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
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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 I also undertake that any quotation or paraphrase from the published or unpublished work of another person has been duly acknowledged in the work which I present for examination.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 …......
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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.
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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.
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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.
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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
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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
4.5.2 Botswana...... 46
4.5.3 Conclusion...... 47
4.6 ANTI-LGBT LAWS IN RELATION TO HUMAN RIGHTS...... 48
4.6.1 INTRODUCTION...... 48
4.6.2 The Right to Dignity...... 50
4.6.3 The Right to Privacy...... 51
4.6.4 The Right to Equality:...... 51
4.6.5 Freedom Conscience...... 53
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4.6.6 CONCLUSION...... 54
4.7 THE RELIGIOUS COMMUNITY’S STAND AND OPINION ON ANTI-LGBT LAWS IN MALAWI...... 54
4.7.1 INTRODUCTION...... 54
4.8 THE GENERAL PUBLICS OPINIONS ON REMOVING THE ANTI-GAY LAWS IN MALAWI...... 58
Chapter 5...... 60 CONCLUSION AND RECOMMENDATIONS...... 60
5.1 Conclusion...... 60
5.2 Recommendations...... 61 BIBLIOGRAPHY...... 62
CHAPTER 1
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1.1 INTRODUCTION
Anti-LGBT laws can be traced as far back as 1891 in Malawi (then Nyasaland) under the British Central Africa Protectorate. This law like many other colonial laws were adopted under the independence government of 1966 under the one party era of Kamuzu Banda. The same can be made evident in many countries that were colonised by Britain like Zambia, India, Uganda, Rwanda, Jamaica, Namibia, Tanzania, Zimbabwe. In Malawi the Penal Code prohibits “carnal knowledge against the order of nature” attempts to commit “carnal knowledge against the order of nature”, and acts of gross indecency”.
Anti-LGBT laws can also trace their roots in religion which is one of the oldest cultural practices in history throughout the world both in the Christian faith and the Islamic faith with both religions practicing the laws of Moses. It is believed that such acts were a sin In Gods eyes and resulted in the death of the people of Sodom and Gomorah as depicted in the bible as a show of anger from God.
Human rights are basic rights and freedoms that belong to every person in the world, from birth until death, these rights are based on values like dignity, fairness, equality, respect and independence. These rights have three characteristics and these special characteristics make them different from other rights and these are inalienability, universality and interdependence.
Minority rights are the normal individual rights as applied to members of racial, ethnic, class, religious, linguistic or sexual minorities; and also the collective rights accorded to minority groups. Minority rights may also apply simply to individual rights of anyone who is not part of a majority decision.
Malawi on 18 May 1994 adopted a new Constitution which guaranteed the promotion, protection and enforcement of human rights, even though this is enshrined under chapter 4 of this said Constitution, since its adoption human rights have been violated and are not being enjoyed fully by the people of Malawi till date.
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In Malawi LGBT rights are not respected nor are they protected rather people found or proved to be practicing these rights are prosecuted. LGBT rights are part of minority rights as they are practiced by a small group of people in Malawi and the world at large. Malawi one of the countries which signed the treaty on the Universal Declaration on Human Rights or many other treaties as African Charter on Human and Peoples’ Rights, Convention on the Elimination of All Forms of Discrimination against Women, International Convention on Civil and Political Rights, International Convention on Economic, Social and Cultural Rights and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment1.
Under sections 153 and 156 criminalises consensual same sex behaviour between men and is punishable up to 14 years imprisonment as was evident of this law in action in the case of Republic v Steven Monjeza Soko and Tionge Chimblanga Kachepa.2 These laws enshrined in the Penal Code3 which are contrary to the principles enshrined in the Constitution of Malawi basically under sections 15, 20, 21, 33 and 45.
1.2 Background
The Constitution is the supreme law of the land. It regulates and outlines the relationship between the state and the individual citizen and the inter-relationship between laws and offices created under it, most importantly it establishes human rights in Malawi and guarantees the protection of all human rights by making them the supreme laws over any law or act of government by not only adopting the Bill of Rights but also enshrining it in the Constitution itself giving it legal supremacy in the land.
In an effort to guarantee that the atrocities carried out during the One-Party Constitution by government, government bodies and public officials towards the common citizens and or their critics the drafters of the 1994 Constitution enshrined in Chapter IV of the Constitution, the Bill of Rights for the protection of human rights and freedoms as a safeguard.
The topic of LGBT rights became a big debate in Malawi as a result of a criminal case brought against two gay men in Blantyer who were arrested due to the public outcry after news of their gay-marriage had hit the country. The case of Republic v Steven Monjeza Soko
1 https://en.m.wikipedia.org/wiki/Human_rights_in_Malawi accessed on 05/02/2020 2 Criminal Case Number 359 of 2009 3 Section 153 and 156
10 Student no: 005-176 and Tionge Chimblanga Kachepa.4 Triggered events that would lead to the suspension of all laws that, criminalised homosexuality on 5th November 2012. Barely less than year on November 2013 the High Court announced its intention to review the constitutionality of the laws that criminalise homosexuality by accepting an appeal which was delayed due to the pending determination by the Supreme Court on whether the High Court can proceed to review an issue of constitutionality made in January 2014. As of 2020 there has been no ruling.
Without the determination of the High Court on whether the laws that criminalise same-sex marriage are constitutional or so to say whether these provisions in the Penal Code are contrary to the laws and principles set out in the Constitution of Malawi thereby making them invalid due to such inconsistency, without it, the LGBT minority groups are left vulnerable towards all forms of inhumane treatment by the public and government bodies/institutions who still uphold the Penal Laws against homosexuals.
1.3 Statement of the Problem
The starting point in dealing with this unacceptable nature of the anti-LGBT laws is that Section 20 of the Constitution of Malawi provides for equal treatment of every person despite of any status which include sexual orientation “discrimination of persons in any form is prohibited and all persons are, under any law, guaranteed equal and effective protection against discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, disability, property, birth or other status or condition.
However in Malawi that is not the case. In December 2009, under the presidency of Bingu wa Mutharika, two men were convicted of “unnatural practices between and gross public indecency” and sentenced to 14 years at hard labour The case was of Republic v Steven Monjeza Soko and Tionge Chimblanga Kachepa. After widespread public criticism of this harsh punishment, the president pardoned the men. In the same month, however, the parliament passed legislation that criminalised sex between women, making it punishable by as much as 5 years in prison.
4 Criminal Case Number 359 of 2009
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1.4 Scope of Study
Malawi along-side many other African countries have seen the rise and focus in the implementation of human rights and policies and law in upholding the supremacy of the constitution and all laws made under it with regards to human right and minority rights.
The general scope of this research is to access the current extent to which the Constitution in Malawi mainly section 20 of the Malawi Constitution which provides for freedom from discrimination of persons in any form by any persons, law or government body. The paper will consider the Constitutional provisions that guarantee the protection and protection of LGBT rights in a secular democracy constitution.
The paper shall also consider other countries with the same secular democratic constitution like Malawi to compare how they have developed such laws over the years and how we may update our laws as such in the future.
