A Critical Analysis in Relation to Human Rights in Malawi

CAVENDISH UNIVERSITY ZAMBIA

School of Law

HOMOSEXUALITY: A CRITICAL ANALYSIS IN RELATION TO HUMAN RIGHTS IN MALAWI

NATASHA KAFOTEKA

(004-700)

A Dissertation submitted to the School of Law, in partial fulfilment of the award of Bachelor in of Law Degree (LLB) at Cavendish University Zambia

CUZ 2020

Homosexuality: A Critical Analysis in Relation to Human Rights in Malawi 004-700

ABSTRACT

HOMOSEXUALITY: A CRITICAL ANALYSIS IN HUMAN RIGHTS IN MALAWI: Despite the existence of laws criminalising sexual activity between same-sex couplings in the Malawi Penal Code, and rising awareness of human rights related to sexuality on the international plane, the topic of homosexuality in relation to human rights was yet to be addressed in the domestic context until R v Soko and another. While the country is yet to make progressive changes on its laws regarding homosexuality, public opinion has been identified as playing a major role in the decriminalisation process. This project sought to ascertain the reasons the average Malawian can give for opposing homosexuality, in order to determine if such opinions may be rationalised by existing legal principles. In doing so, possible recommendations could then be made on what measures can be taken to change public opinions on the matter of homosexuality and thus pave the way for decriminalisation. Through a mixed- model research design, secondary data analysis and a literature review, the study found that a majority of Malawians did not agree with homosexuality, and supported the imposition of legal restrictions for homosexual activity in the country. However, more educated participants were shown to be more tolerant of same-sex activity. To this end, the study concluded by detailing measures that can be taken in the country to better the education sector in the hopes of one day repealing the homosexuality laws in the country, which violate the human rights of sexual minorities.

Homosexuality: A Critical Analysis in Relation to Human Rights in Malawi 004-700

DEDICATION

This project is dedicated firstly to the family I am blessed with; Dad, Mum, Pempho, Roy and Keelan.

Secondly, I dedicate this book to the friends who have become family. Aunt Maureen, Nicky, Maya, Raeesa and Sarang.

You were all there to encourage me when I felt discouraged, and to make me laugh when I wanted to cry with frustration. I thank God for you all every day.

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Homosexuality: A Critical Analysis in Relation to Human Rights in Malawi 004-700

ACKNOWLEDGEMENTS

This research project could not have been completed without the help of many people. Firstly, I wish to thank God, who makes all things possible, and without whom I am lost.

Secondly, I would like to thank my supervisor Ms. K. Chinambu for her patience and guidance in completing this project.

I would like to thank my friends Tafadzwa Maisva and Raeesa Jagot for always being there to proof-read my work, and offer their words of encouragement. I would not have been able to complete this project without you.

I would further like to thank my mother Mrs. Chrissie Kafoteka, for always being there to help in any and every way she could, my brother Roy Kafoteka, who helped me with my data entry.

I would like to thank Dr. Jones Harambu Mawerenga for taking the time to meet with me and providing me with his invaluable book The Homosexuality Debate in Malawi; Mr. Eddie Kalonga for offering me advice and assistance along the way. I would also like to thank Senior Prophet Dr. Rex Kalolo (M.D) executive secretary of Prophetic Ministries Association of Malawi (PROMAM) and Overseer of Altar of Liberty Church of All Nations (ALCOAN) and executive member of Faith Leaders Platform in Malawi; Ms. Sarai Chisala-Tempelhoff, Senior Legal Researcher & Founder of the Gender and Justice Unit; Mr. Endson Kalolo, Traditional Authority of Mapuyu village, Lilongwe; and Member of Parliament for Lilongwe Mapuyu North, Mr. Horace Levus Chipuwa.

Lastly to every person who took the time to participate in my questionnaire and shared it with others, thank you.

Homosexuality: A Critical Analysis in Relation to Human Rights in Malawi 004-700

I hereby declare that this project is my own original work and research and that where other people’s work has been used; it has been properly acknowledged and referenced in good order. I have not used work previously produced by another student or any other person to hand in as my own. I hereby submit my project in partial fulfilment of the requirement of Cavendish University Zambia’s Bachelor in Law program with the approval of my supervisor.

Signature: ...... Date: ......

Natasha Kafoteka

Homosexuality: A Critical Analysis in Relation to Human Rights in Malawi 004-700

FACULTY OF LAW

I recommend that the obligatory essay under my supervision

NATASHA KAFOTEKA

Entitled: HOMOSEXUALITY: A CRITICAL ANALYSIS IN RELATION TO HUMAN RIGHTS IN MALAWI.

Be accepted for examination. I have checked it carefully and I am satisfied that it fulfils the requirement pertaining to the format as laid down in the regulations governing obligatory essays.

Supervisor: ...... Date: ......

MS. KAFWILU CHINAMBU

Homosexuality: A Critical Analysis in Relation to Human Rights in Malawi 004-700

TABLE OF CONTENTS

DEDICATION ...... iii ACKNOWLEDGEMENTS ...... iv COPYRIGHT DECLARATION ...... v LIST OF ACRONYMS ...... ix CHAPTER ONE: GENERAL INTRODUCTION ...... 1 1.1. INTRODUCTION ...... 1 1.2. BACKGROUND ...... 3 1.3. STATEMENT OF THE PROBLEM ...... 7 1.4. RATIONALE ...... 7 1.5. HYPOTHESIS ...... 7 1.6. OBJECTIVES ...... 8 1.7. RESEARCH QUESTIONS ...... 8 1.8. OVERVIEW ...... 8 1.9. CONCLUSION ...... 9 CHAPTER TWO: LITERATURE REVIEW ...... 10 2.1. INTRODUCTION ...... 10 2.2. HOMOSEXUALITY IN RELATION TO HUMAN RIGHTS ...... 10 2.3. A HISTORY OF HOMOSEXUALITY ...... 15 2.4. CULTURAL AND RELIGIOUS FACTORS ...... 16 2.5. HOMOSEXUALITY AND PUBLIC HEALTH ...... 19 2.6. HOMOSEXUALITY AND MORALITY ...... 20 2.7. EDUCATION ...... 21 2.8. CONCLUSION ...... 22 CHAPTER THREE: RESEARCH METHODOLOGY ...... 24 3.1. INTRODUCTION ...... 24 3.2. METHODOLOGY ...... 24 3.3. ETHICAL CONSIDERATIONS ...... 25 3.4. DATA METHODS ...... 25 3.5. SAMPLING ...... 28 3.6. QUESTIONNAIRE ...... 29 3.7. CHALLENGES ...... 29 3.8. CONCLUSIONS ...... 30 CHAPTER FOUR: DATA ANALYSIS ...... 31 4.1. INTRODUCTION ...... 31

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4.2. SECONDARY DATA ANALYSIS: THE AFROBAROMETER SURVEY ...... 31 4.3. PRIMARY DATA FINDINGS: HOMOSEXUALITY IN MALAWI ...... 32 4.3.1. DEMOGRAPHICS ...... 32 4.3.2. KNOWLEDGE AND OPINIONS OF HOMOSEXUALITY ...... 33 4.3.3. CONCLUSIONS ON LEVELS OF TOLERANCE ...... 35 4.3.4. EXPLAINING THE VIEWS ON HOMOSEXUALITY ...... 35 4.3.5. LEGAL RESTRICTIONS ON HOMOSEXUALITY ...... 38 4.3.6. SANCTIONS FOR HOMOSEXUALITY ...... 39 4.3.7. KNOWLEDGE AND OPINIONS ON MSMs ...... 41 4.3.8. HOMOSEXUALITY AND HIV/AIDS ...... 44 4.4. PRIMARY DATA ANALYSIS ...... 45 4.5. CONCLUSIONS ...... 52 CHAPTER FIVE: CONCLUSIONS AND RECOMMENDATIONS ...... 53 5.1. INTRODUCTION ...... 53 5.2. SUMMARY OF CHAPTERS ...... 53 5.3. FINDINGS AND RECOMMENDATIONS ...... 54 5.3.1 FINDINGS ...... 54 5.3.2. RECOMMENDATIONS ...... 56 5.3.2.1. SUGGESTIONS FROM PUBLIC INSTITUTIONS ...... 56 5.3.2.2. EDUCATION ...... 57 5.3.2.3. PUBLIC HEALTH ...... 60 5.4. CONCLUSION ...... 61 BIBLIOGRAPHY ...... 62 STATUTES ...... 62 LIST OF AUTHORITIES ...... 62 BOOKS ...... 63 JOURNAL ARTICLES ...... 63 REPORTS ...... 64 DISSERTATIONS, THESES, PAPERS ...... 64 NEWSPAPER ARTICLES ...... 64 WEBSITES ...... 64 APPENDIX I ...... 69 APPENDIX II ...... 75

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LIST OF ACRONYMS

AIDS Acquired Immune Deficiency Syndrome AMSHer The African Men for Sexual Health and Rights CEDEP The Centre for the Development of People CHRR Centre for Human Rights and Rehabilitation DAPP Malawi Development Aid from People to People (in) Malawi HIV Human Immunodeficiency Virus HREA Human Rights Education Associates ICCPR International Covenant for Civil and Political Rights ICESR International Covenant for Economic Social and Cultural Rights ILO International Labour Organisation LGBT Lesbian, Gay, Bisexual Transgender (and related communities) MLS Malawi Law Society MSM/s Men who have sex with Men/Males who have sex with Males SOGI Rights/SOGI Sexual Orientation and Gender Identity Human Rights Human Rights UDHR Universal Declaration of Human Rights UNCAT United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment UNICEF Malawi United Nations Children’s Fund Malawi USAID The United States Agency for International Development YPCM Young Pastors Coalition of Malawi

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CHAPTER ONE: GENERAL INTRODUCTION

1.1. INTRODUCTION

The matter of homosexuality has ethical, social, religious and cultural implications in society; each perspective offering arguments for and against de-criminalisation. With the ever-growing push for governments to consider human rights in the implementation and interpretation of their laws, it is worth assessing the main arguments for and against the continued existence of laws in Malawi that criminalise homosexual acts. This chapter focuses on introducing the topic of homosexuality in Malawi, establishes the background of the subject and includes the research questions that the study seeks to answer by its conclusion.

Although the law itself does not contain a definition of the term “homosexuality” the illegality of same sex intercourse cannot be doubted. For example, Section 153 of the Malawi Penal Code reads1,

Any person who—

(a) has carnal knowledge of any person against the order of nature; or (c) permits a male person to have carnal knowledge of him or her against the order of nature,

is guilty of a felony and is liable to imprisonment for fourteen years with or without corporal punishment.

1 CAP 7:01 of the Laws of Malawi

Homosexuality: A Critical Analysis in Relation to Human Rights in Malawi 004-700

An attempt of such acts is further classed under the law as felony. Section 154 of the Penal Code continues:

Any person who attempts to commit any of the offences specified in the last preceding section shall be guilty of a felony and shall be liable to imprisonment for seven years, with or without corporal punishment.

Unnatural offences may also refer to the acts detailed under Section 156 of the Penal Code, which concerns indecent practices between males;

Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, shall be guilty of a felony and shall be liable to imprisonment for five years, with or without corporal punishment.

On the other hand, Section 137A concerns “indecent practices” between females, reading:

Any female person who, whether in public or private, commits any act of gross indecency with another female person, or procures another female person to commit any act of gross indecency with her, or attempts to procure the commission of any such act by any female person with herself or with another female person, whether in public or private, shall be guilty of an offence and shall be liable to imprisonment for five years.

Therefore, although the law does not expressly define the term homosexuality and classify it as illegal, from the above it is clear that there is little room left for misinterpretation as to whether sexual activities occurring between same-sex individuals are criminal acts or not.

However, what is clear is that the matter of homosexuality is a human rights issue, whether one is arguing is in support of or against the laws that are currently in place. Statistically, there is heavy opposition to homosexual persons in Malawi. On the one hand, this could be seen as a prime example of democracy in action, because it is the will of the people for the laws to remain in place. On the other, it could be seen as allowing certain people to enjoy their rights to practice a religion of their choice and exercise democracy at the expense of other people’s rights to non- discrimination based on their sexual orientation, marriage and family.

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It is the goal of this research project to conduct a critical analysis of the main arguments for and against the continued maintenance provisions of Sections 137A, 153, 154 and 156, in hopes of investigating whether such laws are justifiable when measured in terms of the main schools of thought in the law of jurisprudence.

1.2. BACKGROUND

Having been debated at length in developed countries, homosexuality was not a common topic of discussion in the more conservative country of Malawi. Although the subject matter was not unheard of, scholarly discussions on homosexuality and the rights of sexual minorities in the country were almost non-existent, with the exception of foreign opinions on the matter. For instance, in 2005, the United Nations Human Rights Committee observed that even after 17 years of being a state-party to the International Covenant on Civil and Political Rights (ICCPR), (which provided for rights to privacy, family, marriage and non-discrimination amongst others) cases of violence against people engaging in same-sex relationships were common in Malawi.2

This changed with the landmark case of R v Soko and Another.3 Two men, Steven Monjeza Soko and Tiwonge Chimbalanga Kachepa were arrested and charged with acting in direct contravention of Section 153 of the Penal Code after holding an engagement ceremony in Blantyre. For their acts, the two were given the maximum sentence under the law for the act - 14 years imprisonment. The media attention garnered by the case captured the attention of both the average Malawian, and international bodies like the United Nations for different reasons. External players were displeased with Malawi enforcing laws that criminalised homosexuality; arguing that such laws were against principles of human rights, while Malawians by and large condemned the acts of Chimbalanga and Soko for their “sinful” nature. 4 The presiding judge over the case, chief resident magistrate for the southern region Nyakwawa Usfwa-kfsiwa seemed to share this sentiment, ordering a psychiatric evaluation for the two men and stating that the sentence would protect the public from homosexual acts and prevent them from being emulated. He explained, “…We are sitting in place of 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 cohabiting or conducting engagement ceremonies. I do not believe Malawi is ready to smile at her

216 December 1966, United Nations Treaty Series, vol. 999, p. 171; Articles 17, 23, 2 and 26 respectively. 3 R v Steven Monjeza Soko and Tiwonge Chimbalanga Kachepa (359 of 2009) [2010] MWHC 2 (20 May 2010) 4 (BBC, 2010) available at https://www.bbc.com/news/10194057 as accessed on 20 March 2020

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daughters marrying each other… So, this case being "the first of its kind", to me, that becomes "the worst of its kind".” …I sentence Steven Monjeza and Tiwonge Chimbalanga to 14 years IHL each and that is the maximum under Section 153 of the Penal Code, for the reasons I have explained above.”

