Transcript Engaging Faith communities on LGBTI issues in Malawi

A presentation by Makhumbo R. Munthali, CHRR
At ARASA 2014 Annual Partnership Forum (APF)
OUTLINE
 About CHRR
 A Brief Overview of Malawi’s Primitive Laws and the
Supremacy of the constitution over any legislation
 the Review of Malawi’s Primitive Laws: The High
Court Case and Its aftermath
 What Impact Will the Outcome of the Case have on
our Advocacy Work in Malawi? Threats and
Opportunities?
 Malawi’s 2014 Tripartite Elections: How are we
preparing streamlining our advocacy strategies as
elections approach in the country?
 LGBI Issues in Malawi’s mainstream media
ABOUT CHRR
 Centre for Human Rights and Rehabilitation (CHRR) was
established on 2 February 1995 and is registered under the
Trustees Act of 1992.
 CHRR envisions a Malawi with a vibrant culture which
embraces the values of democracy and human rights for
all
 CHRR’s mission is to contribute towards the protection,
promotion and consolidation good governance and
democracy by empowering rural and urban communities
About CHRR conti….
to become aware of and exercise their rights through
capacity building, research, advocacy and network
 CHRR’s Values: respect for human rights; equality
and
equity;
impartiality;
non-discrimination;
transparency and accountability; and rule of law
 Since its inception in 1995, CHRR has championed its
work at national level, SADC level through the SADC
work at national level, SADC level through the
About CHRR conti…
CHRR has championed its through the SADC Human
Rights Defenders Network at which it sits in the board,
continental level through the African Commission on
Human and Peoples using its observer status since
April 1998, and UN level through different UN
mechanisms such as International Convention on Civil
and Political Rights (ICCPR) and the Universal Period
Review (UPR
An Overview of Malawi’s Punitive Laws
and Supremacy of the constitution
 Section 153 and 156 of Malawi’s Penal code criminalise
sexual conduct between men and anyone convicted faces up to
14 years’ imprisonment, with or without corporal punishment.
 Section 137A of the penal code criminalises “indecent
practices between females”, with anyone found guilty liable to
five years in prison.
 “The laws which criminalise same-sex sexual conduct were a
product of colonialism, introduce at a time when human rights
were not foundational to the legal system” – Gift
Mwakhwawa, Former Malawi Law Society President
An Overview of Malawi’s Punitive Laws
and Supremacy of the Constitution
 In Malawi, homosexuality became contentious in
2009 when two men were arrested and charged with
public indecency for getting married in a traditional
ceremony. However, they were released a few days
later after the emerging pressure both international
community and local human rights institutions e.g.
CHRR and CEDEP
An Overview of Malawi’s Punitive Laws
and Supremacy of the constitution
 In May 2012, President Joyce Banda initially pledged to repeal the law but
later declared that Malawi was “not ready” to decriminalise homosexuality
after receiving public pressure against such commitments.
 These laws that criminalise adult consensual same sex sexual relations and
all other punitive laws used against men who have sex with men and
transgender people do not only infringe upon international human rights
standards, and undermine the effectiveness of HIV programmes, limiting
the ability of members of these populations at higher risk, but also are in
contravention with constitution of Malawi [the supreme law of the land]
which puts protection and promotion of human rights for all at the centre of
legal guarantees.
An Overview of Malawi’s Punitive Laws
and the Supremacy of the constitution
 For instance, section 5 of Malawi’s constitution states
that “any act of government or any law that is
inconsistent with the provision of this constitution
shall to the extent of such inconsistency, be invalid”.
 In addition, Section 10(1) of Malawi’s constitution
provides that “in the interpretation of all laws and in
the resolution of political disputes, the provisions of
this constitution shall be regarded as the supreme
arbiter and ultimate source of authority.
Overview of Malawi’s Punitive Laws and
the Supremacy of the constitution
 Maintaining the supremacy, constitutionalism and human
rights, the constitution has to be interpreted in such a
manner where values of an open and democratic society are
promoted, human rights are central and where necessary
have regard to current public international law norms and
comparable foreign case law – The Republic of Malawi
Constitution Act, S 1(2)
 Section 12 (iv) provides that “inherent dignity and worth of
each human being requires that the state and all persons
shall recognise and protect fundamental human rights and
afford protection to the rights and views of all individuals,
groups and minorities whether or not they are entitled to
vote or not
The Review of Malawi’s punitive laws:
The High Court Case and aftermath
Friends of the Court: Nkhata (Dean Of Faculty of Law, Chancellor College), Mtambo
(CHRR), Trapence (CEDEP) and Tushabe (MANERELA+) strategizing at outside the
High Court
The Review of Malawi’s Punitive Laws:
The High Court Case and its aftermath
 The High Court of Malawi towards end of last year moved
to review the sentences imposed by lower courts on three
people convicted under section 153(a) of the Penal Code.