1.5 Objectives of the Study
1. To examine the law, that addresses human rights in Malawi 2. To examine whether the law that prohibits exercise of LGBT rights in Malawi is still constitutional based on the 1994 Constitution of Malawi. 3. To examine the effectiveness of the decision rendered by the Court, in the 2009 Steven Monjeza case, with regards to human rights laws in Malawi
1.6 Research Questions
This provides a basis for laying out the study on the present topic and this has been restricted to the one legal question which out the main research question which reads as follows
“Are minority rights in Malawi specifically LGBT rights enforced?”
This broad question will be broken into the following specific questions in order to critically analyse the findings from extensions in the literature review in terms of the following principle research questions:
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1. What law addresses human rights in Malawi? 2. Are sections 153 and 156 consistent with the provisions of the 1994 Constitution of Malawi? 3. How effective is the decision rendered by the Court, in the Steven Monjeza case, with regards to human rights laws in Malawi?
1.7 Rationale of the Paper
This thesis expands on the literature on LGBT rights in Malawi, focusing on the rights guaranteed in the Constitution of Malawi. Findings were applied in a thematic manner by extracting the constitutional provisions related to LGBT rights in an attempt to find a balance between theory and practice.
The paper also shall also consider how the Constitution may be used as a lamplight towards the Malawian legal systems so as to awaken our law makers to update certain laws which are archaic
CHAPTER 2
Literature Review
2.1 introduction
It is an extensively held idea that enforcement of human rights ensures the protection of people against abuse by those who are more powerful in society which is mostly the state and its organs. The very important role of adherence of human rights can never be over
13 Student no: 005-176 overemphasized. But being part and parcel of international law human rights ratification into domestic law vary from state to state and thereby contributing to the none uniform definition of certain rights creating different understanding as to the legal implications of such rights when it comes to the sate upholding their commitment in compliance with human rights instruments.
As of such this Chapter generally looks at what other authors have written and discussed about this topic, in precise what other authors have written about freedom to equality, freedom of privacy, freedom of conscience and the right to human dignity.
2.2. Equality and None-Discrimination
There is no general definition of equality but a lot of international articles and domestic legislation has tried to protect each human being despite of their race, nationality, religion, colour sexual orientation and others leaving enough room of protection to every human being regardless of any status natural or unnatural. In reality the definition itself in Malawian laws leaves more to be desired as it is ambigious as it states out some of the known status’s but leaves the law to choose which status can be protected or not does not come out clear but guarantees protection of all human beings from discrimination. Human beings require that the State and all persons shall recognize and protect fundamental human rights and view of all individuals, groups and minorities.
Section 20 of the Constitution of Malawi provides for equal treatment of every person despite of any status which include sexual orientation “discrimination of persons in any form is prohibited and all persons are, under any law, guaranteed equal and effective protection against discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, disability, property, birth or other status or condition” yet in Malawi LGBT practitioners are prosecuted in the Courts of Malawi studies conducted by Malawi Human Rights Commission show that a small percentage are gays therefore fitting in into the status of minorities therefore for their rights to be protected.
It should also be noted that in Marinho v SGS Blantyer (Pvt) Ltd the Court Held:
“discrimination is now prescribed by the Constitution. The rights under this provision (section 20) are intended to apply between citizens. Where there has been a violation
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of them, the court is supposed to give an effective remedy … Resignation, revulsion and rejection are the usual feelings of a man who has been discriminated. The law should therefore take injury to feelings as a component of the damages awarded. It must also be borne in mind that any type of discrimination is forbidden. Its practice must really have been detested by framers of the Constitution that right in the Constitution that right in the Constitution they provided for two things that underline the attitude that this Court must have when faced with this sort of matter. First, the Constitution makes the right non-derogable. Secondly, the Constitution allows affirmative action by legislators to punish violators and to pass laws that promote respect for equality.”
Section 4 of the Constitution contains a strong general commitment to equality for all people of Malawi. It provides that “all the people of Malawi are entitled to the equal protection of this Constitution and laws made under it”.
Further Section 45 of the Constitution also provides the prohibition of derogation under subsection (2) with respect to some specified rights such as the right to equality and recognition before the law, the right to life, and the right to habeas corpus
In contrast, the United Nations Committee on Economic, Social and Cultural Rights (CESCR) in its general comment No. 20, adopted a more expansive definition of discrimination. The CESCR has however been accused of over-reaching by inferring rights that are not obviously present in the International Convention on Economic, Social and Cultural Rights.
Some legal commentators have urged Malawian Courts to adopt the definition in General Comment No. 18, as opposed to General Comment No.20, as the definition in General Comment No.18 was already in existence at the time the Constitution was being negotiated and adopted. It is thus contended that the framers of the Constitution took into account the definition in General Comment No.18 as opposed to General Comment No.20.
Equality before the law does not necessarily mean same treatment. Discrimination can arise just as readily from an act that treats as equals those who are different as it can arise from an act that treats differently persons whose circumstances are not materially different. Likewise , not every distinction in treatment will amount to discrimination.
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Bernard Williams in a well known article, “The Idea of Equality” point out that it is not just anything that can be counted as a relevant reason for treating people differently Williams says;
“that all men are human is, if a tautology, a useful one, serving as a reminder that those who belong atomically to the species homosapiens, and can speak a language, use tools, live in societies, can interbreed despite racial differences, etc, are also alike in certain other respects more likely to be forgotten. These respects are notably the capacity to feel pain, both from immediate physical causes and from various situations represented in perception and in thought, and the capacity to feel affection for others , and the consequences of this connected with the frustration of this affection, loss of its objects etc,”5
He argued that there are political and social arrangements that neglect the possession of these characteristics in certain groups while at the same time, acknowledge their presence in other groups. It is not that these social and political arrangements do not recognize the presence of these characteristics in the worst treated members of the society, but they claim that in the case of these members “….the characteristics do not give rise to any moral claim”, for example, to treat a person differently just because he or she is black, sounds totally irrational.
Williams further adds that another important feature of human beings is the desire for self – respect. He explains this as a certain desire to be identified with what one is doing, to be able to realize one’s own purpose and not to be the instrument of another’s will unless one has chosen to be so. Now if we treat some people as though they lack these characteristics, and thereby neglect the moral claim which arises from them, we are in a way neglecting features which all human beings share.6
The topic of LGBT rights has been unusually prominent, and has been the focus of great contention, during the last years of the Mutharika regime and the early months of the Banda administration. Under Malawi’s colonial-era sodomy laws, consensual same sex behaviour between men is punishable by up to 14 years in prison for men. In December 2009, under the presidency of Bingu wa Mutharika, two men were convicted of “unnatural practices between and gross public indecency” and sentenced to 14 years at hard labour. After widespread
5 Shodhganga.inflibnet.ac.in/bitstream/10603/28374/7/07_chapter%202.pdf 6 ibid
16 Student no: 005-176 public criticism of this harsh punishment, the president pardoned the men. In the same month, however, the parliament passed legislation that criminalised sex between women, making it punishable by as much as 5 years in prison.7
In a radio debate on November 5, 2012, Justice Minister Ralph Kasambara announced a moratorium on arrests on charges of sodomy, an act that Human Rights Watch characterised as “a compromise position, which will permit parliament to debate possible legislative change”. At least part of the reason for Kasambara’s action, reportedly, was a concern that Malawi’s antigay law might violate the constitution’s strong language about the “inherent dignity and worth of each human being” and “the rights and views of all individuals,” and that it was incompatible with the International Covenant on Civil and Political Rights, of which Malawi is a signatory of8.