This ruling caused immense immediate backlash. In June 2010, as the threat of losing donor funding loomed, then president Bingu wa Mutharika granted Chimbalanga and Soko with a presidential pardon. However, the President remarked that their actions were not only “unheard of in Malawi” but had been crimes against “our culture, our religion and our laws”.5

The laws criminalising homosexuality remain in place despite the many actions taken since Chimbalanga and Soko were pardoned. For instance, successor to Bingu wa Mutharika Joyce Banda vowed to decriminalise homosexuality when she took office in hopes of mending the country’s relationship with “traditional development partners who were uncomfortable with our bad laws”. However, in September of 2012 she expressed the opinion that Malawians were not in a place where such legal revisions could realistically take place, a sentiment which mirrored the words of Nyakwawa Usfwa-kfsiwa in his judgement of the Chimbalanga-Soko case.6

Despite this opinion and observing that “…the vast majority of society has not accepted homosexuality and homosexuality is not practiced in open”, the UNHRC recommended the sections of the Penal Code criminalising homosexuality be repealed, and referred the matter to the Malawi Law Commission for review in 2012.7 This lead to a moratorium being placed on the laws due to their possible unconstitutionality, and police were ordered not to arrest individuals who contravened Sections 153, 154 and 156 of the Penal Code until the matter of homosexuality had been debated at parliament. 8

5 President Bingu wa Mutharika, speaking on 29 May 2010 http://www.uk.mobilereuters.com/article/idUKTRE64S18Z20100529?irpc=932 accessed 20 March 2020 President Bingu wa Mutharika speaking on May 29 2010 as quoted by (Price, 2011, p. 530) 6 available at https://www.theguardian.com/world/2012/may/18/malawi-president-vows-legalise- homosexuality as accessed on 20 March 2020; (Nyasatimes.com, 2012) available at http://wwwnyasatimes.com/malawi-not-ready-to-legalise-homosexuality-says-president-banda/ as accessed on 20 March 2020; R v Steven Monjeza Soko and Tiwonge Chimbalanga Kachepa (359 of 2009) [2010] MWHC 2 (20 May 2010) 7 (Mawerenga, 2018) 8 (BBC News, 2012) available at http://www.bbc.com/news/world-africa-20209802 as accessed on 19 March 2020

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Such moves were condemned by religious groups in the country for being seen as caving to international pressure. In 2012, the High Court of Malawi announced a constitutional review of the homosexuality laws in the country, issuing an open call for interested parties to join the matter as amici curiae (friends of the courts). The matter was to be decided based on a review of three separate cases in which three men – Amon Champyuni, Matthew Belo and Mussa Chiwisi – had each been convicted of engaging in homosexual activities.9

However, in July of 2015, President Arthur Peter Mutharika further signed a document in partnership with the country’s global fund initiative, stating that in return for donor funding, due rights would be given to gays and lesbians in Malawi. Just five months later, the moratorium that had been imposed on arrests for the contravention of homosexual laws by Joyce Banda was infringed with the arrest of Cuthbert Kulemela and Kelvin Gonani. The two were accused of having sexual intercourse in Gonani’s house, but were soon released when donors to the country expressed disapproval of the arrests.10 Justice Minister Samuel Tembenu stated that the laws would remain suspended pending a decision on whether or not to repeal the legislation, which would be done in consultation with the people of Malawi as prescribed by the Constitution.11

In 2015 President Arthur Peter Mutharika told Malawi Broadcasting Television that his government would resort to calling the matter for referendum. This move was criticised as being a means for escaping confrontation with donors to the country by letting the people of Malawi take the responsibility of the outcome instead of Mutharika. It was further opposed by human rights campaigners on the premise that fundamental human rights could not be subjected to referendums.12 Nevertheless, the country was seen to further solidify its stance on the matter by omitting same-sex unions from the definition of “marriage” under the Marriage, Divorce and Family Relations Act that came into force in February 2015.13

In February of 2016, still disapproving of the leadership bowing to the demands of external players, the Young Pastors Coalition of Malawi (YPCM) sought an injunction at the High Court in Mzuzu to have the moratorium lifted so that same-sex couples would be prosecuted as

9 (Mawerenga, 2018, pp. 80-81) 10 (Stewart, 2015) available at https://76crimes.com/2015/12/10/malawi-police-to-end-moratorium-on-anti- gay-arrests/ as accessed on 19 March 2020 11 (Mawerenga, 2018, p. 80) 12 (Mawerenga, 2018, p. 85) 13 Act No.4 of 2015

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provided by the laws of Malawi. The application was granted, and the moratorium was lifted. The rationale behind this was that suspending the laws resulted in a selective application of the Penal Code and the suspension of the laws constituted a ultra vires act by the executive branch of the government.14 Presiding over the case, Judge Dingiswayo Madise opined that the order of injunction suspending the moratorium would be sustained until a constitutional review of the case was made.15

As of 2020, it is evident that aside from causing public outrage now and again over the years, the matter of homosexuality in Malawi has not evolved in any perceptible way. However, the international stage tells a different story. The global culture has increasingly been observed to be embracing LGBT rights. While the Constitution is recognised as the supreme law of the land, Malawi’s legal system also comprises of common Law, an attribute which (like the laws criminalising homosexuality) was inherited from its coloniser, Britain.16 Britain decriminalised homosexuality in 1967, through the Sexual Offences Act 1967, which legalized consensual homosexual acts occurring in private and between males over the age of 21.17 Former British colonies such as Trinidad and Tobago and India (which also have common law legal systems) both de-criminalised homosexuality in their respective nations in 2018.18

In June 2019, a unanimous vote , in the High court of Botswana lead to the de-criminalisation of homosexuality on the grounds that such laws were “unconstitutional” and "discriminatory", because sexual orientation is an important attribute of an individual’s personality.19 On the other end of the Spectrum, 2019 in Zambia saw two separate arrests made in connection with homosexual acts ignited tensions between Zambians and Daniel Foote, the United States Ambassador to Zambia. Expressing disgust over the laws and the arrests made because of their discriminatory nature, Foote threatened to cut aid to the country.20

14 (BBC, 2010) available at https://www.bbc.com/news/10190653 as accessed on 20 March 2020; (Masina, 2016) available at https://www.voanews.com/africa/malawi-court-annuls-government-suspension-anti-gay- laws as accessed on 20 March 2020 15 (Mawerenga, 2018, p. 88) 16 See Section 10 of the Constitution 17 Elizabeth II, 1967, Chapter 60, UK Statutes; See Section 1 18 (Dyer, 2018) available at https://www.bangkokpost.com/opinion/opinion/1538306/gay-rights-and-trends- in-global-culture as accessed on 12 July 2020 19 (BBC, 2019) available at https://www.bbc.com/news/world-africa-48594162 as accessed on 20 March 2020 20 (Crawford, 2019) available at https://news.sky.com/story/us-ambassador-shocked-by-zambian-presidents- anti-gay-comments-11876681 as accessed on 18 March 2020

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1.3. STATEMENT OF THE PROBLEM

Section 12(b) of the Constitution places a mandate on the government to recognise and “afford the fullest protection” to “the rights and views of all individuals, groups and minorities”. There is additionally Section 30(3), which in speaking on the rights of every Malawian to development states that “the State shall take measures to introduce reforms aimed at eradicating social injustices and inequalities”. The responsibilities imposed in these Sections to protect the human rights homosexuals are deprived of as minorities and prevent the social injustices they face is arguably at odds with the criminalisation of homosexuality itself.

The argument has been considered from a purely legal perspective, with arguments given for and against homosexuality in each respect. With more countries de-criminalising homosexuality on human rights grounds, both in Africa and on the global scale, Malawi would be expected to follow suit. Indeed, Section 30(4) continues that measures taken on state policy to promote development may be justified as recognitions of the right to development.

However, as a principle of democracy, laws should reflect the views of the people. The issue is therefore that to simply decriminalise homosexuality in a society that has been shown to heavily oppose it would very likely spark public outrage. Indeed, the opinions and will of the Malawian people play a large role in the matter of decriminalisation – if homosexuality is decriminalised it will be the duty of every Malawian to respect and uphold one another’s rights under the Constitution. Therefore, this project seeks to ascertain the reasons the average Malawian can give for opposing homosexuality, in order to determine if such opinions may be rationalised by existing legal principles. In doing so, recommendations may then be made on what measures can be taken to change public opinions on the matter of homosexuality and thus pave the way for de-criminalisation.

1.4. RATIONALE

Without a definite conclusion to the matter, and given the dynamic nature of the subject matter on the global platform, it is likely that such matters are likely to arise again in the future. Therefore, the significance of the project is to attempt to ascertain whether opposing views concerning homosexuality are soundly supported by existing legal theories.

1.5. HYPOTHESIS

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A majority of the Malawian people do not agree with homosexuality or with its decriminalisation, and that such an argument is not supported by legal theory.

1.6. OBJECTIVES

1. To investigate public opinions on homosexuality in Malawi. 2. To investigate whether opinions on homosexuality may be affected by education. 3. To evaluate the criminalization of homosexuality in Malawi.

1.7. RESEARCH QUESTIONS

 What are public opinions on homosexuality in Malawi?  Can opinions on homosexuality be affected by education?  Are there any legal principles or theories that justify the laws that criminalise homosexuality in Malawi?

1.8. OVERVIEW

In the hopes of answering the above questions, the proposed chapters, areas of exploration and objectives to be met in exploring them are as follows:

CHAPTER 1: INTRODUCTION

 This chapter introduces the topic of homosexuality in Malawi, provides information on the background of the topic and a statement of the issue to be addressed by the research study. The chapter further states the research objectives to be met.

CHAPTER 2: LITERATURE REVIEW

 This chapter explores existing literature and the contributions that have been made on the topic of homosexuality concerning the origin of laws that criminalize it in Africa. It will additionally showcase the growing narrative that classes such laws as violations of human rights, and bring to light the opposing arguments that have been made if any and whether they may be applied in the context of the current Malawian laws concerning homosexuality.

CHAPTER 3: METHODOLOGY

This chapter will discuss the steps taken in completing the research questionnaire and including method employed, design, collection techniques and sampling techniques used to test the

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hypothesis that a majority of Malawians do not support homosexuality or its decriminalisation and that such an argument is supported by legal theory.

CHAPTER 4: DATA ANALYSIS

The chapter will also present the results of the research questionnaire as well as provide a concise analysis of the results themselves.

CHAPTER 5: CONCLUSION & RECOMMENDATIONS.

This chapter will seek to ascertain whether the country is ready to implement changes in regards to homosexuality laws in light of the evidence presented and the concepts discussed, or if such laws are justified.

1.9. CONCLUSION

This chapter introduced the topic of homosexuality in the context of Malawi, noting that Malawi as a conservative country, may be quick to cite reasons as to why intimate acts occurring between males are abhorrent. However, these reasons usually disregard the effect that such laws have on homosexuals within society and their quality of life. From a legal perspective, it is worth establishing the principles that give the government authority to implement such laws and to continue to keep them in place given the changing perspectives not just in western societies, but in African ones as well, and these will be discussed further in Chapter 2.

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CHAPTER TWO: LITERATURE REVIEW

2.1. INTRODUCTION

Given the controversial nature of the topic of homosexuality, there is much pre-existing literature on the rights of such individuals and how laws criminalising homosexuality are disadvantageous to them in their exercise of inalienable human rights. This chapter will explore the current arguments and critiques that have been made by other scholars in light of the debate for and against homosexuality.

2.2. HOMOSEXUALITY IN RELATION TO HUMAN RIGHTS

A. Fellmeth in State Regulation of Sexuality in International Human Rights Law and Theory, notes that the LGBT+ community has long been denied equal rights under the law, namely to privacy, family and non-discrimination for their sexual orientation.21 Depriving them of these rights is to deprive them of important societal wealth and benefits, things that are necessary for a democratic society. In the same vein, Alan Msosa in Human Rights and Same Sex Intimacies in Malawi posits that the very existence of homosexuality laws in Malawi creates a paradox because there is a clear denial of human rights to a category of people, and yet Malawi is obligated to uphold these same human rights due to its membership of several human rights treaties. Additionally, Section 30(3) of the Constitution, which pertains to the right to development, places a mandate on the state to “take measures to introduce reforms aimed at eradicating social injustices and inequalities”.

21 (Fellmeth, 2008)

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Fellmeth however, further highlights the multi-layered nature of the de-criminalisation process, beginning with the abolishment of laws that criminalise sodomy before the second step, which is to implement laws that then establish an age of consent to acts of sodomy. There is additionally the need to draft laws that protect the rights of homosexuals to family, privacy and non-discrimination.

While it is well established that the above rights may not be freely exercised in relation to homosexuality, A.M Miller in Sexuality and Human Rights and brings to the foreground the notion of “sexual rights”.22 This category of rights includes the right of all persons to be able to freely express their sexual orientation, with due regard for the well-being and rights of others and to do so without fear of persecution, denial of liberty or social interference, amongst others. These sexual rights fall into the category of Sexual Orientation and Gender Identity Rights – or SOGI Rights.

Considering the hostile nature in which Malawians have acted with regards to homosexuality in the past, the concept of sexual rights themselves may seem equally as alien to the culture as alternative sexualities have been deemed to be.

Miller notes that the acknowledgement of alternative sexualities and the related rights are a relatively novel concept, and were not visible during the infancy of human rights law. However, they were visible in criminal law matters of the time, in the form of laws such as those contained in the Malawi Penal Code. The implications of this are twofold- firstly, the question is raised as to what differentiates sexual rights from the other human rights Malawi has come to adopt.

Secondly it brings into scrutiny the notion that homosexual behaviours are alien to the people of Malawi. Indeed, the imposition of laws condemning certain behaviours within a given locale would be strange if no such behaviours had ever been observed there before. This point was also raised by Mawerenga in The Homosexuality Debate in Malawi, although the book focused on the matter from a theological perspective.23Arguably, such laws could have been intended as a preventative measure and intended to be applied if such behaviours ever came to be practised in the country.

Fellmeth attributed the initial enforcement and continued existence of homosexuality laws to political elites being offended by “unconventional” sexuality for cultural and religious reasons. He continues to say that nothing could be more incompatible with a modern understanding of

22 (Miller, 2009) 23 (Mawerenga, 2018, pp. 129-130)

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human rights than regulation which limits human freedom for no other purpose than to reinforce these existing popular prejudices. In Sexual Minorities, Human Rights and Public Health Strategies in Africa, Epprecht, like Fellmeth, shares the belief that homosexuality laws stem from the desire of political figures to placate their constituents. 24 This trend, which Epprecht refers to as populism, has both positive and negative connotations. On one hand it may refer to politicians who change colours according to the trends of the time; they will oppose or support homosexuality laws purely because the people oppose or support it also (which perhaps ties into the monetisation of the debate for and against homosexuality laws in Malawi that was raised in Gender, Gays and Gain: The Sexualised Politics of Donor Aid in Malawi). On the other hand, populism may be taken as synonymous with the word “democratic” and thus is simply a true reflection of the will of the people.

Further to the point, Fellmeth posits that all arguments in favour of maintaining homosexuality laws are framed from a purely textual reading of human rights, and raises the question of why the same rights aren’t deprived from certain people such as abusive spouses, child molesters and rapists.25 Within the context of protecting the traditional institution of family, it is true that there is need for further conversation on whether the abusive spouses and rapists and molesters should be able to enjoy their rights to family, and even to some extent, right to privacy. However, it could equally be said that the dismissal of popular prejudices or cultural beliefs is a textual reading of the concept of culture itself. The knowledge and values that are shared by a given society cannot simply be placed aside in favour of a minority. After all, to practice one’s culture is also a right.

Sexual Minorities, Human Rights and Public Health Strategies in Africa also comments on the tendency of sodomy law proponents to view same-sex practices as a danger or threat to family values, unpatriotic and disloyal to their nationality.26 However the author challenges Africans to consider alternative structures of families rather than hold steadfastly to the ones we have grown used to as a society, and fear their imminent destruction.

The list of literature specific to the Malawian homosexuality laws includes African Law journal articles such as The Treatment of Homosexuality in the Malawian Justice System: R v Steven Monjeza Soko and Tiwonge Chimbalanga Kachepa by Louise Price and LGBT Rights in Malawi: One Step Back, Two Steps Forward? The Case of R v Steven Monjeza Soko and

24 (Epprecht, 2012) 25 (Fellmeth, 2008) 26 (Epprecht, 2012)

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Tiwonge Chimbalanga Kachepa by Demone, Bradley. While Price critiques the treatment of Soko and Kachepa and the handling of their case in respects of rights of privacy, to be subject to fair trials; Bradley explores the strides taken by Malawian LGBT+ activists (if any) and the discriminatory nature of homosexuality laws. Both authors note the cultural, religious and traditional influences that appear to hinder the LGBT+ movement in Malawi.

However, the Human Rights Education Associates (HREA) notes that homosexuals are likely to suffer many human rights violations as a result of their sexual orientation, particularly in countries which criminalise homosexual activity like Malawi. This extensive and inexhaustive list of rights includes firstly; the right to equality and to non-discrimination based on sexual orientation and the right to be free from violence and harassment. These rights can be intentionally deprived of homosexuals through the omission of the words “sexual orientation” in anti-discrimination laws, and constitutional provisions as is seen in the case of the Malawi Constitution under Section 20. Rights of equality and non-discrimination are found in multiple human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR) under Articles 2, 16 and 26. On the other hand the right to be free from violence and harassment may be found in treaties such as the ILO Convention on Violence and Harassment.27

Deprivation of the rights mentioned above has a secondary effect, which is to further impact rights of sexual minorities to things like education because of an unsafe climate created by peers or educators in schools. This was also noted to occur in Malawi in the cases of multiple homosexual students in The Homosexuality Debate in Malawi.28The right to education is recognised as a human right under Article 26 of the Universal Declaration of Human Rights (UDHR) and Articles 13 and 14 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).29 It is also recognised under Section 25 of the Malawi Constitution.

