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By Chikumbutso Mphande (005-176) a THESIS SUBMITTED to the SCHOOL of LAW FULFILMENT of the REQUIREMENT for the DEGREE OF

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By Chikumbutso Mphande (005-176) a THESIS SUBMITTED to the SCHOOL of LAW FULFILMENT of the REQUIREMENT for the DEGREE OF Student no: 005-176 CAVENDISH UNIVERSITY ZAMBIA ENFORCEMENT OF LGBT RIGHTS IN MALAWI By Chikumbutso Mphande (005-176) A THESIS SUBMITTED TO THE SCHOOL OF LAW FULFILMENT OF THE REQUIREMENT FOR THE DEGREE OF LAW 1 Student no: 005-176 DECLARATION Name: CHIKUMBUTSO MPHANDE____________________________ Student number: 005-176____________________________________________ Degree: Bachelor of Laws_____________________________________________ This Dissertation was produced by CHIKUMBUTSO MPHANDE in the fulfilment of the requirements for the Undergraduate Law Programme (LLB) from the Cavendish University of Zambia. I undertake that all the material presented for examination is my own work and has not been written for me, in whole or in part, by any other person. I also undertake that any quotation or paraphrase from the published or unpublished work of another person has been duly acknowledged in the work which I present for examination. SIGNED: ………………………………………. DATE: …………………………………….…… SUPERVISOR: Ms. KAFWILU CHINAMBU SIGNED……………………………………………. DATE …..................................................................... 2 Student no: 005-176 ABSTRACT The topic of LGBT rights has been unusually prominent, and has been the focus of great contention, during the last years of the Bingu Mutharika regime and the early months of the Banda administration. In 2009 the judiciary by convicting 2 men for violating Sections 153 and 156 of the Penal Code sent word to the country that the Malawian Judiciary under Malawi’s colonial-era sodomy laws, consensual same sex behaviour between men will not be tolerated and will be dealt with by the law. Human rights, is critical to the functioning of any democracy, as such, evidenced by its incorporation of the bill of rights in Chapter 4 of the 1994 Constitution of Malawi. This research examines the rights to equality, freedom of conscience, right to privacy and right to human dignity with regards to section’s 153 and 156 of the Penal Code and further investigate the determination in Republic v Steven Monjeza Soko and Tionge Chimblanga Kachepa, whether it may have been influenced by pressure from the then sitting president Mutharika and the religious community in Malawi considering the disregard to constitutional minority rights. 3 Student no: 005-176 ACKNOWLEDGEMENT I would like to take this opportunity to express my profound gratitude and deep regard to my parents Mr and Mrs Mphande, my sister Chimwemwe Garczynski and my supervisors, all their exemplary guidance, valuable feedback and constant encouragement throughout the duration of my study and of this thesis. Your valuable time and encouragement were an immense help throughout my thesis. 4 Student no: 005-176 DEDICATION This work is dedicated to my mom Mrs S. Mphande and Mr E. Mphande as a compliment for the wonderful things they did to me personally and the whole family. We really appreciate. We wouldn’t have been where we are today had it not been for your unprecedented sacrifices. 5 Student no: 005-176 Table of Contents ACKNOWLEDGEMENT...........................................................................................................................3 DEDICATION..........................................................................................................................................4 CHAPTER 1.............................................................................................................................................5 1.1 INTRODUCTION...........................................................................................................................5 1.2 Background......................................................................................................................................7 1.3 Statement of the Problem...............................................................................................................8 1.4 Scope of Study.............................................................................................................................8 1.5 Objectives of the Study................................................................................................................9 1.6 Research Questions...................................................................................................................10 1.7 Rationale of the Paper...............................................................................................................11 CHAPTER 2...........................................................................................................................................11 Literature Review............................................................................................................................11 2.1 introduction...............................................................................................................................11 2.2. Equality and None-Discrimination............................................................................................12 2.3 freedom of Conscience..................................................................................................................15 2.4 Right to Privacy..........................................................................................................................19 2.5 Freedom of human dignity........................................................................................................21 Chapter 3.............................................................................................................................................23 Research Design and Methodology.................................................................................................23 3.1 Introduction...............................................................................................................................23 3.2........................................................................................................................Sampling Procedure .........................................................................................................................................................24 3.3...............................................................................................................................Data Collection .........................................................................................................................................................24 3.4......................................................................................................................Ethical Consideration .........................................................................................................................................................24 6 Student no: 005-176 3.5..........................................................................................................................Research Methods .........................................................................................................................................................25 3.5.1Design......................................................................................................................................25 3.5.2 Analysis...................................................................................................................................25 3.6..................................................................................................................................CONCLUSION .........................................................................................................................................................25 Chapter 4.............................................................................................................................................26 Research Findings............................................................................................................................26 4.1 ARE MINORITY RIGHTS CONSTITUTIONAL RIGHTS IN THE MALAWI CONSTITUTION AS PER CHAPTER 4 OF THE CONSTITUTION.................................................................................................26 4.1.2 Introduction................................................................................................................................26 4.1.3 What are Constitutional Rights..............................................................................................27 4.1.4 Are Minority Rights Constitutional Rights in Malawi..............................................................28 4.1.5 Conclusion..............................................................................................................................30 4.2– CONSTITUTIONALITY OF SECTION’S 153 AND 156 OF THE PENAL CODE IN ACCORDANCE WITH MINORITY RIGHTS............................................................................................................................30 4.2.1 Introduction............................................................................................................................30 4.2.2 Conclusion..............................................................................................................................35 4.3 THE USE OF THE ANTI-LGBT LAWS IN MALAWI.........................................................................36 4.5 ANTI-LGBT LAWS IN OTHER COMMON LAW JURISDICTIONS.....................................................43 4.5.1 Introduction............................................................................................................................43
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