Minority rights as applying to ethnic, religious or linguistic minorities and indigenous peoples are an integral part of international human rights law. Like children’s rights women’s rights and refugees rights, minority rights are a legal framework designed to ensure that a specific group which is in vulnerable, disadvantage or marginalized position in society, is able to achieve equality and is protected from persecution. The first post-war international treaty to protect minorities, designed to protect them from the greatest threat to their existence, was the U.N. Convention on the Prevention and Punishment
The debate on homosexuality that in 2005 ensued in the Malawi print media mostly suggested that homosexuality was not an acceptable practice to the majority of those that contributed to the debate. Although homosexuality is classified as a crime in Malawi, general public is not aroused if it is done in privacy, among two consenting adults. Although abuse of homosexuals in Africa is not new, as in Apartheid South Africa, where homosexuals were forced to sex-change surgery, it seems that people in Malawi are not so much concerned with bringing an issue of sex in the public for public discussion. However, the issue has at least been moved out from the closet to the public arena. How much change will be possible within the traditional society of Malawi remains to be seen. In South Africa, same sex unions are protected within the Bill of Rights of the Republican Constitution. Although the Malawi Constitution has a Bill of Rights similar to that of South Africa, the same constitution is used to oppose the same sex union based on the “sanctity” of heterosexual marriages9
7 https://en.m.wikipedia.org/wiki/Human_rights_in_Malawi accessed on 08/02/2020 8 ibid 9 www.ncbi.nlm.nih.gov/pmc/articles/PMC2080530/ accessed on 22/03/2020
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2.3 freedom of Conscience
Freedom of conscience has long been touted as a fundamental principle of a pluralistic society. Two hundred years ago, Thomas Jefferson asserted that no law “ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority.”10 Since that time, courts and legislatures have continued to hold freedom of conscience in high regard. As indeed contemporary philosopher John Rawls has described liberty of conscience as one of the fixed points of our considered judgments of justice”.11 So much evident that here can be no one definition that encompasses their entire definition of what the freedom fully pertains to as it is a matter of religion, morality and individual and community conscience varying from jurisdiction to jurisdiction due to their community values nonetheless the idea of freedom of conscience is not one which is hard to grasp.
Freedom of Conscience is an internationally protected and recognized freedom under Article 1812 *everyone has the right to freedom of thought, conscience and religion, this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.” The Human Rights Committee has made extensive comments in its General Comment No. 22 on the right to freedom of thought, conscience and religion:13
(1) The right to freedom of thought, conscience and religion (which includes the freedom to hold beliefs) in article 18.1 is far-reaching and profound; it encompasses freedom of thought on all matters, personal conviction and the commitment to religion or belief, whether manifested individually or in community with others. The Committee draws the attention of States parties to the fact that freedom of thought and the freedom of religion and belief. The fundamental character of these freedoms is also reflected in the fact that this provision cannot be derogated from even in time of public emergency, as stated in article 4.2 of the Covenant. (2) Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms “belief” and “religion” are to be broadly construed. Article 18 is not limited in its application to traditional religions or to
10 Thomas Jefferson, to the Society of the Methodixst Episcopal Church at New London, Connecticut (Feb. 4. 1809), in 8 THE WRITING OF THOMAS JEFFERSON 147 (H.A. Washington ed, 1854). 11 JOHN RAWLS, A THEORY OF JUSTICE 206 (1971) 12 Universal Declaration of Human Rights 13 Humanrights.gov.au/our-work/rights-and-freedoms/freedom-thought-conscience-and-religion-or-belief
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beliefs with institutional characteristics or practices analogous to those of traditional religions. The Committee therefore views with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility and the part of a predominant religious community.
The freedom of thought, conscience and religion has long traditions in both domestic and international law. States have not considered it difficult to allow their citizens right to thin. The difficulties come to the right to express one’s conviction, the right to organize as a community in order to promote a religion or belief, and the right to act in accordance with one’s conscience in cases where domestic legal systems seems to require uniform behaviour irrespective of the different convictions of individuals. The real problem concerning freedom of thought itself (the freedom of an inner state of mind), but issues that also relate to other human rights. In this sense, freedom of conscience gives clear evidence that human rights cannot be protected separately from each other but are realized only as a totality.14
The Malawi Constitution prohibits discrimination on the basis of religion and provides for freedom of conscience, religion, belief and thought as prescribed under section 33 of the Malawi Constitution. The freedom entails freedom to change religion or belief, whether to belong to or not to belong to any belief or religion, the freedom of thought having the right to hold unpopular ideas or beliefs. Simply put as the right to follow one’s own beliefs in matters of religion and morality.
However, as aptly put by Rafael Domingo, “though internationally protected under the same umbrella, freedom of conscience is ontologically different and legally separable from freedom of thought and freedom of religion. This fact should be reflected in all secular legal systems; the proper legal mechanisms for protecting these three freedoms are different.”
He further adds, that freedom of conscience protects individual moral judgments since they are conclusive and so should be followed by the person making them. It provides legal recognition of, and protection for, the idea of moral obligation. What differentiates freedom of thought and freedom of conscience is that freedom of conscience protects the binding decision of an acting person to do something here and now. It protects the fact that this decision is a binding decision, i.e., one that generates a moral obligation. What freedom of thought protects (a set of ideas) is not, as such, binding. But like freedom of thought, freedom
14 Ccnmtl.columbia.edu/projects/mmt/udhr/article_18.html
19 Student no: 005-176 of conscience is an absolute inner freedom it does not permit any political interference in the process of making a final moral judgement.
The secularization of freedom of conscience should lead us to expand it to embrace the fulfilment of purely moral (as opposed to religion) obligations. Indeed, if in the contemporary understanding freedom of conscience is to be based on dignity rather than religion, religious freedom cannot remain the only way to protect the expression of judgements of conscience. In other words, if religious freedom and freedom of conscience are no longer necessarily linked, freedom of conscience must extend to acts based on conscience but not religion. After all, the point of a moral decision is not the decision as such but he fulfilment of the corresponding obligation. Obligations are to be performed and not just generated.
As Isaiah Berlin said; “the scope of freedom of conscience should be narrower than that of religious freedom, since the secular legal systems of democratic political communities are by definition moral and non-religious. (that is, they can’t avoid staking positions on certain moral questions pertaining to the common good, but they must avoid stacking positions on specifically religious matters.) so they can limit individual morality in order to develop a public morality, but they cannot limit religion and belief in order to develop a “public religion”. More precisely secular legal systems cannot limit religion if there is no ground of public order or public morality for doing so. Because of our interdependence, the exercise of freedom by some citizens always comes at the expense of restricting the freedom of others. In a country where nude beaches are allowed, the exercise of freedom by those who want to frequent such beaches require restricting the freedom of those who believe they must avoid them on moral grounds. On the other hand, the prohibition of nude beaches based on reasons of public morality implies a restriction of the freedom of those who want to frequent them.”