As with education, discrimination against homosexuals can in turn affect the rights of homosexuals to practice of religion (Section 33 of the Constitution and Article 18 of the UDHR) due to fear and stigma attached to their sexuality in many religious institutions which typically advocate against them. As an economic right, the right to work is also affected for the same reasons, and many sexual minorities can also have their employment arbitrarily

27 2019 (Convention No. 190) 28 (Mawerenga, 2018, pp. 141-143) 29 10 December 1948, 217 A (III); 16 December 1966, United Nations Treaty Series, vol. 993, p. 3

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terminated because of their sexual orientation.30 This in turn can affect the social security, assistance and benefits such persons are entitled to, their standards of living and physical and mental health.

As well as this, the right to fair trial (Article 10 of the UDHR, 14 and 16 of the ICCPR and Section 42 of the Malawi Constitution, amongst others) can be affected by the prejudices and personal opinions of judges and other officials when prosecuting or investigating the cases; which is particularly true in countries like Malawi with high levels of intolerance for homosexuality.

The right to be free from torture or cruel, inhuman or degrading treatment (contained in Section 19(3) of the Malawi Constitution, Article 5 of the UDHR, Article 7 of the ICCPR and Article 1(1) of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT)) is infringed upon by police practices during detention and investigations where homosexual laws are thought to have been infringed.31 This was noted in the Chimbalanga-Soko case, wherein the parties were subjected to medical examination against their will to determine if the two had committed “unnatural acts”. 32 Critics of the case also mentioned the arbitrary nature of the arrest of Chimbalanga and Soko, acts which tend to occur where individuals are only suspected of having carried out homosexual acts without having been caught in the midst of performing the acts themselves or substantial evidence showing the same. The right to not be subject to such is found under Article 9 of the UDHR.

Arresting homosexuals also counts as a denial of the right to privacy because sexual acts typically take place in private. The Right to privacy is enshrined under Article 12 of the UDHR, and the case of Toonen v Australia recognised sexual activity between two men to occur in private.33It is also seen in the Malawian Constitution under Section 21.

Lastly, one of the rights affected by sodomy laws is the right to marriage and family. One of the cornerstones of society, Section 22(3) of the Constitution states that “all men and women have the right to marry and found a family”. However, due to the homosexuality laws this right

30 Article 23 of the UDHR 31 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85 32 R v Soko and Another ((359 of 2009)) [2010] MWHC 2 (19 May 2010) 33 Toonen v Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994

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does not apply to same-sex unions.34The UHDR also provides for this right under Articles 12 and 16.

2.3. A HISTORY OF HOMOSEXUALITY

Though it may be the most notorious case involving homosexual conduct in Malawi, R v Steven Monjeza Soko and Tiwonge Chimbalanga, was not the first recorded case in the country post-independence.35 There is an extensive list of cases involving homosexuality in Malawi, but the distinction (as noted in Politicizing Sex in Contemporary Africa: Homophobia in Malawi) was that in terms of media coverage, news stories and court cases focused on sodomy arrests when they were coupled with other sex crimes or situational same-sex contact such as that occurring in prisons. This was particularly true in the 1994-2005 time period, with little to no evidence of “indigenous same-sex sexualities” in Malawi reported. Curry holds that the effect was to paint homosexuals in a negative light, mark such incidents as anomalies and to reinforce the supremacy of heteronormative sexual arrangements in the country.36

For example, in January of 2003 an issue of the Weekend Nation newspaper included a story involving an act of sodomy titled “Man Rapes Fellow Man”.37 Five years prior, the Daily Times Newspaper included an article detailing the arrest of an Asian man for performing oral sex on another man.38 Despite the passage of time, and the landmark Chimbalanga-Soko case, a majority of the more recent cases involving same-sex activity in Malawi seem to still follow the trends highlighted in Politicizing Sex in Contemporary Africa. In February of 2009, for instance, Robi Pingfan, a 53-year-old Chinese national was arrested over forced oral sex with an 18-year-old house boy.39 Likewise, in 2017, Chikondi Banda, who was 18 years old at the time, was sentenced to five years in prison for sodomising two boys aged between 12 and 14 years old. 40 This story was itself similar to the 2017 jailing of 32-year-old Jackson Alfred for

34 This right is also observed under Articles 12 and 16 of the UDHR, amongst others. 35 R v Steven Monjeza Soko and Tiwonge Chimbalanga Kachepa (359 of 2009) [2010] MWHC 2 (20 May 2010) 36 (Currier, 2018, pp. 46-49) 37 (Makossah, 2003) 38 (Mtumodzi, 1998) 39 (Nyasa Times Reporter, 2019) accessed at https://www.nyasatimes.com/police-arrest-chinese-man-over- forced-oral-sex-with-malawi-teen-boy/ on 14/05/2020 40 (Maravi Post Correspondent, 2017) accessed at https://www.maravipost.com/malawian-man-sentenced- five-years-prison-sodomy/ on 14/05/2020

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the sodomisation of a 9-year old boy, and the 2020 fining of a 34-year old Mangochi Man for sodomising a 14-year-old boy.41

On the other hand, there are a few incidents of indigenous same-sex sexual acts that were noted in The Homosexuality Debate in Malawi.42 For instance, that of Cuthbert Kulemela and Kelvin Gonani. In 2015, Kulemela confessed to community policing members that he and Gonani had had consensual intercourse after leaving a drinking joint together. The two were then arrested for their acts. Gonani was later arrested in 2016 for having sex in a public car park with Davie Loka. The two were charged with offences relating to idle and disorderly persons in a public place contrary to Section 180 to 184 of the Penal Code of Malawi.

Additionally, between the years of 2010-2011, Amon Champyuni, Matthew Belo and Mussa Chiwisi were each convicted for homosexual acts, receiving a 14-year sentence, 12-year sentence and 6-year sentence in prison respectively.

Interestingly, there was a case of a homosexual prostitute observed in 2016. The man, Limbani Kukhase was chased by an angry mob after being hired by a drunken man who had mistaken Kukhase to be a woman (Kukhase had put on make-up and women’s clothing). As the two were about to have intercourse, the drunken man discovered Kukhase was male, and called other members of the community, who began to inflict mob justice on Kukhase. Although Kukhase was arrested by police, he was released the next day without being charged. The police argued the arrest had been made in order to secure the safety of Kukhase from the mob.43

The above-mentioned incidents are but a few examples of homosexual activity in the country. There is clearly evidence that homosexual acts may not be as anomalous as current arguments may have us believe. Despite this, there is still the argument made that homosexuality is “un- African” and against our moral values as a country. Therefore, while it is clear there are negative attitudes towards homosexuals, the question is raised as to why this is the case.

2.4. CULTURAL AND RELIGIOUS FACTORS

In a 2005 report titled Cultural Practices and their Impact on the Enjoyment of Human Rights, Particularly the Rights of Women and Children in Malawi the Malawian Human Rights

41 (Phimbi, 2017) accessed at https://www.nyasatimes.com/man-32-sentenced-6-years-jail-sodomy/ on 14/05/2020; (Ndalama, 2020) accessed at https://malawi24.com/2020/01/15/man-fined-for-sodomising-14- year-old-boy/ on 14/05/2020 42 (Mawerenga, 2018) 43 (Mawerenga, 2018, p. 123)

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Commission described how homosexuality rates were on the rise in the Nkhata Bay district of the country.44 This growth was according to locals, owed to the external influence of tourists in the region, who would hire local tour guides and either have sex with them or request the tour guides to provide a steady supply of local boys and girls to have sex with.

This was also echoed by Endson Kalolo, a traditional authority of Mapuyu village in Lilongwe. He was of the opinion that homosexuality was not indigenous to Malawi and its customs. Kalolo argued that homosexuality was “A strange issue observed by whites… It happens in other countries because it’s part of their customs. If We compare western and African lifestyle, it’s very different. These customs aren’t welcome in Africa.” What was put forth was that homosexuality was not observed in rural communities in Malawi, but was perhaps seen in urban communities such as Lilongwe city and Blantyre, possibly due to the heavier western influence in those areas.45

The attribution of the existence or practice of homosexuality to outside sources is not a novel concept. In Africa at large, the routine seems to be to deny homosexuality as an indigenous occurrence culturally speaking. Largely disputing this argument is Cutting the Head of the Roaring Monster in Africa.46 In it Essein and Aderinto showcased evidence of homosexuality in Africa’s cultural history. Amongst others, this included the case of the Kabaka (king) of the Buganda, who executed thirty pages that had refused to have sex with him. While it was argued that some scholars believe such instances were taken out of context, the lack of research on African homosexuality must be acknowledged. It would be perilous to make general statements on the “unAfricaness” of homosexuality based on evidence from a handful of known examples. However, Msosa noted that Sir Harry Johnson, British consul and commissioner of Nyasaland documented a “real vice” that he observed among native boys circa 1897. Although not expressly detailed, some scholars were said to have taken the term as a euphemism for masturbation among boys. These vices were said to be tolerable among natives as long as they were viewed as negligible, but “unnatural acts” were particularly detested. 47

Also mentioned were numerous accounts of Nyasaland migrants in other countries including Zimbabwe, who were so notorious for their homosexual activities and tendencies that “It was thought all of them did it” – whether for muti (supernatural purposes) or for pleasure.48 Despite

44 (Malawi Human Rights Commission, (circa 2005)) 45 Interview with Endson Kalolo, dated 27/06/2020 46 (Essien & Aderinto, 2009) 47 (Msosa, 2017, pp. 88-91) 48 Ibid.

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such evidence, there were several scholars shown to maintain the notion of homosexuality as an imported sexual deviance.

On the same note, the book raised the point of acculturation – it is difficult to argue the foreign nature of homosexuality if a majority of African cultures are influenced by one another. Are there any truly indigenous customs or traditions?

In addition to this question, the irony of rejecting homosexuality because it is not aboriginal to Africa comes to light when also considered from a religious standpoint. In Human Rights and Homosexuality in Africa, Africa was said to have been called the most homophobic continent on earth.49 This was largely attributed to a combination of religious and cultural influences. Religion in Africa was pointed out to be comprised of traditional or indigenous beliefs, Christianity and Islam. The latter of the two are imports brought to Africa by colonisers, and are not native to the continent or its cultures in any way. It is worth expanding on the point that while homosexuality cannot be shown to have been imported by colonisers or to be a direct result of western influence, Malawi rejects it on the same premise, with arguments based on religious beliefs and laws which are very much alien to its cultures and traditions.

However, Mawerenga observed a different side of the argument, highlighting the effect of the African practice of Ubuntu morality – explained as the capacity to express companionship, reciprocity, dignity, harmony and humanity in the interest of building and maintaining community with justice and mutual caring. It is only by being members of this universal human community that we can fully know, experience and express ourselves as individuals. Practiced in many parts of Africa under different names, the concept of Ubuntu calls for people of different sexual orientations to be embraced by their communities, because they are human beings. However, the notion of Ubuntu can similarly be applied to oppose homosexuality in the sense that firstly, the expression of homosexuality leads to individualistic behaviour that place the needs of the individual above that of the community. Secondly, homosexuals do not procreate, and thus do not benefit the community by bearing children. Western cultures - who were seen not to ascribe to the Ubuntu mentality by Mawerenga – were thought to be more accepting of homosexuals because their lifestyles promoted individualism.50

Essien and Aderinto further drew parallels between historical colonisation in Africa and the current push by Western countries for more African nations to de-criminalise homosexuality;

49 (Dunton & Palmberg, 1996) 50 (Mawerenga, 2018, pp. 172-178)

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referring to it as “sexual colonisation”.51 The idea is that because the old imperialists have abolished their homosexuality laws, other countries, including their former colonies have to do the same.

There is room for opposing arguments to be made in this respect, particularly in light of the sovereignty of nations. However, Human Rights and Homosexuality in Africa draws focus to the difference in approaches between nations, citing Jide Macaulay, who states, “The international gay and lesbian movement is not a model for Africa. The way we approach things is very, very different. Our culture is different. One of the things we keep telling our European friends is bear with us, travel the slow pace with us. Recognize our issues.”

Macaulay’s approach to the matter speaks to the more conservative nature of African cultures, and in efforts to appease this, Epprecht suggests the use of euphemisms, self-censorship and increased discretionary tactics such as acronyms. For instance, in the place of terms such as “homosexuals” or “gays”, “MSM” could be employed, which refers to “men who have sex with men”. In this way there is a categorisation of an activity, and hopefully less of an associated stigma, because MSMs partake in sexual activities just for "fun" or "physical release", and may not identify themselves as gay or homosexual. The effectiveness of this approach has been criticised, but it was noted that that people were more willing to seek access to health services regarding same sex activities where terms such as “MSM” were employed instead of “homosexual”.

2.5. HOMOSEXUALITY AND PUBLIC HEALTH

Continuing in the line of health, Dunton and Palmberg’s Human Rights and Homosexuality in Africa raised the point of the possible dangers of homosexuality laws in the face of the African HIV and AIDS epidemic. This was also observed in Cutting the Head of the Roaring monster in Africa and further in Sexual Minorities, Human Rights and Public Health Strategies in Africa, where Epprecht attributed a rise in HIV and AIDS rates to “traditional closets”. Traditional closets referred to the trend of homosexuals who were forced to conceal their sexuality and were not educated on safe sex practices for same-sex activities. The potential for infection in such instances is high, and the same individuals then have intercourse with their spouses, thus spreading the virus. In this light, homosexuality laws are shown to be not just a

51 (Essien & Aderinto, 2009)

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concern for homosexuals and those fighting for their rights, but to be a concern for the general population as well.

2.6. HOMOSEXUALITY AND MORALITY

It was noted in Devlin Was Right: Law and the Enforcement of Morality, that literature on laws such as those which criminalise homosexuality merely ask the question of whether immorality is a crime. Doe and Dronenburg: Sodomy Statutes Are Constitutional raises some excellent points on the issue, asserting the point that public distaste is a legitimate state interest and general expression of public morality. 52 The “discriminatory” nature of such laws was questioned, because sodomy is an act that applies to men and women, whether in a heterosexual or homosexual context. Such laws were only discriminatory because they are more likely to be committed by those who are limited to sodomy being their only valid form of expression of intimacy. It was also concluded that the right to privacy does not apply to the act of sodomy.

Sexuality and Human Rights explained this viewpoint as being based on the premise that sex outside of the institution of marriage – whether between a same sex couple, sex transacted for money, between trans persons or even heterosexual sex outside of marriage in some jurisdictions – was (and often still is) deemed public. Because of its public nature, the state takes it upon itself to police certain behaviours. Indeed, in this context, one may look at the case of Hayles v The Republic, where the appellant was convicted of sodomy and indecent practices between male persons contrary to Sections 153 and 156 of the Penal Code. 53 Commenting on the 5 year sentence given, Banda, CJ, stated that such was necessary in order to reflect the “public revulsion and abhorrence of the kind of offences the appellant committed” and that such homosexual offences can lead to “moral corruption and depravity and cause severe emotional damage”. It is important to note that the appellant was a teacher and had showered homeless youth with gifts in exchange for sexual favours, thus the acts were taken to have been committed on at risk children rather than in the context of a consenting relationship between adults.

Concurring with the above arguments, Fellmeth and Mawerenga explained that laws that criminalise homosexuality are purely moral laws and may only be classed as “good laws” if they are approved by the majority of the people within the society that the laws apply to,

52 (Brooks, 1985) 53 Hayles v the Republic [2002–2003] MLR 68 (SCA)

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according to the natural law theory.54 However, like Chemerinsky, in Why Church and State Should Be Separate, he pushes for a secularisation. According to Chemerinsky, anti- homosexuality laws are a result of the alignment of a government with a particular religion, and such laws have the effect of excluding or ostracising certain members of society who may not belong to the religion in question, be accepted by it or hold the same values. As a people or society, we cannot ignore the other religions present, and so must strive to separate religion from government in order to create a system of laws from a more objective perspective.

