away.

Indeed, it is the government's obligation to ensure non-discrimination in the enjoyment of human rights - not to cherry pick which groups can enjoy which rights.

But while the international legal picture is clear. The position of Joyce Banda's government on homosexual rights is very unclear - a murky mix of public, donor-friendly rhetoric and voter-friendly inaction. And it is critical to remember that the 2014 tripartite elections are less than two years away. Determined to secure a genuine mandate for herself and her party, President Banda is unlikely to take a potentially 'unpopular' gamble by repealing anti-gay laws and recognising gay rights ahead of the polls.

But even if she does not take any concrete action, at least she has put a stop to the hate-filled, homophobic rhetoric of the previous government. And that is a step in the right direction.

Supporting links:

Community Law Centre, University of Western Cape

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InFocus

Malawi Takes Bold Move and Suspends Anti-Gay Laws

Displaying the rainbow flag of gay rights activists: Malawi's anti-gay laws punish consensual same-sex conduct with prison sentences of up to 14 years for men and 5 years for women.

The government has suspended laws criminalising same-sex relationships and police have been ordered not to arrest or prosecute homosexuals until parliament has debated the issue. Read more »