The contemporary understanding of conscience has broadened to expand beyond the scope of religious convictions. Steven Smith has described the linking of freedom of conscience with religious exercise as “problematic, if not thoroughly objectionable.” Most legal scholars now agree that protections for “secularized conscience” as well. This approach is reflected most notably in jurisprudence extending the right of conscientious objection in the military to those with deeply held beliefs outside the sphere of organized religion. According to the Supreme Court in United States Vs. Seeger, belief is a “broad spectrum,” an “ethical concept….founded on human experience ,” that may in fact fall outside the scope of any individual’s definition of religious conviction. In Welsh v, United States, for example, the
20 Student no: 005-176 claimant objector was ”insistent” in denying that his views against war were religious, going so far as to cross out “religious training” as a reason for opposing participation in was on his Selective Service statement. The Court, however concluded that the state ought not to defer to a registrant’s interpretation of his beliefs, and may consider these beliefs to be “religious” in nature if it is clear that the claimant holds them with the strength of more traditional religious convictions.” Seeger and Welsh, according to Kent Greenwalt, “essentially eroded any distinction between religious and nonreligious claims to conscientious objection.”15
2.4 Right to Privacy
The right to privacy often means the right to personal anatomy, it refers to the concept that one’s personal information is protected from public scrutiny in what can be summarized as “the right to be left alone”. This right is protected by both international and domestic laws. The right to privacy often must be balanced against the states compelling interest, including the promotion of public safty. In light of a States authority on limiting the right to privacy written by Justice Anthony Kennedy he stated that “the petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”16
International law through the ICCPR promotes and protects the right to privacy under Article 17 of the convention that states that (1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation. (2) everyone has the right to the protection of the law against.in Malawi the right to privacy as adopted from the Bill of Rights is protected by the Constitution of Malawi under Section 21 which provides that “ Every person shall have the right to personal privacy, which shall include the right not to be subject to (a) searches of his or her person, home or property (b) the seizure of private possessions; or (c) interference with private communications, including mail and all forms of telecommunication.
Three classic theories of privacy have emerged that view the right to privacy in terms of;
15 Sawicki, Nadia N, The Hollow Promise of Freedom of Conscience, 33 Cardozo I. Rev. 1389 2011-2012 16 www-livescience-com.cdn.ampproject.org
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(1) The non-intrusion theory of privacy which views privacy as either, being let alone and
being free from government intrusion which is sometimes referred to as “accessibility
privacy.”
(2) The non-interference theory views privacy as freedom from interference in making
decisions which emerged in the 1960s, following the Griswold v. Connecticut U.S.
Supreme Court case in 1965 which referred to the right as “decisional privacy.”
(3) The control and limited access theory of informational privacy that defines Privaacy
as control over the flow of one’s personal information, including the transfer and
exchange of that information17
Ruth Gavison18 argues that interests in privacy are related to concerns over accessibility to others, i.e., what others know about us, the extent to which they have physical access to us, and the extent to which we are the subject of the attention of others. Related functions of privacy are “the promotion of liberty, autonomy, selfhood, human relations, and furthering the existence of a free society.”19
Anita Allen (1988) also characterizes privacy in degrees of inaccessibility. She views speculation, solitude, secrecy, confidentially, and anonymity as forms of privacy. Allen argues that privacy is required by the liberal ideals of personhood, and the participation of citizens as equals. Building on the views of Gavison, Allen and others, Adam Moore (2003) offers a control over access account of privacy.
Edward Bloustein20 argues it is possible to give a general theory of individual privacy that reconciles its divergent strands, and “inviolate personality” defines one’s essence as a human being and it includes individual dignity and integrity, personal autonomy and independence. He further claims the common conceptual thread linking diverse privacy cases-prohibiting, amongst other things, dissemination of confidential information, eavesdropping and surveillance-is the value of protection against injury to individual freedom and human
17 James Moor’s Theory of Privacy (2004) 18 (1980) 19 Gavison, 1980, p347 20 (1964)
22 Student no: 005-176 dignity. He admits these terms are somewhat vague, however he defends this analysis as conceptually coherent and illuminating. 21
It is this emphasis on personal autonomy that provides Vincent Samar22 with the basis of his theory that justifies the extension of the privacy right to protecting, among other things, gays and lesbians from prosecution under sodomy statues that make adult consensual homosexual acts crimes. Samar believes that in order for participatory democratic societies to function optimally, it is crucial that government encourage personal autonomy. To encourage e personal autonomy, he believes the State must protect privacy.
Samar states that within the context of a democratic institution privacy is a necessary precondition for guaranteeing personal autonomy. Samar believes that one of the main reasons controversy has surrounded privacy issues in recent years is that courts, legislators, and the general public “do not have a clear understanding of the scope and content of privacy or why we are justified in protecting it as a right”. In other words, the Court has not adequately explained how such seemingly diverse rights as a woman’s right to have an abortion and an individual’s right to possess pornography are protected under the common rubric of “privacy.” Samar attempts to provide this explanation by discussing the importance of autonomy to the successful functioning of democratic institutions.
2.5 Freedom of human dignity
Article 1 of the Universal Declaration of Human Rights (UDHR), asserts that “all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards another in a spirit of brotherhood. The free human person and his dignity are the highest values of the constitutional order. The state in all of its forms is obliged to respect and defend it. This is based on the conception of man as a spiritual-moral being endowed with the freedom to determine and develop himself.23O’Regan J. held that “recognising a right to dignity is an acknowledgment of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern. This right therefore is the foundation of many of the other rights…”24
21 Lotte Spreeuwenberg, Justifying a Right to Privacy (2016) 22 The Right to Privacy 23 Academic.oup.com/hrlr/article/7/2/299/598664 24 R1995(3) SA 391 (CC) para 507A
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The rationality aspect can also be found in Immanuel Kant’s concept of dignity. In addition to rationality, autonomy constitutes the core of Kant’s theory.25 He further asserted that “humanity so far as it is capable of morality, is the only thing which has dignity.” Kant believes that this moral dimension makes people ends in themselves but not means and requires a dignified treatment. Kantian notion of dignity calls for respect the individual choices of persons as well as not to treat them as objects that disregard their free will. While inherent dignity connotes individuality, rationality and autonomy, it does not judge the merits of individual choices or reasoning. According to the concept of inherent worth, every individual has self-worth just because of being human regardless of the choices he makes. Furthermore, the universal nature of inherent worth and the Kantian autonomy in the period of enlightenment gave a new spirit to the modern concept of dignity. The Kantian theory is important for understanding the modern concept of dignity in the sense that it enables people to pursue life projects while respecting the dignity of other members of the community. Thus, one’s dignity is closely connected to the recognition of others.26
The modern constitutional law rests heavily on the Kantian vision of dignity making the inherent dignity for every individual a legal principle. Thus, the modern concept of dignity discards the traditional notion viewing dignity as a privilege for nobles. Instead it requires the states to respect equal dignity of individuals.27
Neomi RAO28 offers another concept of dignity consisting of three specific conceptions. First, inherent dignity requires protection from arbitrary interference by the state. Whereas, the positive conception includes welfare or social protection component demanding some affirmative action and progressive regulations by the state. The third conception in this scheme is the dignity of recognition that differs radically from the first and second conceptions. The recognition demands respect from the society and the state for “the unique identity of this individual or group, their distinctness from everyone else. Paul Tiedmann, attempts to construe human dignity as a non-metaphysical absolute value of personal identity. Taken in this sense, dignity is a relational concept. Tiedmann upholds that the awareness of one’s identity depends on the identity of others. On this basis, he examines
25 CLAMOHAM, 2006 26 www.scielo.br 27 ibid 28 RAO, Neomi. Three Concepts of Dignity in Constitutional Law. Notre Dame Law Review, Indiana, v. 86. P.183
24 Student no: 005-176 human dignity as a legal concept, applying by the criteria of a connection to ordinary language, distinctness, metaphysical restraint and empirical significance.29
While Stephan Kirstie30 finds the common use of the concept of dignity too strong for law. Responsible for this problem are religious or particular moral assumptions behind the idea of human dignity. Kirstie identifies two ways to avoid this problem and to transform the concept into law: One is to generalize its content; the other is to weaken its form. The disadvantage of generalization is that the idea loses an applicable meaning. Weakening its form, however, has disadvantages too. When understood as a mere objective value or a principle that binds the state, but does not contain an individual right, it loses its impact in the balancing against other principles and values. The solution is to understand human dignity as the right to be recognized as a person in law. Thereby human dignity keeps the strong form of an individual right and has a specific content, guaranteeing the individual always to be treated as a subject of law and never as a mere object.