2.7. EDUCATION

The issue of homosexuality has been established as one that goes beyond purely legal matters. Without changing public opinions, it is unlikely that Malawi will come to a point where the homosexuality laws are abolished. This said, the recommendations that can be made concerning a change of public opinions look beyond laws to include tools of social engineering.55

In Changing Attitudes toward Homosexuality in the United States from 1977 to 2012, Decoo expressed the opinion that society’s attitudes towards minority groups do not change in a linear way over time. Rather they developed due to exposure to equal rights, social movements and issues faced by minority groups which are key factors of the social movement theory. Such exposure included displaying the injustices faced by the minority groups and demonstrating how acts of injustice can be damaging to the image societies have of themselves, in order to highlight the changes that need to take place.56

Explaining the Growing Support for Gay and Lesbian Equality noted the drastic changes in opinions on homosexuality in the United states between 1973 and 2015, when the American Supreme Court ruled gay marriage as legal in the country. 70-78% of the country opposed homosexual acts in 1973, and by 2004 this figure had decreased to 57%.57 This was attributed to two factors, firstly the shift in societal mindset that occurs with the death of older generations in a society. As younger generations become the adult population, a society’s ideas and mindset evolves to reflect those of the current adult populace.

54 (Fellmeth, 2008) (Mawerenga, 2018, pp. 49-50) 55 (Kafoteka, 2016) 56 (Decoo, 2014) (Kafoteka, 2016) 57 (Keleher & Smith, 2008)

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The second factor that played a major role in a change of societal opinions on homosexuality was the increase in the levels of education in the United States.58 The conclusion drawn by scholars in this field are that the more educated an individual is, the more tolerant they are of minority rights, including those of homosexuals. Conversely, the less educated a person is, the more likely they are to oppose homosexuality. This may be because a lack of education may lead to heavy reliance on religious and cultural teachings which tend to oppose homosexuality, rather than individually formed opinions resulting from research into the matter.59

It is worth noting that the statements made by Decoo and Keleher and Smith were made with the United States in mind, and as noted above, developed countries and developing countries differ in terms of their legal, societal and ideological framework. However, this does not immediately disqualify the application of principles observed to change public opinions in the United States from application in Malawi in hopes of the same results.

Although education is constitutionally recognised as a right under Section 25(1), and again under Section 13(f) the Government (which states that the government is required to provide free and compulsory primary school education to the people of Malawi) figures on the reality of education in Malawi do not paint an optimistic picture. This is particularly true in reference to access to higher learning institutions and continuing education for the average Malawian. For example, as of 2019, less than 2 in 10 students were seen to complete their high school education in the country.60 In other words, at present, just 20% of the Malawian population complete their secondary education. In comparison, over 90% of students in America completed their high school education as of 2017, a figure that had risen from less than 50% in 1940.61

2.8. CONCLUSION

While by no means an exhaustive list of the literature on the subject of homosexuality laws, this Chapter had showcased an existing wealth of information on the topic of the homosexuality debate in relation to Malawi. This being said, there are points raised above that have room for further discussion and require further analysis in order to ascertain whether they may be applied

58 (Keleher & Smith, 2008, p. 5) 59 (Keleher & Smith, 2008) (Decoo, 2014) 60 (USAID, 2019) 61 (The United States Census Bureau, 2017) accessed at https://www.census.gov/newsroom/press- releases/2017/educational-attainment- 2017.html#:~:text=Over%20the%20years%20this%20has,high%20school%20diploma%20or%20higher on09/06/2020

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in the instance of Malawi’s homosexuality laws, and these will be further discussed in the proceeding chapters.

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CHAPTER THREE: RESEARCH METHODOLOGY

3.1. INTRODUCTION

As aforementioned, the purpose of this research project is to test the hypothesis that majority of the Malawian people do not support homosexuality or its decriminalisation, and that such an argument is supported by legal theory. This chapter will focus on the design methodology used to conduct the survey itself and challenges that were faced.

3.2. METHODOLOGY

In order to answer my research question, the chosen research method used was a combination of different approaches, namely surveys, secondary data analysis and a literature review. In the previous chapter, which was the literature review, it was shown that the current belief held is that a majority of the Malawian people do not condone homosexuality, and this may be one of the main reasons the homosexuality laws in Malawi have remained in place to date.

The literature review was used to establish a hypothesis and the secondary data from a previous survey that focused on Malawian attitudes towards homosexuality was used to enable a comparison to be made between results from previous studies and the results of the new study.62 Such data helped in capturing the prevailing attitudes on the matter at the time it was conducted

62 See This one graph shows the biggest threat to LGBT rights in Malawi; https://afrobarometer.org/blogs/one-graph-shows-biggest-threat-lgbt-rights-malawi as accessed on 04 February 2020

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in 2014, and was helpful as a starting point for formulating a more comprehensive survey on the topic. The pre-existing secondary data further allows for a comparison to be made on any changes in attitudes on homosexuality in the country, if any.

The third methodology used is data analysis. In order to test the theory that one major reason the homosexuality laws have remained in place is because a majority of Malawians don’t condone homosexuality, the study employed the use of a survey to gather quantitative data. This form of data was chosen because it would allow for the quantification of people’s attitudes and opinions on homosexuality, and for the results to be generalised to a larger sample population. Although surveys can lack detail, they can be more expedient than gathering data through interviews for instance, which would have been particularly time consuming to conduct with numerous people.

3.3. ETHICAL CONSIDERATIONS

Due to the sensitivity of the subject matter and its controversial nature in Malawi, it was crucial to maintain ethical standards when conducting the survey. Participants were assured of the confidentiality and anonymity of their identities in a short informational paragraph included at the beginning of the questionnaire. This meant that no identifying information was taken, and participants additionally had the option to withdraw their response from the survey at any point without penalisation and to decline participation altogether as well.

The surveys were conducted over a five-day period between 4 May 2020 and 8 May 2020 and were submitted online. The online submission method also allowed for discretion and anonymity in the responses given.

3.4. DATA METHODS

The data methods selected for the research project were both qualitative and quantitative data, which were collected through the use of a questionnaire.

The term “quantitative data” is used to refer to numerical data or data that have been quantified. 63 It may be gathered through quantitative data collection methods such as questionnaires or surveys which employ the use of close-ended questions with multiple choice answers, or interval/ratio questions.64 Quantitative data analysis procedures can either generate

63 (Saunders, et al., 2007, p. 145; 608) 64 (Jovancic, 2019) as accessed at https://www.leadquizzes.com/blog/data-collection-methods/ on 04/06/2020

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or use numerical data, for instance, graphs or statistics. Quantitative data is particularly used to quantify behaviours, attitudes, attributes and other defined variables. Placing the data in context of the research being carried out allows for the research hypothesis to be proven or disproven, which was instrumental in testing the assumption that Malawi’s homosexuality laws continue to be in place due to the public being in favour of them.65

On the other hand, qualitative data is non-numerical data or data that has not been quantified. As well as words it can include pictures, and videos. Collection techniques for qualitative data include interviews, focus groups, observation, case studied and open-ended questions in questionnaires; while the data may be analysed through techniques such as categorising the data. 66 It is particularly useful in understanding thoughts and behaviours of participants, bringing new ideas to light, highlighting unexplored concepts or overlooked issues, testing their value and accuracy and formulating predictions. It is also of use in exploring the meaning behind quantitative data that has been gathered.67

It was noted that both types of data have their strengths and weaknesses. Firstly, one of the strengths of quantitative data is that it allows for results to be generalised to a wider population. This is because quantitative data is usually sourced from broader studies involving a greater number of people. This form of data is also more objective than qualitative data; the use of figures and numerical data makes it difficult to distort quantitative data with emotions or personal bias that the researchers may have. Thirdly, it tends to have more validity and reliability than qualitative data due to the few variables involved and proscribed procedures used to gather the data itself. The proscribed procedures further allow for the replication of the studies and thus comparisons between results over time.68

The disadvantages of qualitative data are that firstly, there is a danger of structural bias and false representation due to the development of standard questions by researchers. The effect is therefore to reflect opinions of the researcher rather than the participants answering the questionnaire. Secondly, the close-ended questions used may not allow for accurate reflections

65 (Bhat, 2020) as accessed at https://www.questionpro.com/blog/quantitative-data-collection-methods/ on 04/06/2020 66 Ibid. 67 (Jovancic, 2019) 68 (Centre for Research in Library and Information Management, n.d.) as accessed at http://archive.learnhigher.ac.uk/analysethis/main/quantitative1.html on 04/06/2020

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of how participants actually feel about a mater. There is further the fact that data collected is superficial in nature and does not allow for much insight to be gathered on the topics at hand.69

On the other hand, the downsides of gathering qualitative data include the fact that firstly, it is because it is more time consuming to collect and analyse, there are usually fewer people studied than might be done in quantitative data collection methods. Secondly, the skills of the researcher to gather the data may come into play and affect the results, particularly when conducting interviews, focus groups and observation. Thirdly, this type of data does not lend itself as easily to generalisation as quantitative data does. This is a result of the fewer number of participants that tend to be studied, but also to some extent due to the fact that the responses recorded tend to be more subjective to the participants involved. It is thus additionally more difficult to make systematic comparisons.70

However, there are advantages to qualitative data. Firstly, rather than simply provide the narrow results of quantitative data through facts and figures, more depth and detail may be appreciated through the recording of participants attitudes, feelings and behaviour. These feelings and attitudes may then be more thoroughly understood. Participants are able to bring to light topic areas that have not been considered by the researcher. More pertinently to this research project when used in conjunction with quantitative data it can explain why a particular response was given.

In data collection, either one data collection method and corresponding data analysis method may be used (mono method) or the more than one data collection and analysis method may be used (multiple-method). The mono-method combines single research techniques with single analysis procedures. For example, the technique chosen may be a questionnaire, and quantitative data techniques such as graphs will thereby be used to analyse the data.

Conversely, multiple methods may be divided into two categories. The first of these categories is the multi-methods. Multi methods involve combinations of more than one data collection technique is used with its associated analysis technique.71 Therefore it will either be a multi- methods quantitative study or a multi-method qualitative study. For instance, questionnaires and structured observation may be used to collect quantitative data (the use of more than one

69 Ibid. 70 (Centre for Research in Library and Information Management, n.d.) as accessed at http://archive.learnhigher.ac.uk/analysethis/main/qualitative1.html on 04/06/2020 71 (Saunders, et al., 2007, pp. 145-146)

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data collection technique) and the data gathered will be analysed through quantitative data analysis techniques such as charts and graphs.

The second category of multiple methods studies is known as mixed methods. Mixed methods involve the use of qualitative and quantitative data collection techniques and analysis procedures are used. Mixed methods can further be classed as either mixed method research (when both data collection techniques and analysis procedures are used at either the same time or sequentially; without combining the two types of data) or may be mixed model research (combining data collection and analysis procedures as well as combining qualitative and quantitative approaches at other stages of the research. It tends to result in the conversion of data types from one form, to the other, such as converting qualitative data into numeric figures for statistical analysis).

Given the above, it was determined that the research design that best suited this research project was that of a mixed-model research design. The chosen data collection technique was a questionnaire; however, the questionnaire involved both open and close-ended questions, thus collecting qualitative and quantitative data. Secondly, this model allowed the qualitative data collected to be categorised (a qualitative data analysis) and subsequently converted into figures.

3.5. SAMPLING

Initially, the sampling technique chosen for the collection of the data was simple random sampling, in order to allow for the possibility of a wide variety of participants (rather than many who ascribe to the same religion or political grouping or ideology for example) and thus attempt to eliminate the possibility of skewed results. However, due to the outbreak of the Covid19 pandemic, this was changed to convenience sampling. Participants were chosen based on availability and willingness to take part in the questionnaire, which was shared through multiple social media sites. Although results obtained through convenience sampling can be useful, the results are prone to volunteer bias. Volunteer bias refers to the effect observed in possible differences between people who volunteer to take part in a study and those who choose not to. Additionally, there is a danger that the sample may not be representative of other characteristics, such as age or sex.72

Appendix I is the questionnaire, which took approximately 15 minutes to complete.

72 (PHAST, 2020) accessed from https://www.healthknowledge.org.uk/public-health-textbook/research- methods/1a-epidemiology/methods-of-sampling-population on 13/06/2020

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3.6. QUESTIONNAIRE

As aforementioned, there was pre-existing secondary data on attitudes on homosexuality in Malawi. This data was used to make a comparison between the attitudes in 2014 and attitudes currently, in order to ascertain if there were any changes in the attitudes towards homosexuality in the country. To this end, a few of the questions were adapted from the Afrobarometer survey, particularly those assessing tolerance towards homosexuals. 73 However, a majority of questions included in the survey were developed for the purposes of this research project alone, including those concerning the legal aspect of the homosexuality laws, opinions and knowledge on MSMs and HIV/AIDs related questions.

Out of about 70 people approached, 50 elected to take part in completing a structured questionnaire with 14 close-ended questions, and 3 open-ended questions, with all questions being mandatory. The close-ended questions were of a category nature, which meant that participants could only select one response from a given list of categories. This allowed for expediency in filling out the questionnaire. 74

On the other hand, there were three open-ended questions included in order to allow for participants to answer questions in their own manner without any unintentional prompting or suggestions that the researcher would have given through a list of given options for instance. Additionally, the participants were able to include responses that may not have occurred to the researcher. 75

The combination of both quantitative and qualitative data obtained allowed for the creation of a more in-depth picture of the views of participants on the subject matter of the survey itself.

3.7. CHALLENGES

A number of challenges were faced during data collection.

The questionnaire was intended to be distributed in person, so as to allow for a more varied class of participants. However due to the 2020 Covid19 epidemic, the health of the researcher and participants had to be taken into account. Thus, the questionnaire was distributed online through Google forms.

73 See footnote 1 74 (Saunders, et al., 2007, pp. 368-370) 75 Ibid.

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Despite one problem, distributing the survey online created another issue, which was that a few participants found it difficult to access the survey. The survey was therefore filled out only by people who had access a computer or smartphone and internet services.

Furthermore, 4 respondents had to be disqualified for incomplete or incomprehensible answers to the questions, as well as one submission being disqualified for being a duplicate submission. The consequence of these disqualifications is that rather than there being 54 valid submissions there are 50.

3.8. CONCLUSIONS

This chapter focused on the design methods used to conduct the research project survey. Using convenience sampling, a questionnaire consisting of 17 questions was distributed online. The questionnaire included both open-ended and close-ended questions so as to obtain both qualitative and quantitative data, thus giving more in-depth view of participants opinions on homosexuality in Malawi.

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CHAPTER FOUR: DATA ANALYSIS

3.1. INTRODUCTION

As aforementioned, the purpose of this research project is to test the hypothesis that the laws remain in place due to a majority of the Malawian people not supporting homosexuality or its de-criminalisation, and that such an argument is supported by legal theory. This chapter will focus on presenting and analysing the findings of the questionnaire.

3.2. SECONDARY DATA ANALYSIS: THE AFROBAROMETER SURVEY

In 2014, Afrobarometer conducted a survey in 33 African countries including Malawi to test levels of tolerance in countries by asking them whether they would mind having homosexual neighbours. This question focused on a variety of demographics including varying age groups, levels of education, religious groups, sexes and levels of exposure to media. The results of the survey will be included in order to allow for comparisons between the results of the survey conducted in 2020 for the purposes of this research project.

Just 21% of participants indicated that they would “not care” or “would like” to have a homosexual as a neighbour. Further to the point, the survey found that people were more likely to be tolerant if they were male, Christian, and “younger” – between the ages of 18 and 35.

89% of Malawians who participated in the survey stated that they would strongly dislike to have a homosexual neighbour. The second largest group of Malawians was the 4% who indicated they would “somewhat dislike” to have a homosexual neighbour. It can be said

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therefore that the majority of Malawians in the study did not view homosexual neighbours as desirable, with only 1% indicating that they would not care, 2% indicating that they would somewhat like it, 3% that they would strongly like it and 1% stating that they did not know. These findings are also consistent with a 2011 study done by CEDEP and CHRR, which found that 70% of Malawians felt uncomfortable with having “LGBTI people” as colleagues.

Though only positing the question of whether a homosexual neighbour or workmate would be desirable, the above figures are a good indicator of the lack of tolerance that Malawians showed in 2014 towards homosexuality in general. However, an earlier survey conducted by Afrobarometer may shed more light on the subject. In the period from June 2012 to July of the same year, 2400 Malawians were asked whether people “practicing same sex marriage or relationships have the right to do so”. Of the participants, 95% indicated that they did not think people in same sex relationships have such a right.

3.3. PRIMARY DATA FINDINGS: HOMOSEXUALITY IN MALAWI

As aforementioned, a majority of Malawians view homosexuality, or same sex-relationships in a negative light, and this could possibly be one of the reasons that Malawi’s homosexuality laws are still in place. Though varied responses were given, overall, the results of the survey seem to be in line with the point of the hypothesis stating that Malawians do not support homosexuality or its decriminalisation. However, it is arguable whether such a position is supported by existing legal theories.

