“I will give you a scaring sentence so that the public be protected from people like you so that we are not tempted to emulate this horrendous example. We are sitting here to represent the Malawi society, which I do not believe is ready at this point in time to see its sons getting married to other sons or conducting engagement ceremonies,” said Magistrate Nyakwawa Usiwausiwa in his ruling, imposing the maximum penalty of 14 years in prison with hard labour to the defendants who were found guilty of having committed “unnatural offenses” and “indecent practices between males” under the Malawi Penal Code in 2010.
At the outset, it is important to appreciate that the Malawi Constitution does not specifically prohibit discrimination of any person on the grounds of sexual orientation.
In fact, Section 20 of the Malawi Constitution provides that all persons are, under any law, guaranteed equal and effective protection against discrimination on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, property, birth or other status.
However, Sections 137, 153, 154, and 156 of the Malawi Penal Code criminalise indecent practices between males or between females. Men who are found guilty of such offences can be sentenced up to the maximum period of 14 years. Women have a lenient penalty of 5 years. Why is there a discrepancy in meting out punishment between men and women?
No wonder one is tempted to conclude that such sections of the Malawi Penal Code are unconstitutional as they enforce discrimination based on gender and sexual orientation.
It is against this background that Jana Gonani and Wim Akster recently want the High Court, sitting as a Constitutional Court, to declare that indulging in homosexuality should not be regarded as a crime in the country. In fact, they have put up a logically sound and strong case.
Interestingly, the case has triggered the attention of many religious groups in Malawi who have so far held a series of national marches to protest against same-sex marriage and the decriminalization of homosexuality.
One wonders what is special with homosexuality for faith groups in Malawi. Doesn’t the Bible condemn theft, adultery, murder, corruption, and homosexuality on an equal footing? Is one sin more serious than the other? Why are faith groups quiet when the government coffers are being plundered like nobody’s business? Why do religious adherents only come out to make a cacophony over homosexuality?
Other lingering questions are, is homosexuality natural? Does homosexuality exist in animals?
According to University of Oslo zoologist Petter Böckman, about 1,500 animal species are known to practice same-sex coupling, including bears, gorillas, flamingos, owls, salmon, and many others.
If homosexuality is natural in the animal kingdom, then there is the question of why evolution hasn’t eliminated this trait from the gene pool, since it doesn’t lead to reproduction.
It is important to note that not every sexual act has a reproductive function. Some animals and humans enjoy sex just for pleasure.
We can continue to ask more questions. If criminalising homosexuals is unconstitutional, why did President Bingu wa Mutharika pardon homosexuals Tiwonge Chimbalanga and Steven Monjeza on 29 May 2010? Why did the Malawian government under the tutelage of President Joyce Banda suspend all laws that criminalized homosexuality on 5 November 2012?
In conclusion, much as I do not subscribe to same-sex marriages and homosexuality in Malawi, it is important that religious leaders take a vehement stand against other vices too, including the rampant corruption that is derailing the country’s progress.
Instead of religious leaders concentrating on amassing wealth and getting miracle money, they should preach against theft, homosexuality, corruption, and adultery as well.