Chapter 3
Research Design and Methodology
3.1 Introduction
This thesis employed the use of qualitative methodology. Reason for adopting this method was that qualitative research was able to provide complex textual descriptions of how people experience a given research issue. It provided information about the ‘human’ side of an issue, which often consisted of, contradictory behaviors, beliefs, opinions, emotions and relationships of individuals. The qualitative research method was also effective in identifying intangible factors, such as social norms, practices and mindsets whose role in the research topic may have not been readily apparent.
29 “Human Dignity as an absolute Value” 30 “A Legal Concept of Dignity as a Foundation of Law”
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The paper also adopts a Desktop research methodology. Desk research refers to secondary data or that which can be collected without fieldwork. To most people it suggests published reports and statistics and these are certainly important sources. In the context of this chapter the term is widened to include all sources of information that do not involve a field survey. This most certainly will include searching libraries and the internet.
The work has been organized into five chapters. At its most modest, this research seeks to fill an empirical gap by analysing the enforcement of human rights with regards to LGBT rights in Malawi. At a more ambitious level, I set out to interrogate the dynamic intercourse between the various decisions made in LGBT rights made in Malawi towards constitutional theories and constitutional interpretation methodologies.
3.2 Sampling Procedure
Participants of the research were selected based on their particular characteristics that are of interest to the thesis. In this case the respondents were specific persons with in-depth knowledge and experience in issues regarding LGBT rights and Constitutional human rights.
As a result, purposive sampling was used as it facilitated grouping participants according to preselected criteria relevant to the research questions and involves the conscious selection by the researcher of certain persons to include in a study.
3.3 Data Collection
This thesis relied on primary and secondary sources of data which were picked based on their reliability and suitability on the subject matter which is the enforcement of LGBT rights and the case of Republic v Steven Monjeza Soko and Tionge Chimblanga Kachepa. . The primary sources included interviews from respondents while the external secondary data sources used in this thesis included books, journals, statutes, constitutions, case law, magazines, newspapers, government policy papers, research papers, reports both official and unofficial, statistics, mass media records and web based materials.
3.4 Ethical Consideration
First, respect for the respondents was achieved through ensuring their autonomy and protection from exploitation during the interviews. Second, the dignity of all research
26 Student no: 005-176 respondents was respected by ensuring confidentiality at all times and minimizing the risks associated with research. Finally, the research was committed to ensuring a fair distribution of the risks and benefits resulting from research where those who take on the burden of research participation also shared in the benefits of the knowledge gained.
3.5 Research Methods
3.5.1Design.
Data will be collected using a library-based type of research on human rights documents in Malawi and internationally for example the Constitution of Malawi because this is the easier way of data collection because of the time provided for the dissertation is not enough to do interviews or write questioners.
In the second phase will collect data using a desktop type of research using the internet to collect information on already written data which is secondary information on LGBT rights and human rights basing the research on books and mostly articles on the subject in comparison with the Legislations here in Malawi whether they are fitting in into the required standard on human rights enforcement.
Both phases of the methods will seek to analyse and the detailed description of minority rights specifically LGBT rights, the cases related thereto, the relevant statutory provisions, judicial decisions and other scholarly documentations on the subject of LGBT rights here in Malawi and internationally.
3.5.2 Analysis. The data collected will be used for comparative analysis to the laws in Malawi and will be stalled on computer, the aim of the data collected will establish on whether LGBT rights are enforced in Malawi and whether they are as of Constitutional rights here in Malawi
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3.6 CONCLUSION
Studies on the issue regarding enforcement of LGBT rights and abolishment of colonial anti- LGBT laws in the world are becoming more of a global issue as it is seen as a threat to the enforcement of human rights, specifically the right not to be discriminated in any form is prohibited and all persons are, under any law, guaranteed equal and effective protection against discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, disability, property, birth or other status or condition. However it is legally becoming evident that the new laws adopted under the Independence Constitution of Malawi are in conflict with the majority of the colonial-era laws with the recognition of human rights and enshrining of the Bill of Rights in the Malawi Constitution making it part of the Supreme Laws in the land.
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Chapter 4
Research Findings
4.1 ARE MINORITY RIGHTS CONSTITUTIONAL RIGHTS IN THE MALAWI CONSTITUTION AS PER CHAPTER 4 OF THE CONSTITUTION.
4.1.2 Introduction
Minority rights are a serious issue affecting our today’s society and the world at large. In as so much as there are Non-Governmental Organisations protecting minority rights and educating the public on this issue but there has not been a formal legislation recognising individual minority rights in Malawi. Minority rights are the normal individual rights as applied to members of racial, ethnic, class, religious, linguistic or sexual minorities; and also the collective rights accorded to minority groups. Minority rights may also apply simply to individual rights of anyone who is not part of a majority decision.31
With increasing global awareness and focus on human rights, the United Nations (UN) has made a declaration on minority rights. The declaration is not law, but many countries, especially democracies, are obligated to adhere to its content because they have signed treaties. Although there are still many countries who grossly violate human rights, especially in the case of minorities, the United Nations’ declaration offers a well rounded explanation of minority rights.32
Adopted in 1992, the Declaration on the Right of Person Belonging to National or Ethnic, Religious and Linguistic Minorities globally promotes human rights and individual freedom without regard to race, sex, language or religion. Specific minority rights mentioned in the declaration include the right for a minority group to take pleasure in its
31 https://en.m.wikipedia.org/wiki/Minority_rights accessed on 22/04/2020 32 m.wisegeek.com/what-are-minority-rights.htm accessed on 1/05/2020
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own culture, practice its choice of religion and use its own language without fear of discrimination.33
4.1.3 What are Constitutional Rights
A constitutional right is a liberty or right whose protection from governmental interference is guaranteed by a constitution. A constitutional right can be a prerogative or a duty, a power or a restraint of power, recognised and established by a sovereign state or union of states. All constitutional rights are expressly stipulated and written in a consolidated national constitution, which is the supreme law of the land, meaning that any other laws which are in contradiction with it are considered unconstitutional and thus regarded as invalid. Usually any constitution defines the structure, functions, powers and limits of the national government and the individual freedoms, rights, and obligations which will be protected and enforced when needed by national authorities.34
In Malawi they are Constitutional rights enshrined in the Constitution of the Republic of Malawi and it is recognised as the supreme law of the land and that any act of parliament or law which is inconsistent with it shall be considered as a unconstitutional and be regarded as unconstitutional35. The basic and individual rights and freedoms of this Constitution are provided for under Chapter 436 it provides that human rights and freedoms enshrined in the chapter shall be respected and upheld by national authorities and further on continues that Government shall ensure the promotion, protection and enforcement of those rights and the redress of any grievances in respect of those rights37. So to say in Malawi they are recognisable Constitutional rights under this piece of legislation called the Constitution.