3.3.1. DEMOGRAPHICS

Due to the random sampling, the demographics of respondents varied in terms of, age groups, education levels and religious beliefs. The gender of the participants was almost evenly split between males and females, with 26 of the 50 participants being female and 24 being male.

In terms of religion, 42 of the 50 participants (representing 84%) were of Christian faith. The next largest religious group were those who indicated that they ascribed to “Other” belief systems, which was 4 participants (8 %). There were additionally 2 Muslim participants, which made up 4% of the respondents, and 1 Atheist and 1 Hindu participant (2% for each category). There were no participants who identified themselves as ascribing to traditional religious beliefs.

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With respects to education, a majority of participants had attained a bachelor’s or master’s degree level of Education. 38% of participants held a bachelor’s degree, and 28% indicated that they held a master’s degree. Participants who were high school graduates, or held diplomas or the equivalent accounted for 16% of the total respondents, while 12% had some college credits but were yet to attain a degree. 4% of respondents held professional degrees and 2% had some secondary education. There were no participants who had doctorate degrees, participants who had only completed primary school, had some primary education without completing it, or had no schooling at all. There were additionally no participants who had trade, technical or vocational training.

Lastly, in terms of age, 16 of the participants were 18-24 years old, 12 participants were aged between 35-44 years old and 11 participants were aged 25-34 years old. There were further 6 participants aged between 45-54 years old and 5 participants aged between 55-64 years old. There were no participants aged below 18, and no participants who identified themselves as being over 65 years old.

3.3.2. KNOWLEDGE AND OPINIONS OF HOMOSEXUALITY

The participants were asked if they knew what homosexuality was, without a definition being given to them, in order to establish the subject matter. And their opinions on whether it was acceptable or unacceptable in their opinions. 100% of the participants indicated that they knew what homosexuality was.

However, the respondent’s opinions on whether they believed homosexuality was acceptable or unacceptable were more varied:

Figure 1

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As Figure 1 shows, 56% of the participants indicated that they strongly disagreed with the concept of homosexuality, and 4% that they somewhat disagree with it. In total that means 60% of respondents disapprove of homosexuality to varying degrees. 26% of the participants indicated that they did not have an opinion on homosexuality, or were neutral. Meanwhile just 6% strongly agreed with homosexuality and 8% somewhat agreed with it.

Of the 60% who indicated they disagreed with homosexuality; all the individuals practised a religion of some form. 27 were Christian, 1 was Muslim, 1 was Hindu and 1 indicated they held “other” beliefs, indicative of a correlation between religious practice and acceptance of homosexuality. However, it must be noted that a majority of the 14% who agreed with homosexuality to some extent were Christian. 5 of the 7 people who were accepting of the practice were Christian while 1 person was an atheist and 1 held “other” beliefs. The 13% of participants who held “neutral” beliefs consisted of 10 Christians, 2 participants of an “other” faith and 1 Muslim participant. (See Figure A of Appendix II).

In respects of gender, female participants were shown to be slightly more tolerant of homosexuality than male participants. The number of female participants that disagreed with homosexuality was 14, compared to the 16 males that disagreed with homosexuality. Additionally, 8 females indicated they held neutral views on the matter, while 5 males indicated they held neutral views concerning homosexuality. Out of the 7 participants that “agreed” with homosexuality to some extent, 4 were female while 3 were male. (See Figure B of Appendix II).

The levels of tolerance for homosexuality also differed in respects of age, as shown in (Figure C Appendix II); with the younger demographic showing more tolerance towards homosexuality than their older counterparts. All of the 7 participants who indicated they “agreed” with homosexuality were below the age of 35. Levels of neutrality on homosexual matters were shown to decrease as the ages of participants increased as well. For instance, 6 participants indicated they held neutral views in the 18-24 Years age group, while only 1 participant was shown to be neutral in the 55-64 Years, 45-54 Years and 35-44 years age group as well. The 35-44 years age group was shown to be the least tolerant towards homosexuality, with 11 of the 12 participants in this age range indicating that they disagreed with homosexuality to some extent.

Lastly, the levels of tolerance were compared across the participants levels of education, with the participants being divided into those who had attained a degree (this included bachelor’s,

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master’s or professional degrees) and those who had not attained a degree (some college credit, no degree, high school graduate, diploma or the equivalent, or some secondary education). What was shown was that people who held degrees were less tolerant towards homosexuality. 66% of degree holders stated that they disagreed with homosexuality compare to the 54% of participants without degrees who stated the same. Additionally, 23% of people without degrees agreed with homosexuality, whereas 11% of people with degrees who stated the same. The proportion of neutral participants in each category was more or less the same, with 23% neutrality for people with no degrees and 23% neutrality in people with degrees, as is shown in Figure D of Appendix II.

3.3.3. CONCLUSIONS ON LEVELS OF TOLERANCE

Going back to the conclusions drawn by the Afrobarometer survey, the assumption that Malawians do not condone such acts may be correct. Although the Afrobarometer figures were a little higher, a majority of participants – 60% - indicated they disagreed with homosexuality. However, the 26% of participants does show a considerable shift in attitudes towards homosexuality. That being said, it is possible that the figures would change if the sample size was larger.

On tolerance, Afrobarometer found participants who were males, Christians and/or aged between 18-35 more tolerant. However, the results of the research study show that conversely, participants who were female and participants who did not have degrees (i.e. were “less” educated) were more tolerant than their counterparts. Participants who were younger were indeed more accepting of homosexuality.

Conclusions cannot be made about tolerance levels across the different religious groups however, due to the fact that there were not enough participants belonging to religions other than the Christian faith. It would thus be difficult to make comparative statements given such a large number of Christians and a small number of alternative religions.

3.3.4. EXPLAINING THE VIEWS ON HOMOSEXUALITY

The participants were then asked to explain the reasons for their views on homosexuality. This was the first of the open-ended questions. This question was intentionally structured as an open- ended question in order to assess how many participants would respond in a manner that echoes the main reasons given against homosexuality explained in Chapter 2, such as cultural or religious beliefs.

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Upon analysis of the explanations given by the participants for their support, opposition or neutral beliefs concerning homosexuality, the responses were sorted as shown in Table 3.

Table 1 Disagreed Mentions in explanation/attributions Agreed with Neutral with of stance to: homosexuality homosexuality

Religion/spirituality 2 17

Homosexuality as an “unnatural” 1 7 occurrence

Homosexuality as a “natural” 1 occurrence

Freedom of choice/will 3 4 1

Morality 2 2

Lack of personal concern with/personally unaffected by 2 1 homosexuality The terms are simply learned social 1 2 norms

Abnormal Psychology in homosexuals 1 2

Human rights 1

Personal values 2 1

Culture 1

Harm principle 1

Unwilling to make personal 2 judgement on homosexuality

Of the 50 responses given for the above question, 3 were labelled as “uncategorised” because they did not fall into any of the above categories, which were comprised of recurring terms

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amongst participants and/or reasons which were recognised in the literature review chapter as existing arguments for or against homosexuality. The uncategorised explanations were the responses of participant 16, 21 and 39. Participant 16 explained his opposition of Homosexuality as due to the fact that “Homosexuality is evil” without stating whether they were referring to it being “evil” morally, according to their religion, culture or personal values for instance. Participant 21 simply stated that they opposed homosexuality because “It’s not how we’re supposed to be”, without indicating whether they meant this in terms of natural, religious or cultural behaviours. Participant 39, stated that they opposed homosexuality because “It’s too much”, and this answer was too vague to fall into any of the above categories.

It is worth noting that some responses did include multiple phrases or themes. These responses were counted in every category they qualified for. For example, Participant 13 explained their opposition to homosexuality as being because “It's against religious principles and moral standards in our society”. This response mentioned both religion and morality and therefore was included in both categories rather than only being restricted to one or the other.

Table 1 shows that the most commonly occurring variable was that of religion. 17 participants who opposed homosexuality mentioned their religion in their explanations for their beliefs on homosexuality. 7 participants opposing homosexuality also linked it to “unnatural” sexual occurrences, while 2 participants (in total) stated that homosexuality involved individuals with abnormal psychology. 1 individual attributed their position on the matter to personal values, and 1 individual stated that it was due to the freedom of choice.

On the other end of the spectrum, 3 responses for people who agreed with homosexuality stated that it was because people of such orientation were had the freedom of choices to be homosexual or the free will to do so. 2 responses mentioned a lack of personal concern or being personally unaffected by homosexuals as the reason for their stance on the matter. Human rights were mentioned just once, as was the notion that homosexuality is just a learned social norm.

Individuals who selected that they had no opinion or were neutral were more equally dispersed over the categories, with 4 stating that they were neutral on the matter because homosexuals had the freedom of choice or will to identify with this orientation. 2 participants linked their stance to morality, as did 2 participants mention their personal

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values and 2 participants attribute their religion or spirituality to their neutral standpoint. There were 2 participants who indicated that homosexuality was simply a learned social norm, and 2 participants who were neutral because they were unwilling to make a personal judgement on homosexuality. Interestingly, 1 participant listed that despite their being neutral on the matter, they did not think homosexuality was natural. 1 participant in the category held the opposite belief and stated that homosexuality was indeed “natural”. The notions of culture, the harm principle and a lack of personal concern were each mentioned once.

3.3.5. LEGAL RESTRICTIONS ON HOMOSEXUALITY

Comparing opinions on homosexuality with opinions on whether laws should regulate homosexuality 30 24 25

15 10 10 7 4 5 2 1 2 NumberParticipants of 0 0 0 Agree Disagree Neutral Views on Homosexuality

Laws should regulate homosexuality Laws should not regulate homosexuaity No Opinon on regulation Figure 2 Participants were asked whether they thought the law should restrict homosexual behaviours. A larger proportion of participants believed laws should regulate homosexual behaviour. 50% (25 participants) believed that the law should restrict homosexual behaviours, while 8% of the participants (4 people) held no opinion and 42% of the participants (21 individuals) believed that the law should not restrict homosexual behaviours.

The opinions on homosexuality were then compared with the opinions on whether laws should regulate homosexuality, as shown in Figure 2. 7 people who indicated that they agreed with homosexuality to some extent, all 7 believed that laws should not regulate homosexuality. Meanwhile, of the 30 participants who indicated that they disagreed with homosexuality, 24 also believed that laws should regulate homosexual behaviour. However, 4 participants disagreed with homosexual behaviour but did not think the law should regulate homosexual

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behaviours. 2 participants disagreed with homosexuality but had no opinions on whether the law should restrict such behaviours. On the other hand, of the 12 people that indicated that they held neutral views on homosexuality in general,10 people believed the laws should not regulate homosexual behaviours, 2 people held no opinions and 1 person indicated that laws should be regulated by homosexual behaviours. In short, it may be said that people who disagreed with homosexuality in general accounted for the bulk of the people who thought laws should regulate homosexual behaviour.

3.3.6. SANCTIONS FOR HOMOSEXUALITY

If a person commits a homosexual act in Malawi, they may be given a prison sentence that ranges from 5 to 14 years, with the added possibility of corporal punishment. Participants were asked if they believed these sanctions were reasonable the results are displayed as percentage values in Figure 12. Though varied, the most common response was to disagree with current sanctions for homosexuality. 20 out of the 50 participants strongly disagreed with the current sanctions for homosexual acts, whereas 18 participants said they somewhat disagreed with the current sanctions. Altogether this amounted to a 56% majority who disagreed on some level with the current sanction for homosexual acts. On the other end of the spectrum, 14 participants indicated that they strongly agreed with current sanctions whilst 4 indicated they somewhat agreed with current sanctions and the remaining 4 participants indicated they had no opinions or were neutral on the matter.

Given their responses on the matter, participants were asked what they thought should happen to Malawi’s homosexuality laws. This question gave participants the opportunity to choose between a number of given responses or to write a response in their own terms, if they did not feel their views were sufficiently expressed by any of the suggested responses.

Answers to this question were more evenly dispersed over the categories compared to answers to previous questions. However, it is interesting to note that the most common answer given was that the laws should immediately be abolished (26% of responses) and the second most common answer was the inverse – that the laws should remain in force as they are (20% of responses). 9 Participants indicated that they believed the laws should eventually be abolished, while 6 participants wanted the laws to remain in force but carry shorter sentences, and 6 participants wanted the laws in place but with longer sentences, The implication was that 44% of the respondents indicated the laws should be repealed either immediately or at some point

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in the future, and 44% of participants wanted the laws to remain in force (with varying opinions on the sentences).4% of the participants were neutral, whereas 8% of the participants held other opinions, which are recorded in Table 2:

Table 2 Participant Response: no#: Participant 7 Laws are to be obeyed as long as they do not impinge upon your rights as a human being Participant 21 I just think they should learn more about the word of God and fellowship with God more. Participant 37 I would say they need to be reviewed. Homosexual acts amongst consensual adults is one thing, non-consensual acts by an adult towards minors is another, Malawi should have laws against paedophilia especially towards adults with minors. We only talk about defilement, while paedophilia is swept under the rug. Participant 42 The government should just condemn the actions but not carry any prison sentences or fines.

Participant 7, who held a “neutral” opinion on homosexuality, and also indicated that they did not have an opinion on whether laws should restrict homosexual behaviour. It was not explained whether participant 7 believed the current homosexuality laws impinged on people’s rights, homosexual or otherwise.

Participant 21 strongly disagreed with homosexuality but did not think laws should restrict homosexual behaviour. Rather, she believed that the answer to homosexual activity lay in religious practices.

Participant 38 did not have an opinion on homosexuality in general but did believe that the law should restrict homosexual behaviour. She raised the point of that despite there being a difference between consensual acts between adults and acts occurring between an adult and a minor; with the need for laws protecting minors in the latter instance. There are such laws in existence, under Chapter XVA of the Penal Code which relates to Offences Against Morality Relating to Children (persons under the age of sixteen, according to Section

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160A). For instance, Section 160B criminalises the commission of sexual activity with a child, while 160C criminalises the commission of indecent acts with a child.

Participant 42 had no opinion on homosexuality in general, but did not believe the law should restrict homosexual activity. Rather she believed such acts should be “condemned” by the government but warrant no legal sanctions.

3.3.7. KNOWLEDGE AND OPINIONS ON MSMs

Participants were asked about their knowledge of the term “MSM”, in order to ascertain whether they saw any difference between MSMs and homosexuals.78% of participants (39 people) indicated that they had heard the term before. However, 11 participants (22%) had not.

In the third open ended question of the questionnaire, participants were required to explain why the term “MSM” was no different, somewhat different or very different to the term “homosexual” (depending on whether they personally viewed the two terms as different or similar). This question was structured as an open-ended question in order to ascertain whether participants, as lay-persons or representing the average Malawian believed the terms were similar or different, in the absence of any unintentional prompts that the researcher would have given.

Overall, it seemed that although a majority of participants had heard of MSMs, they believed it to be no different from homosexuality; which calls into question whether it is a term that may be used as a euphemism for homosexuality in a conservative country like Malawi, as suggested by some scholars. 27 (54%) of the responses stated were that there was no difference between the two terms. 16 (32%) reposes stated the terms were “somewhat different” and the remaining 7 participants believed there two terms were very different.

The participants opinions were also compared across levels of education in order to test the assumption that participants who were more educated generally are also more likely to have heard of the term “MSM”. The participants were divided into those who had attained a bachelor’s, professional or master’s degree (“Degree”) and those who had not attained this level of education (i.e. those with some high school, high school diplomas and some college credit but no degree; labelled “No Degrees”). What was shown was that levels education seemed to have only a marginal bearing on whether participants had heard of the term (Please see figure E of Appendix II). 77% of people with degrees had heard of the term MSM, and

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23% had not. This is compared with 80% of people without degrees who stated they had no degrees but had heard of the term MSM (a 3 % difference with their degree-holding counterparts) and the 20% of participants without degrees had not heard of the term (again, a 3% difference with their degree-holding counterparts).

Keeping with the theme of education, Figure F of Appendix II illustrates the number of people who had knowledge of the term MSM and believed it to be different from the term homosexual. What was shown was that out of the participants who knew of the term “MSM”, levels of education seemed to have little to no bearing on whether participants saw a difference between the terms “homosexual” and “MSM”. In both instances of participants who held degrees and participants who did not hold degrees, the percentage of participants who saw there was some difference between the terms was around 40%, while the remaining 60% in both classes saw no difference.

