Are gays and lesbians now FREE in Malawi?

Tiwonge Chimbalanga & Steve Monjeza
Tiwonge Chimbalanga & Steve Monjeza
Monjeza & Chimbalanga were arrested having come out as gays

It’s been a week now since the Malawi Government said that no arrests will be made on homosexuals, but then it remains unclear on whether the directive entirely means the practice is now condoned or not.

Just last week, Minister of Justice and Constitutional Affairs Samuel Tembenu revealed that there will be no arrests or prosecutions of homosexuals saying the laws on the same are currently being reviewed.

The debate on the issue refuses to die with the media continuously giving stances from various groups concerned with the same, not forgetting the vibrant religious groupings who claim that homosexuality is against the teachings of all churches, and if legalized will dilute the whole essence of dubbing Malawi as a ‘God fearing nation.’

Samuel Tembenu
Tembenu: No arrests on homosexuals.

Last month, it was all over that government had succumbed to pressure to release a gay couple after the donor community reportedly asked the Peter Mutharika led administration to drop charges on the two Lilongwe guys, whom police said were caught having carnal knowledge of each other.

Media reports in Malawi quoted the Malawi Government as revealing that there are over 40,000 gays in Malawi but most of them operate underground in fear of discrimination or threats that may befall them.

Well, not anymore because an active directive from government says no to their arrests all in the name of reviewing the laws.

In an interview with Malawi24, Chancellor College based legal expert Professor Edge Kanyongolo said that the directive government has made cannot force people to conclude that homosexuals are finally free in Malawi.

He said ”They (homosexuals) cannot be said to be “free” to practice because, until the law is repealed, any person – whether he or she is heterosexual or homosexual- who has sex in a manner that is “contrary to the order of nature” will be deemed to be violating section 153 of the Penal Code which states that : “Any person who has carnal knowledge of any person against the order of nature; or has carnal knowledge of an animal; or permits a male person to have carnal knowledge of him or her against the order of nature shall be guilty of a felony”.

Kanyongolo said that when reviewing the laws, there is need that a balance should be struck between all the necessary legal mandates.

Professor Edge Kanyongolo
Professor Edge Kanyongolo; A balance must be struck.

‘’Whether the laws need to be reviewed will emerge from the on-going debate as well as assessments of the Law Commission which, hopefully, will also give direction on how a balance should be struck between section 153 of the Penal Code, and the sections of the Constitution which guarantee the rights to privacy, dignity and equality,’’ said Kanyongolo, in an email response on Monday

In December 2015, government through the ministry of justice and constitutional affairs announced that there will be a moratorium placed on anti-homosexuality laws in Malawi, effectively suspending enforcement of these laws until a decision is made regarding repeal.

It is highly asserted that the Malawi government has been playing mum on these laws for fear of going the opposite way with the donor community.

A report by Jurist in 2015 revealed that the US alone, whose Ambassador Virginia Palmer had fallen to criticism on social media for rallying against the arrest of a gay couple in Lilongwe, gives to the sub-Saharan region $350 Million to promote gay rights.

This has seen critics arguing that government would then be forced to please the donor community instead. In 2011, the Malawi Law Commission was ordered to review a couple of anti-gay but the exercise never came to fruition.

Religious groupings have incessantly opposed the legalization of homosexuality, something which recently was said to be the reason Malawi is passing through hard times as claimed by the CCAP synod of Livingstonia.

With all the debate fueling up, the question remains whether gays are finally free in Malawi or not.