Malawi Human Rights Commission
Off Paul Kagame Road
Private Bag 378 Private
Lilongwe 3, Malawi
To: Mr. David Nungu
CC: Mr. Pacharo Kayira
Human Rights Section
Malawi Ministry of Justice
Re: Roadmap for implementing a public inquiry into LGBTI rights
Dear Mr. Nungu,
Human Rights Watch is writing regarding the "call for public input on the roadmap for implementing a public inquiry into LGBTI in Malawi," published in Malawi News on July 29-August 4, 2017. We wish to register our concerns about the objectives of the public inquiry.
Human Rights Watch is an independent, international nongovernmental research and advocacy organization that works in more than 90 countries.
We note that the Malawi Human Rights Commission (the "Commission") is planning to convene the public inquiry as requested by the government, through the Office of the Solicitor General, on November 7, 2016. Furthermore, we note that section 11(d) of the Malawi Human Rights Commission Act, No. 27, 1998, empowers the Commission to make recommendations regarding human rights issues upon request by the government.
Everyone is entitled to respect of their basic human rights, regardless of sexual orientation or gender identity. Section 20 of the 1996 Constitution of the Republic of Malawi, as amended, prohibits discrimination in any form and guarantees all persons equality before the law and equal and effective protection under the law. The rights of a minority should not be granted or withheld based on the views of the majority.
Following consideration of Malawi's initial periodic report on domestic implementation of the International Covenant on Civil and Political Rights, the United Nations Human Rights Committee (the "Committee"), in its concluding observations expressed concern about reports of violence against LGBTI people and the impact of stigma on access to healthcare services. The Committee recommended that the Malawi government establish a mechanism to monitor cases of violence and to act with due diligence to protect lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals from violence.
Following consultations with Malawian activists and representatives of human rights organizations in Malawi, including the Centre for the Development of People (CEDEP), Human Rights Watch is of the view that a public inquiry, as formulated in the call for input, risks exposing an already vulnerable minority to abuse and will inevitably lead to further violations of the human rights of LGBTI individuals. Recognizing that the protection of human rights of LGBTI persons in Malawi remains highly contentious, we urge the Commission to abandon the public inquiry. We are particularly concerned that the objectives of the public inquiry are framed in these terms: "to get views from the public that would be used to inform the national position on the controversial issue of LGBTI." It is critical that Malawi's national position on human rights not be determined by public opinion but by its legal obligations under the constitution and regional and international law.
In addition to responding to government requests, the Commission has a range of other duties, including (a) to act as a source of human rights information; (b) to assist in educating the public on, and promoting awareness and respect for, human rights; and (c) to promote more particularly the human rights of vulnerable groups. The Commission could comply with the government's request and achieve its overall objective by conducting an inquiry focused specifically on violence, abuse and discrimination faced by LGBTI individuals in Malawi. We draw your attention to Resolution 275 of the African Commission on Human and Peoples' Rights urging all African countries to:
end all acts of violence and abuse, whether committed by State or non-state actors, including by enacting and effectively applying appropriate laws prohibiting and punishing all forms of violence including those targeting persons on the basis of their imputed or real sexual orientation or gender identities, ensuring proper investigation and diligent prosecution of perpetrators, and establishing judicial procedures responsive to the needs of victims.
We urge the Commission to be guided by international human rights norms and standards, including the above-stated resolution of the African Commission on Human and Peoples' Rights, in its work on LGBTI issues in Malawi. Should the Commission wish to create public awareness and deepen an understanding of LGBTI issues, we do not believe that a public inquiry, as presently structured, is the appropriate platform for doing so. The Commission should instead consider other processes, for instance, establishing a Committee in accordance with section 8 of the Human Rights Commission Act to increase public education and awareness premised on human rights standards.
You can reach us with your response, comments or questions through our researcher, Ms. Wendy Isaack.
Director, LGBT Rights Program
Human Rights Watch
 Human Rights Committee, concluding observations on the initial report of Malawi CCPR/C/MWI/CO/1/Add.1 para 10
 Resolution 275: Resolution on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity: http://www.achpr.org/sessions/55th/resolutions/275/