However, education did seem to have some bearing on whether participants who had not heard the term “MSM” before and whether they saw a difference between “MSM” and “Homosexual”. As Figure G Appendix II shows, out of the total participants who stated they had not heard the term MSM before, a larger percentage of participants (75%) who held degrees believed the two terms were different, compared to the 33% participants who did not have degrees and believed the terms were different.

Participants were then asked to explain why they believed the terms were no different, somewhat different or very different. The categorised responses are shown in Table 5.

Table 1

Participants who stated the terms “MSM” and

“homosexuality” are:

Mentions in explanation/attributions Somewhat Very Different No different of stance to: Different

Believing the two are the same/there 0 0 25 are no differences

MSM can also be bisexual 0 3 0

“Homosexual” being the general 6 6 1 term/also referring to lesbianism

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MSM being a subset/component of 0 0 2 homosexuality

Separation of the act of MSM from 0 5 0 sexual orientation

MSM only pertaining to men 5 2 1

Simply stating the two are “different” 0 1 0

Again, it must be noted that some responses did include multiple phrases or themes. These responses were counted in every category they qualified for. For example, Participant 16 explained that they believed the terms were somewhat different because “MSM is restricted to "men" while Homosexuality also includes women (Lesbians)”. They mentioned the fact that MSM only pertained to men and the term “homosexuality” also being used to refer to women, therefore their response was included in both of those categories, as opposed to Participant 32 who simply referred to lesbianism in her answer by stating that “Women also have sex with women”; thereby implicitly referring to the generality of the term homosexual.

Table 5 shows that the most commonly occurring variable by far was simply stating that the two terms are “the same” or that participants saw “no difference” between the two terms for participants who believed the terms were no different with little to no further explanation given. Arguably, this could show a lack of actual knowledge and understanding on what MSMs are.

Reference to lesbianism or the generality of the term “homosexual” was observed 6 times in participants who believed that MSM was different from homosexual, and 6 times in participants who believed the terms were somewhat similar. In addition to this, of the participants who saw “somewhat” of a difference between the terms, 5 participants highlighted a distinction between the act of MSM from a person’s sexual orientation. 2 participants in the same category mentioned that “MSM” only pertains to men, while 5 participants who believed “MSM” was very different from “homosexual” indicated that MSM only involved men.

Of the participants that viewed the two terms as being “somewhat different”, 3 mentioned that “MSM” could also refer to bisexual individuals. 1 participant in this category simply stated that the two terms are “different” without really explaining why.

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Of the participants who held that the terms were “no different”, 1 participant referred to the generality of the term “homosexual”, 1 stated that “MSM” referred only to men and 2 stated that “MSM” was no different from the term homosexual because it was a subset or component of homosexuality.

3.3.8. HOMOSEXUALITY AND HIV/AIDS

In Chapter two it was shown that one previously overlooked aspect of the homosexuality debate in Malawi is the impact that homosexuality laws may have on the spread of HIV/AIDS in the country. The stigma created by the laws may create room for secretive behaviours where unsafe sexual practices are rife. Results suggest that overall, the majority of participants believe homosexuals and heterosexuals have contributed equally to the spread of HIV/AIDS, are both equally as likely to carry and contract the virus and that there should be sexual education provided to homosexuals. The responses are detailed further below.

Participants were asked if they thought there was any relation between the spread of HIV and AIDS and homosexuality in Malawi. 26 participants (52%) held the opinion that homosexuals and heterosexuals equally contributed to the spread of homosexuality in Malawi. 11 participants (22%) stated that they did not know. However, 6 participants believed that homosexuals had contributed the most to the spread of HIV/AIDS in Malawi, 5 believed that homosexuals have contributed the least and 2 participants stated that homosexuals have not contributed in any way.

The participants were then asked whether they believed homosexuals were just as likely, less likely or more likely to carry or contract HIV/AIDS in Malawi compared to heterosexuals. In the responses recorded, 74% of participants (37 people) indicated that the two are equally as likely to carry or contract HIV/AIDS. 10 Participants stated that homosexuals are more likely to carry HIV/AIDS and 3 participants stated that homosexuals are less likely to carry or contract the virus.

Of course, the private nature of homosexuality and aforementioned stigma attached makes it hard to test the accuracy of any of the above statements concerning the contribution that homosexuality has made to the spread of HIV/AIDS in Malawi and transmission of the disease between homosexuals and heterosexuals. However, the very fact that some respondents indicated they believed homosexuals had not contributed at all, were less likely to carry the HIV/AIDS virus or that they had contributed the least to its spread in the country may show

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the need for sexual education to include homosexuals practices in the country if Malawi hopes to curb the spread of HIV/AIDS altogether.

On this point 62% of responses (31 participants) indicated that there should be information provided to homosexuals concerning safe sex practices. 6 participants believed that homosexuals should not be educated on safe sex practices, and 6 participants stated that they did not know whether Malawi should cater to homosexuals in respects of sexual education. Lastly, 7 participants stated that they did not know whether homosexuals should be educated on safe sex practices.

The opinions on homosexuality and public sex education were then cross-refenced (Figure H Appendix II). Out of the 7 participants who agreed with homosexuality to some extent, 6 believed there should be public sex education provided for homosexuals. Meanwhile, half of the participants who did not agree with homosexuality (30 participants in total) still believed that there should be public sex education provided to homosexuals. Further, 10 participants who expressed neutral views on homosexuality believed there should be public sex education provided.

On the other hand, all 6 of the participants who did not believe public sex education should be provided to homosexuals were all participants who did not agree with homosexuality. 6 of the remaining participants who did not agree with homosexuality expressed that “maybe” such education should be provided, while 3 stated that they “did not know”. 1 person who supported homosexuality stated they did not know whether public sex education should be provided for homosexuals.

Of the people who had neutral opinions 2 indicated that they did not know whether homosexuals should be provided with public sex education and 1 stated that “maybe” this should be done.

3.4. PRIMARY DATA ANALYSIS

The results of the study seem to indicate that a majority of Malawians do not support homosexuality – 60% of participants indicated that they disagree with homosexuality to some extent. Although it is an improvement on previous figures established by Afrobarometer, it still represents a majority of participants in the sample size.

91.1% of the Malawian population is either Christian or Muslim; with 97.9% of the total population ascribing to religious beliefs of one type or another (including but not limited to

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Hinduism, the Baha’i faith, Rastafarians, indigenous African beliefs and Judaism).76 Based on these figures, reasoning would dictate that religion would indeed play a major role in the debate on legalising homosexuality. This was reflected by the results of the study – out of the 60% of participants who indicated that they disagreed with homosexuality, religion was the most commonly occurring reason given for their stance on the matter.

Constitutionally speaking, Malawi has a solid foundation for religion and religious tolerance. According to Section 33 of the Constitution, every person has the freedom of conscience, which includes the liberty to practice any religion or hold certain religious beliefs. Used in conjunction with Section 32, which provides for the right to form and join associations; we see that the persons holding common religious beliefs may form associations like PAC and assert their opinions as well. Additionally, such beliefs may not be used as grounds for discrimination; as explicitly stated by Section 20 of the Constitution.

Such provisions seem to be well implemented in the Malawian justice system; a 2007 report by the U.S Department of state noted that government policy and practice contributed to the generally free practice of religion in the country77. For instance, in Chakuamba v Ching’oma, the respondent brought an application against the applicant to compel him to stop boycotting sessions of Parliament.78 It was held that Section 33 of the Constitution, a provision that guaranteed the right of freedom of conscience, was a basic human right, therefore the applicant could not be compelled to cease his boycotts. Additionally, another example may be found in the case where Senior Resident Magistrate Viva Nyimba ordered the Malawi Human Rights Commission to investigate Salma Sattar (Muslim) for discrimination against Thando Mhango, a Christian based on his religion, amongst other things.79

This constitutional provision protecting religious rights stems from international treaties such as the UDHR, which not only prohibits discrimination of persons based on their religion under Article 2, but enshrines the right of every person to “freedom of thought, conscience and religion”, which includes the right to “…change his religion or belief, either alone or in community with others and in public or private [and to] manifest his religion or belief in

76 (CIA World Factbook, 2019) accessed at https://www.cia.gov/library/publications/the-world- factbook/fields/401.html on 08/06/2020 77 (United States Department of State, 2007) accessed at https://www.refworld.org/docid/46ee6762c.html on 08/06/2020 78 Chakuamba v Ching’oma [1996] MLR 425 (HC) 79 See Malawi Court Orders Arrest of Pakistani Mom for Racism, Baby Abduction News24: http://m.news24.com/news24/Africa/News/malawi-court-orders-arrest-of-pakistan-mom-for-racism-baby- abduction-20160610 accessed 08/06/2020

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teaching, practice, worship and observance” in Article 18. These rights to non-discrimination are mirrored in both Article 2 of the International Covenant on Civil and Political Rights (ICCPR) and Article 2 of the International covenant on Social and Economic Rights (ICSER). Article 18 of the ICCPR further provides for the right to practice religion.

Rights to hold personal values and opinions or the freedom of choice to believe homosexuality is wrong are also noted under the same provision, as was argued by two participants. However, culture must be considered, although according to the study (where it was alluded to by one participant, and implicitly so) it does not play as large a role as religion in the Malawian homosexuality debate. However, the right to practice culture is guaranteed by Section 26 of the Malawi Constitution, and Article 27 of the UDHR.

In either case, the right to express such religious or cultural views can be recognised further as a right to freedom of expression, which is a basic human right. For instance, it is found under Section 35 of the Malawi constitution and Article 19 of the UDHR. To implement laws that mirror these views can in a sense be seen as democracy in its purest form, for it is the will of the people to disallow certain behaviours in their societies. Democracy, or the right to participate in political activity may be found under Section 40 of the Constitution and as well as the right to form or join political parties and campaign, includes the right “to participate in peaceful political activity intended to influence the composition and policies of the Government.”

Black’s law dictionary states that human rights may be defined as the freedoms, immunities, and benefits that, all human beings should be able to claim as a matter of right in the society in which they live.80 The principle of human rights was one that developed from the natural law theory.

According to the natural law theory, law is said to be that that which is based on what we naturally discern to be right and wrong. 81 The theory states that in every person, there is a moral barometer (or conscience) that allows the truth to be discovered by reason. Some natural law philosophers believe that it is inherent and therefore present from birth, but most, as St. Thomas Aquinas stated, believe that this “barometer” stems from a “transcendental source of goodness” or is God-given.

80 (Garner & Black, 2009) 81 (Schubert, 2010)

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During the Greco-Roman period, the primary concern to scholars of this discipline was the duties of man. However, from the 13th to 17th century, religions that departed from Catholicism faced heavy opposition, and relevant leaders failed to uphold the natural laws. This led to the shift of the natural laws to include the natural rights of men; because people felt that there were certain things that should be provided to them by their states which they were entitled to as men. English philosopher and physician, John Locke, who was a main logician for the natural rights theory argued that although some rights could be relinquished, every man ultimately retained the right to rights to life, liberty and estates (or property).82 These three rights served as the foundations of what we know today as human rights.

There is solid legal standing to support the practice of religious and cultural beliefs in the country which do not agree with homosexuality. However, natural law theorists do not ask what the law states, but rather what the law should state in order to guarantee the rights and freedoms of every man. As St. Augustine once stated, “lex injusta non est lex”, (a law that is not just is not a law). 83 Following this line of reasoning, the question becomes whether Malawi’s homosexuality laws are just, and thus valid laws.

It has been shown that international communities would argue that they are not, due to the deprivation of rights to family, non-discrimination, and to expressions of sexual orientation amongst others, as was discussed in Chapter 2. On the other hand, they may be argued to be just by Malawians, who are simply expressing their religious and cultural beliefs through the exercise of democracy. However, in this case there does seem to be an enjoyment of human rights at the expense of others, despite the fact that they are to be applied to all, equally.

The nature of human rights is that they are interdependent and inalienable; therefore, to deprive and individual of one right is to deprive them in a way of all their rights. It follows therefore that the homosexuality laws are unjust and therefore not valid. The unequal application of human rights laws that is seen in the instance of homosexuality in Malawi may be likened to that as was seen in South Africa during apartheid. One practical example may be seen in the Apartheid era of South Africa which lasted from 1948-1994, when segregationist laws were set in place as tools of domination over non-whites, and civil rights campaigners contended that this should not have been the case. Following the naturalist school of thought, the statutes

82 (Locke & Laslett, 1988) 83 (Simpson, 1994)

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that gave the government the power to make such laws were invalid, because they were not just.

It is strange to think that a country full of people with different political, religious and other beliefs can exercise tolerance in this respect and live in reasonable peace, but the same cannot be done in respect of differing sexual orientations. Instead, the choice seems to be to discriminate and limit the rights of this group of persons, including their right to life, privacy and family.

Arguably, the problem could be said to be the manner in which such liberties are enjoyed. Perhaps a fear of de-criminalising sodomy stems from the ill-conceived notion that such an action offends religious or personal beliefs and the right to express these beliefs. The concept of repealing Section 153 should instead be seen as recognition of the rights of people of an alternative sexuality, whose rights would be enjoyed privately, and not in a way that interferes with the beliefs of others or threatens societal institutions such as the family as was discussed in Chapter 2.

Although involving a developed country, the American society could be of importance in illustrating this point. Within their societies, the morality aspect of LGBT issues is separated from the civil rights of LGBT people. What this means is that despite a large number of Americans believing that homosexuality to be wrong, limiting the rights of such people “represents the idea that government can legislate morality”. The reason why Americans support non-discriminatory laws and civil-rights for sexual minorities is that emphasis is placed on creating awareness of gays and lesbians, creating greater visibility of such persons and combining civil rights with identity. All this is done while continuing to avoid the connection with morality and homosexuality, for morality, being what we naturally discern to be right and wrong, is subjective.84

Indeed, morality was a point raised by participants of the research study in relation to homosexuality; with two of those mentions being a justification for disagreeing with homosexuality and the other two being justification for remaining neutral on the matter. Further to the point, viewing homosexuality as an unnatural occurrence, due to abnormal psychology (in other words, “naturally wrong”) was mentioned a total of 7 times by participants who disagreed with homosexuality, and once by a participant who expressed neutral views on the

84 (Decoo, 2014)

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matter. On the other hand, there was one participant who mentioned that homosexuality was natural, or "naturally right”. These results are indicative of the dangers of legislating morality, because the concept differs from person to person. Thus, the question is raised as to why these laws are adhered to.

The answer to this question may lie in the operation of what is known as the black letter law principle, which holds that because the law is widely known and undisputed, it is therefore obligatory on human conduct.85 Unlike naturalists, positivists spare little room to sit and interpret the validity of the law according to extraneous variables and instead consider laws as they appear.86

Jeremy Bentham once dismissed the Natural Law theory as “nonsense on stilts” and instead conceived the idea that law is a command by a sovereign of a state that carries a threat of punishment.87 Both naturalists and positivists therefore believed that laws stemmed from a sovereign source, but while transcendental source of goodness the naturalists had conceived was debateable to some, the positivist sovereign was a physical authority such as a king. The result is that under this school of thought laws are more of an artificial product than the natural product seen argued by naturalists, because laws are things which have been made, enacted or laid down in a prescribed fashion to result in a system of order with rules or commands that are backed by the threat of a sanction or punishment.88

Positivists like John Austin believe there shouldn’t be a direct link between law, morals and ethics (which are not laws themselves) but offer the suggestion that judges should refer to broader social policies when interpreting laws.89 Austin further posited that the laws must exist in two situations; firstly, it must work for the community and secondly, it must be obeyed with sanctions imposed for those who disobey.

Section 1 of the Constitution states that Malawi is a “sovereign state” with rights and obligations under the law of nations. These rights include the rights to make its own laws, including those that criminalise homosexuality and to additionally impose sanctions for those laws. The homosexuality laws further work for the community because they express the views of the majority of people who either disagree with homosexuality or believe that laws should

85 (Duhaime, 2019) accessed at http://www.duhaime.org/LegalDictionary/B/BlackLetterLaw.aspx on 08/06/2020 86 (Curzon, 2001, p. 140) 87 Ibid. 88 (Patterson, n.d.) 89 (Curzon, 2001, p. 142)

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restrict homosexual behaviours. Secondly, as was shown in the many examples in Chapter 2, there are sanctions given to those who do not obey the laws.