4.1.4 Are Minority Rights Constitutional Rights in Malawi.
33 ibidi 34 https://en.m.wikipedia.org/wiki/Constitutional_right accessed on 02/05/2020 35 Section 5 of the Constitution 36 Republic of Malawi (Constitution) Act. 1994 37 Section 15 of the Constitution
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Minority rights refer to rights of an individual or a group who are a small number in comparison to the remainder of the population. In the context of international law, minority rights are most concerned with the national, ethnic, religious or linguistic minorities, but other minority groups exist. Minority rights regularly change in conjunction with minority status, which is determined by location. For example, a Jewish man in the United States is considered a religious minority, while the same man in Israel would be part of the majority.
The Malawi Constitution has often been described as very strong in its human-rights guarantees. The Bill of Rights included in the Constitution, according to the international Bar Association, explicitly protects “the rights to life, dignity, equality and the right to freedom of conscience, belie, thought and religion and to academic freedom.” It also protects “freedom of expression, freedom of information, freedom of movement and freedom of assembly. Any limit or restriction imposed on rights and freedoms must be consistent with Malawi’s obligations under international human rights law.”38
Malawi inherited human rights from independence adoptinging political and civil rights into its laws by 1972 but rather good progress on human rights was made after the introduction of multi-party democracy in 1994 when Malawi’s Democracy Constitution went into effect. A British report noted that Malawis Constitution “protects fundamental rights”, that the country “has signed up to most international treaties”, and that there were “no political prisoners in Malawi jails as was the case during the one party era.” The report also pointed to progress “in the areas of macroeconomics stability and access to basic social and economic rights such as health, education, food security and justice,” while calling for improvements” in the areas of press freedom, freedom of assembly and speech and the rights of minority groups39
As much as Malawi recognises Constitutional Rights then it also recognises minority rights as part of constitutional rights. In accordance with the meaning of minority rights then in Malawi minority rights are Constitutional rights for example the protection of people with disabilities provided for in the constitution, it enshrines the equal work opportunities of people with disabilities40 and it also guarantees their equal protection against discrimination on grounds of disability41. So human rights are indivisible, interrelated and interdependent,
38 “Rule of Law in Malawi: The Road to Recovery”. IBAHRI. 39 “Human Rights in Malawi” British High Commission Lilongwe. Retrieved January 10, 2013. 40 Section 13 (g) of the Constitution 41 Section 20 (1) of the Constitution
31 Student no: 005-176 for the reason that it is insufficient to respect some human rights and not others. In practice, the violation of one right will often affect respect for several other rights42. So all minority rights have to be enjoyed and respected protected and enforced by the national authorities.
Under Malawi’s colonial-era sodomy laws, consensual same-sex behaviour between men is punishable by up to 14 years in prison for men. In December 2009, under the presidency of Bingu wa Mutharika, two men were convicted of “unnatural practices between men and gross public indecency” and sentenced to 14 years at hard labour. After widespread public criticism of this harsh punishment, the president pardoned the men. In the same month, however, the parliament passed legislation that criminalized sex between women, making it punishable by as much as 5 years in prison.43
4.1.5 Conclusion
With that being said minority rights is a serious issue in Malawi which most Malawians are not aware of and thus affecting our societies due to the violation of their rights just because they are in the minority voice doesn’t mean they can’t be heard and respected or protected by national authorities like the way people who practice LGBT rights have no voice in Malawi even though they are classed as an international minority group whose rights have to be respected and protected internationally.
4.2– CONSTITUTIONALITY OF SECTION’S 153 AND 156 OF THE PENAL CODE IN ACCORDANCE WITH MINORITY RIGHTS.
4.2.1 Introduction. These provisions are under Chapter XIV44 on offences relating to religion. Religious offense means any action which offends religious sensibilities and arouses serious negative emotions in people with strong belief and which is usually associated with an orthodox response to, or correction of, sin45. Under section 153 it provides for unnatural offences which is defined as whereby any person has carnal knowledge of any person against the order of
42 www.un.org/en/globaleissues/briefingpapers/humanrights/ accessed on 04/05/2020 43 “Malawi Human Rights” Amnesty International. 44 Penal Code 45 http://en.m.wikipedia.org/wiki/Religious_offense accessed on 04/05/2020
32 Student no: 005-176 nature; or has carnal knowledge of an animal; or permits a male person to have carnal knowledge of him o he against the order of nature this is whether the persons do it in public or in private it still makes it an offence punishable to 14 years imprisonment. And section 156 provides for indecent practices between males which can be defined as whereby any male person commits any act of gross indecency with another male person whether in public or in private. These acts have been illegal in Malawi since 1891 before the adoption of the 1994 Constitution46.
Since the Penal Code of Malawi which was adopted and based on the colonial code of 193047came into force not every provision was amended to be consistent with the newly enacted 1994 Constitution which adopted the Bill of Rights into it and provides for protection and enforcement of human rights and that human rights shall be respected. Section 33 of the Constitution provides for freedom of conscience which is also enshrined in Article 18 of the UDHR which also provides for the right to freedom of thought conscience and religion; this right includes freedom to change religion or belief, and freedom, either alone or in community with others and in public or private, to manifest religion or belief in teaching, practice, worship, and observance , and Article 19 provides allows the right to freedom of opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. With these two articles, Article 18 of the UDHR allows people to hold and express religious ideas and other beliefs or a lack of religious belief that may be offensive to others or to a majority of citizens.
So since sections 153 and 156 of the Penal Code are religious based offenses, those which a majority of christians and moslems thought to be offensive to their religious beliefs that it’s a sin for a man to have any sexual actions or activities with a fellow man the same applied to women but nonetheless Malawi is a secular state. Freedom of religious association is guaranteed to all. It was and still is against their religious teachings and beliefs nonetheless since the Constitution provides for freedom of conscience and religion this means that one can choose whether to hold a belief or not or to create a belief of his own. Even if it is offensive to a particular group of people of a different belief as long as it is not harmful to the
46 http://en.m.wikipedia.org/wiki/LGBT_rights_in_Malawi accessed on 04/05/2020 47 https://en .m.wikipedia.org/wiki/Traditional_courts_in_Malawi
33 Student no: 005-176 other person. Just because a group of people perceive an act as a sin and they find it offensive it does not make it a crime because other people do not belong to that particular belief.
Timothy Mtambo, a campaigner for minority rights and also the executive director for the NGO Centre for Human Rights and Rehabilitation, was quoted to having said “These laws are archaic and undemocratic and these laws are not supposed to be implemented in the nation that has the human rights regime,”. 48
Therefore sections 153 and 156 are contrary to the Constitution and the UDHR on the basis of human rights because they deny the enjoyment of certain rights in the constitution and Government has done nothing in the protection of these rights. Section 44 (1) provides for the exercise of rights and freedoms provided for in the Constitution not to be restricted or limited unless those prescribed by law, which ae reasonable, recognised by international human rights standards and necessary in an open and democratic society. Therefore section 33 of the Constitution is one of non-derogation under section 45(2) (h) of the same Constitution. This means the prosecution of people under sections 153 and 156 of the Penal Code without following the requirements under section 45 (1) thereby making the prosecution inconsistent with the Constitution because it does not follow the requirements whereby these rights can be derogable.
