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The treatment of homosexuality in the Malawian justice system: R v Steven Monjeza Soko and Tiwonge Chimbalanga Kachepa

Louise Price

Barrister-at-law, Inner Temple, London, United Kingdom

SUMMARY

On 26 December 2009, two male Malawian nationals were arrested and charged with participating in a pre-nuptial engagement ceremony while of the same sex. This article is a trial observation by the author using the observational methodology of the United Nations Office of the High Commission for Human Rights. The article seeks to present an independent and impartial factual account of the trial of Steven Monjeza and Tiwonge Chimbalanga and to document the reaction to the trial by members of civil society. The aim is to examine the disjuncture between Malawian criminal law and the protection of human rights afforded by Malawi's Constitution, resulting in procedural and legal errors in the trial and the conviction of the two men.

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1 Malawi Penal Code of 1930 (as amended) Cap 7:01 Laws of Malawi.
2 Penal Code (n 1 above) sec 153.
3 Penal Code sec 156.
4 Constitution of the Republic of Malawi (adopted 18 May 1995).
5 South Africa is the only country on the continent to legislate against discrimination on the grounds of sexual orientation. In 1998, parliament passed the Employment Equity Act. The law protects South Africans from labour discrimination on the basis of sexual orientation, among other categories. In 2000, similar protections were extended to public accommodations and services, with the commencement of the Promotion of Equality and Prevention of Unfair Discrimination Act.
6 Taken from the African Charter on Human and Peoples' Rights, adopted 27 June 181, OAU Doc CAB/LEG/67/3 Rev 5 (entered into force 21 October 1986 and ratified by Malawi on 17 November 1989) art 2.
7 Zimbabwe Human Rights NCO Forum v Zimbabwe (2006) AHRLR 128 (ACHPR 2006) para 169.
8 Art 3 African Charter.
9 Zimbabwe Human Rights NCO Forum v Zimbabwe (n 7 above).
10 The Weekend Nation, 27 December 2009.
11 The actual act grounding the basis of the charges was a traditional ceremonial engagement called chinkhoswe.
12 Penal Code (n 1 above) sec 153.
13 Penal Code (n 1 above) sec 156.
14 Magistrate Usiwa-Usiwa, Blantyre Magistrate's Court, 11 January 2010.
15 Justice Roland Mbvundula, Blantyre High Court, 28 January 2010.
16 The Malawian Constitution (as amended) in art 19(5) guarantees that 'no person shall be subjected to medical or scientific experimentation without his or her consent'.
17 Tiwonge Chimbalanga, Blantyre Magistrate's Court, 3 February 2010.
18 Reuters http://www.news24.com/Africa/News/Malawi-gay-couple-has-a-case-20100322 (accessed 30 September 2010).
19 Barbra Mchenga and Mauya Msukwa, respectively, Blantyre Magistrate's Court, 18 May 2010.
20 Magistrate Nyakwawa Usiwa Usiwa, Blantyre Magistrate's Court, 20 May 2010.
21 President Bingu wa Mutharika, speaking on 29 May 2010 http://www.malawivoice.com/national-news/bingu-pardons-the-gay-couple (accessed 30 September 2010).
22 President Bingu wa Mutharika, speaking on 29 May 2010, Reuters http://www.alert-net.org/thenews/newsdesk/LDE64S0A4.htm (accessed 30 September 2010).
23 n 21 above.
24 http://www.guardian.co.uk/world/2010/jun/08/malawi-steven-monjeza-tiwonge-chimbalanga (accessed 30 September 2010).
25 Reported to Victor Mhango of the Centre for Human Rights Education Assistance and Advice (CHREAA), in an interview at Chichiri Prison, 10 February 2010.
26 Reported to the International Secretariat of the World Organisation Against Torture (OMCT); see report at http://www.omct.org/index.php?id=APP&lang=eng&actual PageNumber=1&articleSet= Appeal&articleId=9190 (accessed 22 September 2010).
27 Interview with Mr Mauya Msukwa, counsel for the defence, 15 February 2010.
28 The Nation 6 January 2010.
29 Amnesty International http://www.amnesty.org.uk/actions_details.asp?ActionID=682, as reported in The Nation 13 January 2010.         [ Links ]
30 The Nation 13 January 2010.
31 As above.
32 As above.
33 The Nation 2 February 2010.
34 http://www.southernafricalitigationcentre.org/news/item/Malawi_Malawi_President_slams_homosexuality (accessed 30 September 2010).
35 See information on website of International Lesbian and Gay Association, http://www.ilga.org (accessed 23 September 2010).
36 Sec 42 of the Malawian Constitution guarantees the right to a fair trial.
37 80% of the population of Malawi are Christian; US Department of State, Malawi, International Religious Freedom Report 2007, Bureau of Democracy, Human Rights and Labour, http://www.state.gov/g/drl/rls/irf/2007/90107.htm (accessed 30 September 2010). After the judgment, Malawian cleric Canaan Phiri of the Malawi Council of Churches hailed the court for 'upholding the law because homosexuality is a sin'. He added: 'The judgment was within the law ... Malawi has followed the rule of law because having a sexual orientation is not a sin, but practising is sin.'
38 The use of language surrounding the trial and the public reaction suggested that to be homosexual was considered to be 'un-African', and a Western practice. The depth of this feeling was reflected in the comments of President Bingu when pardoning the accused: 'These boys committed a crime against our culture, our religion and our laws' and this can be seen again in the language used at the sentencing of the accused, where the court, giving judgment, stated that this was not seen as simply a breach of the Penal Code, but termed it as a 'crime against Malawi's culture'.
39 The press reporting of this case clearly illustrated that some within Malawian society perceived homosexuality as a Western cultural concept, and the imposition of its acceptance was seen to be an external cultural imposition. The media reporting of the case included considerable interest in the pressure and condemnation the arrest and sentence from the international society and Western nations. Eg, on 1 February 2010, it was reported in The Nation that 35 NGOs from African countries, under the banner of the Aids and Rights Alliance for Southern Africa, called for the repeal of secs 153 and 156 of the Penal Code, stating that the trial was undermining the fight against the spread of HIV. The press release from the Alliance quoted a study published in Lancet in 2009 that found that 'political and social hostility were endemic against men having sex with men' and that 'the response to (gay) male sex needed rapid and sustained national and international commitment to ... action to reduce structural and social barriers to make these accessible'; http://www.southernafricalitigationcentre.org/ news/Malawi/page/2 (accessed 30 September 2010). It was reported in The Nation on 23 March 2010, that the United States State Department commented that it was 'a step backwards in the protection of human rights'. In addition, press statements on homosexuality reported it as being an 'unwelcome influence from the West'; The Nation 23 March 2010.