 The High Court made the decision by ‘exercising its own
jurisdiction under the constitution and the Courts Act’.
 And just as remarkably, the Court issued an open call to
all interested parties – such as the Malawi Law Society,
the Malawi Human Rights Commission, Civil Society
organisation (both locally and internationally),religious
groupings and individuals – to apply and join the matter as
amic curias. The high court is result of our advocacy
work.
The Review of Malawi’s Punitive Laws:
The High Court Case and aftermath
 CHRR and CEDEP joined the case as friends of court and have
engaged a team of lawyers.
 The two organisations also successfully convinced the Malawi Law
Society, The University of Malawi, Chancellor College Faculty of
Law, and a religious network MANERELA+ to respond positively
to the high court’s call to join the case as friends of court
 We also influenced one gay person to join the case and legal team to
represent him.
 We are collaborating with the UN family on the case and other
parties within the region-ARASA, HIVOS, OSISA e.t.c. on the case
The Review of Malawi’s Punitive Laws:
The High Court Case and its aftermath
 The High court in January dismissed objections by the Attorney
General (AG) stopping the court from proceedings with its intentions
to review constitutionality of the country’s “sodomy” laws which
criminalise consensual sexual activity between individuals of the same
sex in relation to section 20(1) of the constitution.
 Justice Dunstain Mwaungulu challenged the objections, saying the
certification was not mandatory. Justice Mwaungulu’s ruling means
now the Constitutional Court comprised of seven judges will, on
March 17, 2014, commenced its review on the constitutionality of
the country’s sodomy laws and the convictions the lower courts
made in 2011
 The landmark move could lead to the repeal of the infamous section
153(a) of the Penal Code if the judges rule that is unconstitutional.
The Review of Malawi’s
Punitive Laws: The High Court
Case and its aftermath
 In February, 2014, Government through the Attorney
General (AG), obtained a stay order at the Supreme
Court of Appeal,
preventing the review from
proceeding. The AG argued that the matter was not
certified by the Chief Justice. Religious groups and
some opposition political parties have also opposed
the case review, arguing that a national referendum is
the only way to settle the matter. However, the
Muslim Association of Malawi (MAM) have taken a
more radical position, proposing instead a death
What impact will the outcome of the case
have on our advocacy work in Malawi?
Threats and Opportunities in this Litigation
Path
 Losing the case may affect the gains so far registered.
It might have the effects on the gains already made if
we lose the court case.
 It can also fuel and “legitimise” homophobia, trans
phobia, hate and discrimination against the LGBTI
community.
 It’s a threat to the good will we have enjoyed in the
past.
2014 ELECTIONS AND OUR
STRATEGIES CONTINUED…
.
 Muluzi (UDF)
Chakwera (MCP)

Mutharika (DPP)
Banda (PP)
2014 ELECTIONS AND
ADVOCACY STRATIGIES
 Elections coming up on 20th May 20114
 UDF(Atupele Muluzi), MCP (Rev.Dr. Lazarus
Chakwera), DPP (Prof. Peter Mutharika) and
PP(Joyce Banda) are hot contenders for the
Presidential race.
 Our advocacy initiatives on LGBTI are being derailed
and have turned political. The leadership is silent and
is postponing the initiatives to after elections. The
issues on LGBTI are being pushed to a referendum
2014 ELECTIONS AND
ADVOCACY STRATEGY
 We are planning to meet other political parties to
commit to supporting LGBTI work in Malawi
 We are engaging presidential and vice president
candidates through public debates.
 We are utilising the media space to engage them on
LGBTI issues. CHRR and CEDEP hosts a weekly
column in one of Malawi’s leading papers where
LGBTI issues are ably elaborated. Issues of LGBTI
in relation to elections have been covered under such
 Continuous engagement with Religious Leaders/
traditional leaders to openly participate in
discussions.
High Court Case in the Media
 MAM Calls for Death Penalty for Gays –Nation Online
February 22 2014
 Government wants CJ to certify gay case – Nation
OnlineFebruary 15, 2014
 Supreme Court stops Procedings on gay case February
3, 2014
 MHRC underfire over gay rights – Nation Online
January 25, 2014
 Chakwera, Mutharika, Atupele trashed over gay
referendum in Malawi- Nyasa Times October 15, 2013
High Court Case and LGBI Issues
in the Media
 “Kill the gay” penalty proposed by Malawi Muslim
Association February 15, 2014 – Nyasatimes
 Malawi churches call for referendum on
homosexuality February 19, 2014- Nyasa Times
 Malawi government rejects anti-gay law advanced by
Muslims February 19, 2014 Nyasa Timess