LGBTIQ+ rights in Malawi: Colonial era penal codes fan intolerance

The entire social edifice in Malawi could be what breeds intolerance for the LGBTIQ+ community and leading to their rights not being seen as human rights.

Lawrence Phiri Chipili, the executive director of Lesbian, Intersex, Transgender and other Extensions (LITE) based in Malawi, says policies that exist in the country are generally not inclusive of minority groups.

But how much of the hate and intolerance directed at Malawi’s LGBTIQ+ community is Malawian?

For instance, when former president Bingu Mutharika pardoned Monjeza and Chimbalanga from four years of harsh imprisonment in 2014, he hinted at the fact that even his “humanitarian grounds” were a bit shaky. He still said their same-sex marriage was a crime against “our culture, our religion, and our laws”.

The laws that criminalise same-sex marriage in Malawi have colonial roots and were enacted in 1930 during British colonial rule. After gaining independence in 1964 Malawi has kept these, even when the British repealed them from common law in 1967.

In many cases, “our culture” usually refers to the Victorian morality that many Africans easily think originates in Africa. And “our religion” is often what came with the missionaries. The Victorian era is, of course, infamous for amplifying patriarchy and introducing rigid gender roles that have impacted every sphere of modern life.

“It’s basically the same cultural factors. The same religious, political and economic factors that are actually contributing to people having challenges in maintaining and exercising their human rights just like any other person,” said Chipili.

Under the weight of these and the lack of security that people experience it is difficult for the country to deal with bigotry and intolerance.

Chipili says this makes the justice system useless as an avenue for enforcing the human rights of the LGBTIQ+ community since a lot of cases before the courts are usually silenced.

“It is the lack of security that people experience. And the deliberate ignorance our government tends to have towards LGBTIQ+ people.”

“So a case goes to court and there is silence. That’s what happens.”

Phiri says a lot of LGBTIQ+ organisations that have lodged cases in court on behalf of members of the community have not publicised those cases. “It is because of the issue of security,” Phiri says.

“When a case has gone viral and a lot of people are talking about it definitely gets a lot of attention. It creates that attention in the courts as well to the point that they really have to do something about it.”

There are instances when Malawian courts have been forced to listen. The international pressure that followed Monjeza and Chimbalanga’s imprisonment led to a 2012 moratorium suspending the enforcement of laws that decriminalise same-sex relationships.

“International influence is one of the things that have actually played a great role in terms of changing and accelerating some of these initiatives in Malawi.”

Malawi rejected 17 recommendations related to decriminalising same-sex relationships made by the United Nation’s Human Rights Council’s Universal Perioding Review in 2015. They made only two concessions, to ensure that LGBTIQ+ people got access to health and security.

But Phiri says sometimes this is also in bad faith. “They sign up to international recommendations and all. And yet nothing happens on the ground. So, technically, that alone is something that is accelerating the levels of stigma and hate that people are experiencing in different ecosystems.”

A pattern of dehumanising and colonising our bodies

Courts that listen could make a big difference according to Chipili. “For me, I’m trying to legally change my name and my gender marker. And I plan to do that publicly.”

While Chipili has already submitted a letter to the registrar asking for a name and gender marker change, there is no telling what happens next. When Monjeza and Chimbalanga were released from prison they couldn’t live the lives they chose freely in Malawi and were forced into exile.

“Whatever is going to happen, we will see.”

Founder of House of Rainbow that provides a safe place and welcoming for LGBTIQ+ asylum seekers, Reverend Jide Macaulay, says people that use a combination of culture, religion and draconian laws to persecute homosexuals are misplaced on all three.

“There is a pattern of dehumanising and colonising our bodies,” Macaulay says.

Macaulay says those who discriminate against the LGBTIQ+ community should take a good look at the documented record of human sexuality before colonialism and the arrival of missionaries.

“Now if every country in Africa, first of all, can get rid of the colonial laws that punish same-sex relationships and behaviour. And then look at what was in place before the colonists came to our countries. How did we behave?”

There is also a level of hypocrisy as well, Macaulay says, when somebody wears a suit and tie and still wants to say homosexuality is un-African. The judges in Malawi still wear bleached horse-tail perukes made famous during the reign of Charles II of England in the seventeenth century.

Christian groups formed part of the lobby that influenced the suspension of the moratorium on laws decriminalising Malawi’s LGBTIQ+ community. Macaulay says the fervent intolerance they preach is misguided.

“Another thing that people need to understand is that because we exercise our human rights for same-sex relationships, it doesn’t in any way diminish heterosexual relationships.

The reason, Macaulay says, is that people think that if the LGBTIQ+ community is allowed to exercise their human rights heterosexual relationships will be in jeopardy.

“So there is all this madness about how same-sex relationships are going to affect the fabric of our society. How they are going to affect morals, the heterosexual community and relationships.”

Macaulay says this intolerance preached by religious groups puts Christianity in an awkward position because “Jesus Christ himself is an advocate for gay rights.”