Section 5 of the Constitution provides that any Act of Government or law that is inconsistent with it shall be to the extent of such inconsistency, be invalid. The inconsistency that the provisions in the Penal Code specifically sections 153 and 15649 render them invalid therefore inapplicable in the Courts of Malawi because the Constitution is the supreme law of the land. Because they act as a restraint to the enjoyment of the rights of a minority society and section 4 of the Constitution entitles all Malawians equal protection of the Constitution and the laws made under it whether in a majority or minority.
Despite the fact that another group of people do not find an act as sinful therefore not an offence because of their religious beliefs as everyone has a right to believe in what they want nevertheless the law looks at whether it brings harm to one’s self or another. In the Hart Devlin debate Lord Wolfenden recommended that the prurpose of criminal law was to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others ... not to
48 Annuls-governments-suspension-on-anti-gay-laws/3188056.html 49 Penal Code
34 Student no: 005-176 intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes we have outlined.
So we further look at what makes an act harmful, the criminal law is justified in prohibiting harmful conduct (Feinberg argues) only if that conduct is also wrong. Harm may be a necessary condition, but it is not a sufficient condition, of criminalisation. Feinberg defines harm in terms of a setback to a person’s interests and wrongfulness in terms of invasion of a right that such an interest be protected. Feinberg’s third contribution is a perhaps-unintended corollary of the first two. Like many ‘‘liberal’’ contributors to the Debate, Feinberg begins with a ‘‘presumption in favour of individual liberty.’’ This means (in his terms) that everyone has both an interest in freedom of action and a (presumptive) right that that interest be protected. It follows that restricting a person’s freedom of action causes them harm.
In these terms, what the harm principle says is that the harm of restricting a person’s protected interest in freedom of action can be justified only if the person has caused wrongful harm to another or has, in other words, wrongfully invaded an interest of the other. Since there is harm on both sides of the equation, as it were, determining the limits of the criminal law depends on weighing one harm against the other or, in other words, balancing conflicting interests.
A lawmaker faced Feinberg also distinguishes between harms and evils. All harms are evils, but not all evils are harms because not all evils set back the interests of any individual person(s). It is unclear whether Mill thought that harm was a necessary condition of criminalisation. On the one hand, he speaks of exercises of power generally and not the criminal law in particular. On the other hand, C.L. Ten argues that Mill’s concern was to exclude certain grounds of coercion rather than to specify necessary conditions: with a decision whether or not to criminalize particular conduct must decide whether or not the interest in being free to engage in that conduct outweighs the interest in not being adversely affected by it. Feinberg reaches much the same conclusion as a result of developing what he calls ‘‘mediating principles,’’ which he considers to be necessary in order to make the abstract harm principle practically useful. For example, the relative ‘‘importance’’ of the interest harmed by particular conduct and the interest in engaging in that conduct, Feinberg argues, is relevant to determining in practice whether the criminal law is justified in regulating the conduct. Both lines of argument suggest that determining the limits of the
35 Student no: 005-176 criminal law is better understood in terms of reconciling the competing interests of agents and those adversely affected by their conduct, than in terms of implementing a presumption in favour of the agent’s freedom of action. Feinberg’s third contribution to the Debate, then, was to demonstrate (perhaps unwittingly) that the process of giving practical effect to the harm principle may lead us to re-evaluate the ‘‘lexical’’ priority of freedom of action which is assumed to underpin it.
One important consequence of making explicit the distinction between wrongfulness and harmfulness was reconceptualisation of the Debate in terms of whether it is ever justifiable to criminalize conduct merely on the ground that it is wrongful, regardless of whether it is (and even if it is not) harmful. Whereas Feinberg proposed wrongfulness as an additional, necessary condition for criminalisation, others have considered whether it might operate as an alternative, sufficient condition. For instance, John Gardner and Stephen Shute have argued that the reason why rape is prohibited is because it involves wrongful invasion of a person’s sexual autonomy. Rape is a criminal offence regardless of whether it causes any harm to the victim – and rightly so, they say. Nevertheless, they argue, criminalisation of rape does not offend the harm principle because that principle does not require that harm be caused to identifiable individuals as a result of particular instances of criminal conduct, but only that society would be harmed if rape were not a criminal offence. On assumption that if rape were not a criminal offence, it would occur more often, the result would be a society where people felt more insecure and enjoyed less sexual autonomy. In short (say Gardner and Shute), raping a person is wrong even if it causes the person no harm, and a society in which rape was not criminalized would be a worse society to live in than those where it is.
In the light of the exchange between Hart and Devlin and various subsequent contributions, the purpose of this paper is to reconsider starting points of the Debate. I will suggest that those starting points distorted and cramped the Debate, and continue to do so. More positively, I will argue, first, that the limits of law are better fixed by open-endedly assessing reasons for and against legal regulation than by elaborating the harm principle. Secondly, I will show that the questions addressed in the Debate are relevant to regulation of conduct by civil law as well as by criminal law. Thirdly, I will argue that the Debate rests on an understanding of the relationship between law and morality according to which the two occupy distinct normative domain’s, and conflicts between them ought to be resolved in favour of morality. I will offer an alternative approach to law that stresses its social value and
36 Student no: 005-176 which takes it seriously as a potential source of correct or preferable norms of human conduct.50
So the acts described in the provisions might be harmful but they are not wrong as seen in the debate above so the debate supports the Constitutional notion as provided for under section 33 of the Constitution. The long-standing controversy about the law’s proper role in enforcing morality has entered a new phase with the U. S. Supreme Court’s decision in 2003 invalidating state criminal laws prohibiting same-sex sodomy.
On its face, the Court’s opinion in Lawrence v. Texas51 might appear to rest on the libertarian principle enunciated more than a century ago by John Stuart Mill: that “the only purpose for which power can be rightfully exercised over any members of a civilized community, against his will, is to prevent harm to others.”2 The Court does not explicitly invoke Mill’s principle; and it is highly unlikely that the Court majority is prepared to endorse the implications that Mill drew from this principle, to invalidate laws restricting narcotics usage or commercial sex. But Lawrence can be read at least to suggest that state coercion must be aimed at secular harms, at something more than simple moral approval or disapproval of individuals‟ conduct.Inthissense, conduct. In this sense, Lawrence might be understood to rest on the spirit of Mill’s dictum, even if secular justifications might be identified for specific state restrictions that he would not approve.
4.2.2 Conclusion With all being said above, it shows that the law makers in Malawi including the Penal Code did not try in check and amending or reforming some of the laws in the Penal Code so as to put them in line with the new 1994 Constitution so as to not create inconsistency’s at a later time because clearly when the sections 153 and 156 were being framed they did not have in mind the coming in of the Bill of Rights into the Constitution of Malawi therefore this has created confusion in the society in Malawi. Because following the laws prescribed in the Constitution sections 153 and 156 are invalid as they are inconsistent with the Constitution.
