Malawi suspends anti-gay laws

Malawi's moratorium has attracted a lot of attention in Africa, where two-thirds of countries criminalize homosexuality.

By , Contributor

Moving against the tide of anti-gay legislation in the region, Malawi announced this week that the suspension of its laws criminalizing homosexuality, promising public and parliamentary debates on the issue that could potentially repeal the laws altogether.

Ralph Kasambara, Malawi’s justice minister, said the moratorium meant police would no longer be able to arrest or prosecute gays or lesbians.

“It is now up to all stakeholders including civil society to encourage a robust debate,” Mr. Kasambara said. “We agree as a nation that we have to be bold on the issue.”

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The move is a controversial one on the African continent, where homosexuality is banned in two-thirds of countries.

“The majority view here is that homosexuality is immoral and evil,” says local blogger Steve Sharra.

But Malawi's decision has been broadly welcomed by human rights activists, who say the laws criminalizing homosexual activities with up to 14 years in prison are simply holdovers from colonial times.

“No one should go to prison for consensual relations with someone of the same sex, and Malawi’s decision has given hope to thousands who risk prison sentences under such laws,” says Tiseke Kasambala from Human Rights Watch.

Malawi made headlines around the world in 2009 when two gay men were arrested and charged with “gross indecency” for getting married. Steven Monjeza and Tiwonge Chimbalanga were sentenced to 14 years imprisonment and spent five months in jail until then President Bingu wa Mutharika pardoned them on May 29 the following year.

'Dictated to by foreigners'

Malawi is a largely a socially conservative country, and lawmakers may decide abolishing these laws altogether could be alienating to their constituents, some say.

Mr. Sharra says he doubts the law will pass if left to a debate in Parliament. “You do hear a few people pointing out that [they] are human beings and have rights but they are few and far between.”

Many Malawians who oppose the change “aren’t citing African tradition or morality, but are saying that we can’t be dictated to by foreigners,” Sharra adds.

Western donors largely pulled out of Malawi under its previous, autocratic president, Bingu wa Mutharika.  Some see the suspension of laws criminalizing homosexuality as a way to please foreign donors, who have been coaxed back into the country by Mr. Mutharika’s successor, Joyce Banda, who took over as president in April.

President Banda became Africa’s second female head of state after Liberia’s Ellen Johnson Sirleaf. Along with other donor-pleasing actions like devaluing the currency in line with International Monetary Fund recommendations and sacking corrupt politicians and security chiefs, she pledged to normalize same-sex relationships “as a matter of urgency.”

But in October, it appeared that she might be going back on her pledge, after she told the Associated Press in an interview that Malawians “were not ready” to deal with such a change.

'Embarrassment for the government'

Announcing the moratorium on the anti-gay laws, Mr. Kasambara, the justice minister, told Malawi’s Nyasa Times that while the president did not wish to “interfere or be judgmental,” she wanted to clarify matters.

"If we continue arresting and prosecuting people based on the said laws and later such laws are found to be unconstitutional it would be an embarrassment to government," Kasambara said.

"It is better to let one criminal get away with it rather than throw a lot of innocent people in jail."

Kelvin Maigwa, a spokesman for Malawian police, says that at present there are few arrests in Malawi for homosexual acts.

"These cases are not really very common in Malawi," Mr. Maigwa says. "If really they exist, the people who engage in homosexuality are not free to openly declare such for fear of the law."

But John Gift Mwakhwawa, president of the Malawi Law Society, says that though he welcomes the strengthening of minority rights, laws can only be suspended by parliamentary vote or the constitutional court.

“We have institutions charged with particular responsibilities and while I sympathize with the government’s position, those institutions, be they conservative or not, must be allowed to make those decisions, otherwise you open the floodgates,” Mr. Mwakhwawa says.

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