Moreover, if it can be shown that a majority of the society that wishes to impose laws upon itself agrees on the standards of morality to be imposed (i.e. what is “good” according to their collective beliefs as a society and what is “bad” according to their collective beliefs as a society) the subjectivity of morality may not be of importance. Senior Prophet Dr. Rex Kalolo (M.D) argues that Malawi is a God-fearing nation, and therefore whatever contradicted the Bible would be considered a taboo in the country.90 Kalolo further stated, “As far as the Church is concerned, homosexuality is forbidden, it is a sin. Much as we respect human rights, the Bible is our standard of life. We don’t recognise [homosexuality] as a human rights issue because it is taboo.”91

Another church authority, Rev Dr Osborne Joda Mbewe suggested instead that the matter of decriminalisation of homosexuality laws in Malawi be put up for a national referendum. He expressed in 2014 that “A single judge sitting in a court cannot and must not determine an issue like homosexuality, which touches on the constitutionality of a matter affecting all Malawians”.92

While it may seem a simplistic way to view a complex matter, this approach does carry some weight. It is true that the homosexuality laws in Malawi do impinge on rights of homosexuals, and there is the matter of HIV/AIDS to take into consideration, but the reality is that decriminalisation in the near future would face serious contention in the country. The state could decriminalise homosexuality in the interests of taking measures to introduce reforms aimed at eradicating social injustices and inequalities and justify such policy measures as respecting the right to development in accordance with this responsibility.93 However, there would be a high chance of protests and demonstrations against such an act; as is the Constitutional right of every citizen.94

90 Senior Prophet Dr. Rex Kalolo, speaking as executive secretary of Prophetic Ministries Association of Malawi (PROMAM), Overseer of Altar of Liberty Church of all Nations (ALCOAN) and an executive member of the Faith Leaders Platform in Malawi. 91 Interview with Senior Prophet Dr. Rex Kalolo dated 27/06/2020 92 (Mawerenga, 2018, pp. 81-82) 93 As per Section 30(3) and (4) of the Constitution 94 See Section 38 of the Constitution. Additionally, Malawi is no stranger to protests in the way of democracy- for instance, the Infamous July 20 Demonstrations of 2011 against Corruption, fuel shortages and inflation. See 2011 Malawian Protests retrieved from https://en.m.wikipedia.org/wiki/2011_Malawian_protests Accessed 08/06/2020; the 2019 and 2020 protests: https://africanarguments.org/2020/01/30/year-mass- malawi-protests-election-ruling/ accessed 08/06/2020

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3.5. CONCLUSIONS

In this chapter, the researcher has presented the findings of the survey that was conducted on 50 participants concerning their opinions on homosexuality, its relationship with HIV/AIDS and whether the laws should restrict such behaviours. There has additionally been a thorough analysis of the data obtained, including comparisons across categories.

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CHAPTER FIVE: CONCLUSIONS AND RECOMMENDATIONS 4.1. INTRODUCTION

The purpose of this research project was to test the hypothesis that the laws that criminalise homosexuality in Malawi remain in place due to a majority of the Malawian people being in support of such laws, and that this such an argument is supported by legal theory. Having gone through the arguments presented in favour and against such laws presented in the Chapter 2 of the project, and the results of the study presented in Chapter 4, this chapter will focus on the conclusions that can be made from the data gathered, supporting theories of law and the recommendations that may be made.

4.2. SUMMARY OF CHAPTERS

CHAPTER 1 of the project concerned the introduction of the research undertaking. The laws which criminalise sexual behaviours between persons of the same sex in Malawi under the Penal Code were identified as was the case of R v Soko and another, which prompted wider discussions in the country on homosexuality in relation to human rights. The chapter contained the statement of the problem, which stipulated the question that prompted the research project, main objectives to be met by the researcher in this undertaking and research questions to be answered.

CHAPTER 2 of the project further explored homosexuality in Malawi, including on a variety of works by prominent scholars, peers and newspaper articles. Six main areas were considered,

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namely homosexuality in relation to human rights, a history of homosexuality in Malawi outside of the R v Soko case, cultural and religious factors in the debate, how homosexuality relates to public health issues in respects of the fight against HIV and AIDS homosexuality in relation to morality and education – a tool which has been observed to influence tolerance on homosexuality.

CHAPTER 3 of the project concerned the research methodology and explained the use of a literature review, secondary data analysis and questionnaire method in the project as to for the purposes of establishing a hypothesis, testing the hypothesis and make comparison between previous studies results and the results of the new study respectively. Further, the sampling method used for the mixed-model research design was also given, as well as problems that were encountered during the research itself.

CHAPTER 4 of the project presented the secondary data and primary data findings and included a comprehensive analysis of the data obtained. While the assumption that a majority of Malawians do not agree with homosexuality was reflected in the 60% of participants who disagreed with homosexuality, and 50% of participants who stated that the law should police such behaviours, a large proportion of people were shown to believe laws criminalising homosexuality should be abolished either immediately or eventually. To this end, while it was seen to be true that rights to practice religion or to hold certain beliefs was supported by principles of the natural law theory, and the right to create and impose laws criminalising homosexuality is founded in the positivist theory, we must be cognisant of the unequal application of rights created by the laws. Therefore, it was suggested that the matter be subject to referendum, for which a change in the attitudes of the people of Malawi would be needed.

4.3. FINDINGS AND RECOMMENDATIONS 5.3.1 FINDINGS

While some groups in the country do support decriminalisation (namely the Malawi Law Society, CEDEP, CHRR, The University of Malawi’s Faculty of Law, the Malawi Network of Religious Leader Living With or Affected by HIV and UNAIDS) at present, the study shows that it is unlikely that Malawi would vote in favour of decriminalisation.95

95 Ibid

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 60% of respondents disagreed with homosexuality, all of whom practised a religion of some form. However, people with degrees were less tolerant (66% disagreed with homosexuality).  17 of the 30 participants (54%) who disagreed with homosexuality attributed their views on homosexuality to religion, 7 to homosexuality being “unnatural”.  Those who agreed with it referred to it being “freedom of choice/will of homosexuals” to be homosexual (3) and 2 participants expressed they were not personally affected by homosexuals.  4 participants who had neutral views mentioned “freedom of choice/freewill of homosexuals to be homosexual” as one of the reasons for their opinions.  50% (25 participants) believed that the law should restrict homosexual behaviours but 56% did not agree with the current sanctions for homosexuality laws. 44% stated they should be abolished (immediately or eventually) and 12% stated they should remain in force with longer sentences while 12% stated they should remain in force with shorter sentences.  78% of participants showed knowledge of the term MSM, but only 46% saw a difference between the term MSM and homosexual.  Out of the participants who knew of the term “MSM”, levels of education seemed to have little to no bearing on whether participants saw a difference between the terms “homosexual” and “MSM”. In both instances of participants who held degrees and participants who did not hold degrees, the percentage of participants who saw there was some difference between the terms was around 40%, while 60% of persons in both classes saw no difference.  76% of participants believed homosexuals were just as likely to carry or contract HIV/AIDS in Malawi, and 62% believed that public sex education should cater to homosexuals – which included half of the individuals who did not agree with homosexuality.

The results confirm the hypothesis that a majority of Malawians disagree with homosexuality and its decriminalisation. Religion was the most commonly occurring reason given for their stance on the matter, which is supported under Section 33 of the Constitution and Article 18 of the ICCPR. Expressing these beliefs is also a human right under Section 35 of the constitution and Article 19 of the UDHR. The concept of human rights, is one founded in the natural law theory. However, the laws are not just because they are enjoyed in a way that deprives

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homosexuals of their own rights. It is an unequal application of rights as was seen during apartheid in South Africa.

Further, morality is subjective – if not, the participants of the study would all have the same opinions of homosexuality. Perhaps if we separate morality from civil rights of LBGT people as is done in America, Malawians would come to a point where they would accept the laws be decriminalised.

From the positivist perspective, it has been said that law is a command by a sovereign of a state that carries a threat of punishment. Laws must further work for the community and must be obeyed with sanctions imposed for the those who disobey. Section 1 of the Constitution states that Malawi is a “sovereign state” with rights under the law of nations. Therefore, it can make its own laws, including those that criminalise homosexuality and impose sanctions for those laws. These laws further work for the community because they express the views of a majority of Malawians (people who either disagree with homosexuality or believe that laws should restrict homosexual behaviours). Additionally, if the standard of morality is agreed on by a majority, the subjectivity of morality is not an issue.

If we are recognizant of the inequal application of human rights occurring, but also of the fact that Malawi as a sovereign state has the right to make its own laws, it becomes clear that if the laws are to be repealed such that they would work for the society; there would also need to be a change in the opinions of the Malawian people in respects of homosexuality.

5.3.2. RECOMMENDATIONS

5.3.2.1. SUGGESTIONS FROM PUBLIC INSTITUTIONS

Commenting on the results of the study, Sarai Chisala-Tempelhoff, (Senior Legal Researcher & Founder of the Gender and Justice Unit) was of the opinion that on the topic of decriminalisation, it is immaterial whether Malawians accept homosexuality or other forms of sexuality. When contacted, she stressed the importance of the government not policing bodies by criminalizing consensual relations between adults, and attributed the heavy intolerance towards homosexuality in the country to “the result of the strength of the Church in determining public morals”. She stated, “I believe that everyone has the right to live their truth - that sexual orientation and gender identity should not be the subject of criminal legislation or any other

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sanction,” and offered strategic litigation as a means of bringing about law reform in the country instead.96

Alternatively, Horace Levus Chipuwa, current Member of Parliament for Lilongwe Mapuyu North suggested civic education as a means of changing opinions on homosexuality in Malawi. However, he stated that while parliament considered homosexuality a human rights issue, Malawi would possibly “never” decriminalise homosexuality because of the influence of churches. He stated,

“Issues of homosexuality are discussed extensively in parliament. In fact, a discussion on it was introduced to health committee of parliament by human rights group. consultations were made to constituents, churches and other interest groups but it met a lot of resistance. As a result, the idea of introducing a motion in the chamber on minority rights group was withdrawn.”

5.3.2.2. EDUCATION

In Chapter 2, one of the means of changing attitudes on homosexuality discussed was education. The research study found that individuals without degrees were more tolerant of homosexuality. However, it is possible this may be an anomalous result, as it did not follow the results seen by multiple scholars and studies in the same area, such as Afrobarometer, Keleher and Smith, and Decoo. Therefore, the recommendations that will be made will still focus on education as a tool of social engineering.

As noted in Chapter 2, education was seen to increase levels of tolerance in America’s population over time. However, in spite of the constitutional provisions protecting every Malawian’s rights to access education, less than 20% of Malawian children complete their education. Again, this is despite the fact that more children in the country are attending school than ever before. The United Agency for International Development (USAID) attributes these figures to the poor quality of education in the country.

For instance, as of 2015, the literacy rates in the country stood at 62.14%, a 3% decline from 2014. Further, the ratio of students to teachers in the same period (2015) was 69.5 students per teacher.97 In addition to a large workload, salaries have been noted to be of issue for Malawian

96 Interview with Sarai Chisala-Tempelhoff dated 29/06/2020 97 (KNOEMA, 2015) accessed at https://knoema.com/atlas/Malawi/Pupil-teacher-ratio-in-primary-education on 09/06/2020; (Macrotrends, 2020) accessed at

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teachers. For instance, early 2020 saw a suspension of classes after teachers held a nationwide strike to demand salaries for December 2019. Some teachers claimed the government owed them arrears dating back to 2010, and blamed government corruption for the lack of pay.98

This in mind, not only would it be advisable that introduce government incentives to bring more teachers into the education sector to improve the quality of learning, but there would need to be a transparent system set up to ensure the teachers are paid regularly for their work. In terms of corruption, Malawi does have an Anti-Corruption Bureau established in 1995 under the Corrupt Practices Act.99 However, as of 2019, the country was still ranked the 123 least corrupt nation out of 180 countries, as per the Corruption Perceptions Index reported by Transparency International. This figure was an all-time high for the country, which had averaged 92.7 out of 180 countries from 1998 until 2019.100 It is clear there is need for a deeper probing into the matter.

Education in Malawi is also frequently impeded by the various family and employment obligations imposed on minors in the country. This includes child and early marriage and child labour, both of which the government has taken strides to combat. For instance, Section 21 of the Employment Act prohibits the employment of persons under the age of 14, although this does not apply to work done in vocational technical schools or training institutions, and more pertinently, homes.101 While helping out around the house can be expected of many children, in rural areas, children assisting their parents in fieldwork and the like can have a negative effect on their education.

Section 22 of the Employment Act further states that no person between the ages of 14 and 18 shall work or be employed in any occupation that is likely to be harmful to their education or affect their school attendance. Sanctions for employers who contravene Sections 21 and 22 include a K20,000 fine and the threat of 5 years imprisonment. The provisions of the Employment Act mirror those of the Constitution, which provides for the protection of children from exploitation of children under Section 23. There was additionally the Child Care,

https://www.macrotrends.net/countries/MWI/malawi/literacy- rate#:~:text=Malawi%20literacy%20rate%20for%202015,a%203%25%20decline%20from%202014 On 09/06/2020 98 (Chauluka, et al., 2020) accessed at https://times.mw/teachers-strike-paralyses-classes/ on 09/06/2020 99 CAP 7:04 of the Laws of Malawi 100 (Trading Economics, 2019) accessed at https://tradingeconomics.com/malawi/corruption-rank on 09/06/2020 101 1999 (Act No. 6 of 2000)

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Protection and Justice Act, which was enacted in 2010 to make provisions for child care and protection and legislate child justice issues and safeguard the matters of social development of the child amongst other things.102

Practically speaking, there have been actions taken by the government to uphold these provisions, for instance, in the year 2000 the Labour Services Department, through the ILO Child Labour Country Programme for Malawi set up a program designed to rescue children living in places like Thyolo from paid work.103 However, the government would also do well to take on a more active approach in terms of the learning conditions of students in the country. Various charities and Non-Governmental Organisations like UNICEF Malawi, DAPP Malawi and Ripple Africa have had to take up the mantle in respects of projects such as building classrooms and school blocks, donating books and providing nutritious meals to students.104

The government would also do well to facilitate access to free tertiary and secondary education in the Constitution, as is the case for primary education.105 Currently, the government is only required to provide greater access to higher levels of education, although there have been issues in this area as well. For instance, in 2016 the government raised the tuition for public universities by 400%, a move that sparked an overwhelming amount of backlash. 106 This drastic increase was attributed to the state of the country’s economy.

On the other hand, in terms of impeding child marriage, reference may be made to Section 23 which states that all children (persons under the age of 18) have a right to be protected from economic exploitation or any treatment, work punishment that is, or is likely to be hazardous, interfere with their education, or be harmful to their health or to their physical, mental or spiritual or social development. This is in line with the Marriage, Divorce and Family Relations Act of 2015, which does not recognise unions involving persons under the age of 18 years as valid marriages as per Section 14.107

102 2010 (Act No.7 of 2010) 103 (International Labour Organization, 2000) accessed at https://www.ilo.org/ipec/Regionsandcountries/Africa/Malawi/WCMS_IPEC_CON_TXT_MWI_PRO_EN/lang-- en/index.htm on 10/06/2020 104 see (DAPP Malawi, 2016), as accessed at https://www.dapp-malawi.org/table/our-blog/let-children-stay-in- school-stories/ on 10/06/2020; (Ripple Africa, n.d.) as accessed at https://www.rippleafrica.org/what-we- do/education/ on 20/06/2020 105 See Section 13(f)(ii) and (iii) of the Constitution 106 (Chilunga & Kumwenda, 2016) accessed at http://www.nyasatimes.com/chanco-students-protests-fees- hike-malawi-police-fire-teargas-students-next-vigil-state-house/ accessed on 08/06/2020 107 (Act No. 4 of 2015)

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There is further the Penal Code, which penalises the taking away or detention of a women of any age with intent to marry or carnally know her under Section 135, which is observed as a form of child marriage in some rural areas. The Section is contained in Chapter XV of the Penal code, which includes offences against morality, and includes other provisions enshrined for the protection of young girls such criminalising the abduction of unmarried girls under the age of 16 in Section 138 and the carnal knowledge of girls under the age of 16 under Section 138. The two crimes carry sanctions of seven years imprisonment and life sentences respectively.

The above laws are actively enforced by the government of Malawi, although such activities are more difficultly enforced in rural communities. Prior to 2017, cases like that of R v Mangani, where the appellant was charged and convicted of the abduction of a 14-year-old girl (which was done with the intent to marry her under customary law) were fairly more common in rural areas of the country.108 At the time, children between the ages of 15 and 18 were able to marry with parental consent, while marrying children below this age range was simply “discouraged” but was not illegal.109 However, recent changes to legislation including the Sections of the Penal Code discussed above and a 2017 Constitutional amendment that changed the definition of children to mean persons under the age of 18 have effectively outlawed and discouraged the practice of child marriages in the country.

5.3.2.3. PUBLIC HEALTH

While educational reforms may cause gradual changes over time, the HIV/AIDS epidemic is very real and compels immediate action, even at the cost of respecting for the religious and personal beliefs of the country’s population. Homosexuality laws create room for secretive behaviour in MSM and homosexual activity, and the diseases and infections that are spread in such cases are not isolated to the homosexual community, but may be spread to the general public as well. For instance, through MSMs who also sleep with women.

In this respect, the use of euphemisms may be of some aid in keeping in line with the conservative attitudes in Malawi, although the results of the study show that 54% of individuals saw no difference in opinion between the terms. However, as with general opinions about homosexuality, this may change with time and with increasing levels of education.

108 Republic v Mangani (3 of 2007) [2007] MWHC 16 (22 March 2007) 109 Ibid.

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46% of participants did acknowledge some difference between the terms MSM and homosexuality, therefore the terms may be received with differing levels of stigma in the public eye, although more research must be done in this area. Although the study showed that education did not seem to affect knowledge of MSMs or factor in in terms of participants beliefs of whether the two terms had different meaning, it is possible that more extensive sexual education provided by organisations such as the Centre for the Development of People (CEDEP) would be beneficial in this area. Scholars note that comprehensive sexuality education programs have been shown to reduce rates of sexual activity, sexual risk behaviours (such as having multiple partners and having unprotected intercourse) and sexually transmitted infections.110 This would be particularly effective in a country like Malawi, in respects of raising awareness that MSM and homosexual activity affects not just those communities, but the population at large. After all, 62% of participants believed public sex education should cater to homosexuals, and this included a large proportion of participants who did not agree with homosexuality.

5.4. CONCLUSION

This chapter focused on drawing conclusions on whether the opinions reflected by the results of the research study were supported by the legal principles found in the natural law theory and that of legal positivism. It further showed that although the right to oppose homosexuality on religious or other grounds is a human rights issue, such rights are being enjoyed at the expense of people who identify as homosexuals. However, while de-criminalisation would be the most logical suggestion, especially in light of the HIV/AIDS crisis that the country faces, the reality is that such an act by the authorities could lead to overwhelming public outcry against homosexuals. The way forward should instead be to set a foundation that leads to a change in public opinions over time so that when Malawi does abolish its homosexuality laws, such a move will be met with a more tolerant population.

110 (Committee on Adolescent Health Care, 2016)

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BIBLIOGRAPHY

STATUTES

The Malawi Constitution

Marriage, Divorce and Family Relations Act, 2015 (Act No. 4 of 2015)

Corrupt Practices Act, Chapter 7:04 of the Laws of Malawi

Employment Act, 1999 (Act No. 6 of 2000)

Child Care, Protection and Justice Act, 2010 (Act No.7 of 2010)

The Penal Code, Chapter 7:01 of the Laws of Malawi

Sexual Offences Act 1967. Chapter. 60; ELIZABETH II

ILO Convention on Violence and Harassment, 2019 (Convention No. 190)

International Covenant on Civil and Political Rights (ICCPR), 16 December 1966, United Nations Treaty Series, vol. 999, p. 171

International Covenant on Economic, Social and Cultural Rights (ICESCR), 16 December 1966, United Nations Treaty Series, vol. 993, p. 3

Universal Declaration of Human Rights (UDHR) 10 December 1948, 217 A (III)

United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) 10 December 1984, United Nations Treaty Series, vol. 1465, p. 85

LIST OF AUTHORITIES

Chakuamba v Ching’oma [1996] MLR 425 (HC)

Hayles v the Republic [2002–2003] MLR 68 (SCA)

Republic v Mangani (3 of 2007) (3 of 2007) [2007] MWHC 16 (22 March 2007)

R v Steven Monjeza Soko and Tiwonge Chimbalanga Kachepa (359 of 2009) [2010] MWHC 2 (20 May 2010)

Toonen v Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994)

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BOOKS Curzon, L., 2001. Q&A Answering Series: Jurisprudence. 3rd ed. London: Cavendish Publishing Limited. Dunton, C. & Palmberg, M., 1996. Human Rights and Homosexuality in Southern Africa. 2nd ed. s.l.:Nordiska Afrikainstitutet Garner, B. A. & Black, H. C., 2009. Black's Law Dictionary. 9th ed. Chicago: West. Locke, J. & Laslett, P., 1988. Two Treatises of Government. 18th ed. Cambridge: Cambridge University Press. Mawerenga, J., 2018. The Homosexuality Debate in Malawi. 1st ed. Lilongwe: Mzuni Press Saunders, M., Lewis, P. & Thornhill, A., 2007. Research Methods for Business Students. 4th ed. Essex: Pearson Education Limited. Schubert, F. A., 2010. What is law?: Natural Law. In: Introduction to Law and The Legal System, (10th Edition). Boston, MA: Wadsworth Cengage Learning, p. 2. Simpson, R. A. J. M. Y., 1994. "Lex Inuista Non Est Lex". In: The Encyclopaedia of Language and Linguistics Volume 4. New York: Pergamon Press, p. 2058.

JOURNAL ARTICLES Brooks, A. E., 1985. Doe and Dronenburg: Sodomy Statutes Are Constitutional. William & Mary Law Review, pp. 645-682. Chanika, E., Lwanda, J. L. & Muula, A. S., 2013. Gender, Gays and Gain: The Sexualised Politics of Donor Aid in Malawi. Africa Spectrum, pp. 89-105. Chemerinsky, E., 2008. Why Church and State Should Be Seperate. William & Mary Law Review, pp. 2193-2215. Demone, B., 2016. LGBT Rights in Malawi: One Step Back, Two Steps Forward? The Case of R v Steven Monjeza Soko and Tiwonge Chimbalanga Kachepa. Journal of African Law, pp. 365- 387. Dworkin, G., 1999. Devlin Was Right: Law and the Enforcement of Morality. William & Mary Law Review, pp. 927-946. Epprecht, M., 2012. Sexual Minorities, Human Right and Public Health Strategies in Africa. African Affairs, 111(443), pp. 223-243. Essien, K. & Aderinto, S., 2009. Cutting the Head of the Roaring Monster in Africa. African Study Monographs, 30(3), pp. 121-135. Fellmeth, A. X., 2008. State Regulation of Sexuality in International. William & Mary Law Review, pp. 797-936. George, R. P., 1990. "Social cohesion and the legal enforcement of morals: a reconsideration of the Hart-Devlin debate". Am. J Juris 35, p. 15. Hicks, G. R. & Lee, T.-T., 2006. Public Attitudes toward Gays and Lesbians. Journal of Homosexuality, 51(2), pp. 57-77. Murphy, J. G., 1999. Moral Reasons and the Limitation of Liberty. William & Mary Law Review, pp. 947-957.

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Price, L., 2011. The treatment of homosexuality in the Malawian justice system: R v Steven Monjeza Soko and Tiwonge Chimbalanga Kachepa. African Human Rights Law Journal 10.2, pp. 524-533.

REPORTS Committee on Adolescent Health Care, 2016. Comprehensive Sexuality Education, Washington D.C: American College of Obstetricians and Gynecologists. Malawi Human Rights Commission, (circa 2005). Cultural Practices and their Impact on the Enjoyment of Human Rights, Particularly the Rights of Women and Children in Malawi, Lilongwe, Malawi: Malawi Human Rights Commission. Miller, A. M., 2009. Sexuality and Human Rights, Geneva: The International Council on Human Rights Policy.

DISSERTATIONS, THESES, PAPERS Decoo, E., 2014. Changing Attitudes Toward Homosexuality in the United States from 1977 to 2012, Utah: Brigham Young Unversity. Kafoteka, N., 2016. Why is Homosexuality Criminalised in Malawi, Blantyre: The Staff Development Institute. Keleher, A. G. & Smith, E. R., 2008. Explaining the Growing Support for Gay and Lesbian Equality Since 1990, California: s.n. Msosa, A., 2017. Human Rights and Same-Sex Intimacies in Malawi, Colchester: University Of Essex. United Nations Human Rights Committee, 2012. Consideration of reports submitted by States parties under article 40 of the Covenant: Concluding Observations of the Human Rights Committee (Malawi), s.l.: United Nations Human Rights Committee. United Nations Human Rights Committee, 2012. Consideration of reports submitted by States parties under article 40 of the Covenant: Initial Reports of the state partes: Malawi, s.l.: United Nations Human Rights Committee.

NEWSPAPER ARTICLES

Makossah, P., 2003. Man Rapes Fellow Man. Weekened Nation, 18-19 January. Mtumodzi, C., 1998. Asian Arrested for Oral Sex. Daily Times, 28 April.

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Afrobarometer, 2016. This One Graph Shows the Biggest Threat to LGBT Rights in Malawi. [Online] Available at: https://afrobarometer.org/blogs/one-graph-shows-biggest-threat-lgbt-rights-malawi [Accessed 04 February 2019].

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DAPP Malawi, 2016. Let Children Stay in School Stories. [Online] Available at: https://www.dapp-malawi.org/table/our-blog/let-children-stay-in-school-stories/ [Accessed 10 June 2020]. Duhaime, L., 2019. Black Letter Law Legal Definition. [Online] Available at: http://www.duhaime.org/LegalDictionary/B/BlackLetterLaw.aspx [Accessed 08 June 2020]. Dyer, G. 2018. Gay Rights and Trends in Global Culture. [Online] Available at: https://www.bangkokpost.com/opinion/opinion/1538306/gay-rights-and-trends-in- global-culture [Accessed 12 July 2020] Human Rights Education Associates (HREA), 2003. Study Guide: Sexual Orientation and Human Rights. [Online] Available at: http://hrlibrary.umn.edu/edumat/studyguides/sexualorientation.html [Accessed 10 June 2020]. International Labour Organization, 2000. Malawi: Projects. [Online] Available at: https://www.ilo.org/ipec/Regionsandcountries/Africa/Malawi/WCMS_IPEC_CON_TXT_MWI_P RO_EN/lang--en/index.htm [Accessed 10 June 2020]. Jovancic, N., 2019. 5 Data Collection Methods for Obtaining Quantitative and Qualitative Data. [Online] Available at: https://www.leadquizzes.com/blog/data-collection-methods/ [Accessed 2 June 2020]. KNOEMA, 2015. Malawi - Pupil-teacher ratio in primary education. [Online] Available at: https://knoema.com/atlas/Malawi/Pupil-teacher-ratio-in-primary-education [Accessed 09 June 2020]. Macrotrends, 2020. Malawi Literacy Rate 1987-2020. [Online] Available at: https://www.macrotrends.net/countries/MWI/malawi/literacy- rate#:~:text=Malawi%20literacy%20rate%20for%202015,a%203%25%20decline%20from%202 014. [Accessed 09 June 2020]. Maravi Post Correspondent, 2017. Malawian Man Sentenced to Five Years in Prison for Sodomy. [Online] Available at: https://www.maravipost.com/malawian-man-sentenced-five-years-prison-sodomy/ [Accessed 20 May 2020]. Masina, L., 2016. Malawi Court Annuls Government Suspension of Anti-Gay Laws. [Online] Available at: https://www.voanews.com/africa/malawi-court-annuls-government-suspension-anti- gay-laws [Accessed 11 January 2020]. Ndalama, O., 2020. Man Fined for Sodomising a 14-Year-Old Boy. [Online] Available at: https://malawi24.com/2020/01/15/man-fined-for-sodomising-14-year-old-boy/ [Accessed 14 May 2020].

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Nyasa Times Reporter, 2019. Police Arrest Chinese Man Over Forced Oral Sex With Malawi Teen Boy. [Online] Available at: https://www.nyasatimes.com/police-arrest-chinese-man-over-forced-oral-sex-with- malawi-teen-boy/ [Accessed 14 May 2020]. Nyasatimes.com, 2012. Malawi Not Ready to Legalise Homosexuality. [Online] Available at: http://wwwnyasatimes.com/malawi-not-ready-to-legalise-homosexuality-says- president-banda/ [Accessed 13 July 2016]. Patterson, n.d. Theories of Law. [Online] Available at: http://www.jus.unitn.it/users/patterson/course/topics/materiale/analyticjurissupplemental.pdf [Accessed 24 February 2019]. Phimbi, E., 2017. Man, 32, Sentenced to 6 Years for Sodomy. [Online] Available at: https://www.nyasatimes.com/man-32-sentenced-6-years-jail-sodomy/ [Accessed 14 May 2020]. Ripple Africa, n.d. Ripple Africa Education Projects. [Online] Available at: https://www.rippleafrica.org/what-we-do/education/ [Accessed 10 June 2020]. Smith, D. & Mpondera, G., 2012. Malawi President Vows to Legalise Homosexuality. [Online] Available at: https://www.theguardian.com/world/2012/may/18/malawi-president-vows-legalise- homosexuality [Accessed 20 March 2020]. Stewart, C., 2015. Malawi Police end Moratorium on Anti-gay Arrests. [Online] Available at: https://76crimes.com/2015/12/10/malawi-police-to-end-moratorium-on-anti-gay- arrests/ [Accessed 19 March 2020]. The United Nations General Assembly, 1966. International Covenant on Civil and Political Rights. In: Treaty Series 999. s.l.:United Nations General Assembly, p. 171. The United States Census Bureau, 2017. High School Completion Rate is Highest in U.S History. [Online] Available at: https://www.census.gov/newsroom/press-releases/2017/educational-attainment- 2017.html#:~:text=Over%20the%20years%20this%20has,high%20school%20diploma%20or%20 higher.” [Accessed 9 June 2020]. Trading Economics, 2019. Malawi Corruption Rank. [Online] Available at: https://tradingeconomics.com/malawi/corruption-rank [Accessed 09 June 2020]. United States Department of State, 2007. 2007 Report on International Religious Freedom - Malawi. [Online] Available at: https://www.refworld.org/docid/46ee6762c.html [Accessed 08 June 2020].

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APPENDIX I

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APPENDIX II

Figure A: Religious Tolerance Towards Homosexuality

30 27 25

15 10 10 5 5 2 NumberParticipants of 0 1 1 0 1 0 1 0 0 1 1 0 Christian Muslim Hindu Atheist Other Religious Denomination

Agree Disagree Neutral

Figure B: Comparision of Homosexual Tolerance in Two Genders

18 16 16 14 14 12 10 8 8 5 6 4 4 3

2 0 agree disagree neutral

male female

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Figure C

Tolerance of Homosexuality across Age Categories

55-64 Years 0 4 1 45-54 Years 0 5 1 35-44 Years 0 11 1 25-34 Years 2 5 4

18-24 Years 5 5 6 Age Age Participants of 0 5 10 15 20 Number of participants

Agree Disagree Neutral

Figure D:

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Figure E:

Figure F: Participants with Knowlegde of the Term "MSM"

100% 80% 17 6 60% 40% 20% 12 4 0% Degrees No Degree

NumberParticipants of Levels of Education

Difference No difference

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Figure G:

Participants with No Knowlegde of the Term "MSM"

100% 2 80% 2 60%

40% 6

20% 1

Number of Participants of Number 0% Degrees No Degree Levels of Education

Difference No difference

Figure H

Cross-referencing Opinions on Homosexuality and Opinions on Public Sex Education for Homosexuals(PSEH) 16 15 14 12 10 10 8 6 6 6 6 3 4 2 1 1 2 0 0 0

Number ogParticipants 0 Yes to PSEH No to PSEH Maybe to PSEH Don't know Opinions on PSEH

Agree with Homosexuality Disagree with Homosexuality Neutral Views on Homosexuality