50 Sixthformlaw.info/01_modules/other_material/law_and_morality/08_hart_devlin.htm 51 120 S. Ct. 2472 (2003)
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4.3 THE USE OF THE ANTI-LGBT LAWS IN MALAWI
the Malawi Government through it three separate arms have responsibilities respectively for the implementation of all laws which embody the express wishes of the Malawi and to ensure the enactment of laws that reflect the interests of all Malawians and lastly the responsibility of protecting, interpreting and enforcing the Constitution and all laws under it in an independent and impartial manner with regard to legally relevant facts and prescriptions of the law.
In late December 2009, a trans-woman, Tiwonge Chimbalanga, and a man Steven Monjeza, were arrested after holding a traditional “engagement” party. On 18 May 2010, they were found guilty of having committed “unnatural offenses” and “indecent practices between males”. On 29 May 2010, then President Bingu wa Mutharika pardoned both individuals. However, in November 2012, President Joyce Banda suspended all laws that criminalised homosexuality. In July 2014, the Justice Minister announced that Malawi would no longer arrest people for same-sex sexual activity and review its anti-gay laws. But In 2016 after three Mzuzu based pastors Christopher Kammasamba, Reverend Patrick Banda and Pastor Tusalifye Mbeye argued that homosexuality is still illegal. In their initial case, the pastors claimed that Malawi’s director of public prosecutions and the nations police service did not have the authority to suspend existing law criminalizing same sexual conduct they argued that only the Malawi parliament has the mandate to change or suspend any law in the country. When announcing the order, Judge Dingiswayo Madise said the arrests [of gays] should continue until there is a judicial review of the government’s decision to stop the prosecutions of gay people in Malawi. Madise also issued a warning stating that anyone who fails to abide by the law would be prosecuted for contempt of court.52
The executive arm of government’s stand on minority rights specifically gay rights and the anti-gay laws as seen above in the past 7 years till date have shown a positive arm towards the review on anti-gay laws. This has been as a result of international donors pressure to
52 https://76crimes.com/tag/dingiswayo-madise/
38 Student no: 005-176 review the laws as they are contrary to the international standard of the protection of human rights therefore they withhold aid so as to pressure the existing government the Malawi country budget is dependent on international donors. By withholding or giving less than required funds to the budget the executive is also pressured by the people of the country because without enough budgetary funds that means some government institutions will not be funded and therefore there will be less supply of health like medication and things like fuel start missing this is as a cause of cutting/trimming down there budget. This was seen during the Joyce Banda presidency era where a moratorium was placed on the anti-gay laws because of fear of not receiving budgetary aid from international donors.
Pressure also comes from international human rights organisations like in 2010 when the then President Bingu wa Mutharika pardoned the two convicted felons who were found guilty under the anti-gay laws earlier that year. After that a moratorium was placed. The same has happened during the Peter Mutharika era as president where two men in the capital city Lilongwe were arrested for being suspected of committing crimes under the anti-gay laws and the suspects were taken for a medical examination and it was proved that the suspects had indeed committed the offence but after the news had gone to the public about the arrests the American ambassador to Malawi threatened to leave the country as she had observed that the Government is failing to respect and protect minority rights as to the international standards. The ambassador demanded the release of the suspects and that the charges be dropped against the suspects and this was done by the government who ordered the release of the suspects due to this pressure from the American ambassador causing commotion in the country.
After all this a moratorium has been placed again on the laws due to this pressure from international bodies and as long as these laws are not reviewed there will be continued pressure on the executive arms of government that are to come after this government.
With that being said above this shows that the executive arm of government is against anti- gay laws in Malawi dispite the pressures they receive because they keep suspending the anti- gay laws despite that they don’t have that power under law section 7 of the Constitution provides for its responsibilities as
“The executive shall be responsible for the initiation of policies and legislation and for the implementation of all laws which embody the express wishes of the people of Malawi and which promote the principles of this Constitution”
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Reverend Patrick Banda and Pastor Tusalifye Mbeye also argued that homosexuality is still illegal. In their initial case, the pastors claimed that Malawi’s director of public prosecutions and the nations police service did not have the authority to suspend existing law criminalizing same sexual conduct they argued that only the Malawi parliament has the mandate to change or suspend any law in the country. Also lawyer representing the three pastors George Kadzipatike argued that:-
“Our main arguments have been that the executive branch of government, the minister of justice, the director of public prosecution and Malawi police service do not have the mandate to change the position of any law in the country.”53
So this shows that the executive arm has no authority or power to suspend the laws the only power to suspend laws is given to the president only if there is a state of emergency as provided for under section 45 of the Constitution. So they had been acting ultra vires and not according to law like in July 2014 when the Justice Minister announced that Malawi would no longer arrest people for same-sex sexual activity and review its anti-gay laws.54
The other arm of the Government is the Judiciary, its stand on the anti-gay laws seems they are against it since it is there duty or responsibility to interpreting, protecting and enforcing the constitution and all laws, so its job is to find guilty where there is enough evidence to the commission of an offence as prescribed by law. The most influential case that the public community and international community had their eyes on was when in 2010 two men were arrested and charged with the offences under section 153 and 156 of the Penal Code.
The accused persons were found guilty of both charges against them and were sentenced to 14 years imprisonment as the maximum sentence. Non-governmental organisations on human rights and the international community had different views as to the decision of the court calling it unconstitutional as it interferes with the enjoyment of a minority right. This was made as a landmark case on anti-gay laws even though the accused were pardoned by the President just after few months after they were convicted. The case was of Republic v Steven Monjeza Soko and Tionge Chimblanga Kachepa.55
The second time after 2012 the court had to decide on a case to do with sections 153 and 156 specifically after government had ordered a moratorium on the anti-gay laws saying that no
53 ibid 54 ibid 55 Criminal Case Number 359 of 2009
40 Student no: 005-176 one should be arrested on the grounds of their sexuality or gender identity. Three pastors sought to challenge the government decision in Court arguing that the executive had no authority to make such an order through the Minister of Justice. On February 9 High Court Judge Dingiswayo Madise granted an injunction requested by the anti-gay pastors seeking an end to the government’s moratorium during court deliberations on the anti-homosexuality.56
Madise demanded responses from police; from Samuel Tembenu, the minister of justice and constitutional affairs; and from Malawi’s top prosecutor, Kachale, the director of public prosecution. He issued an oddly phrased order restraining police and Kachale “from continuing to cease arresting and prosecuting suspects of homosexual’s offense or offenses relating to carnal knowledge against the order of nature”.57
This is evidence that the Judiciary through the Courts is upholding the current law that criminalises homosexual acts and its carrying out its constitutional duty to Malawians in an impartial and independent manner so far.
The last arm of government is the legislature Legislative power belongs to the Parliament, which may delegate the power to make subordinate legislation to the executive or the judiciary. The Constitution provides that legislation must conform to the principles of the Constitution Malawi’s Parliament consists of a National Assembly and the President as Head of State. This is the arm of government given the responsibility of enacting laws or removing them, their powers are derived from the people of Malawi and not their own views and since 2010 when the debate on reviewing the anti-gay laws started the parliament has taken the views of the public because that’s the people they represent and the general public’s view is that the laws on gays shouldn’t change. As section 12 (1) of the Constitution provides:-
“the Constitution is founded upon the following principles- (a) all legal and political authority of the state derives from the people of Malawi and shall be exercised in accordance with this Constitution solely to serve and protect their interests; (b) all persons responsible for the exercise of powers of State do so on trust and shall only exercise such power to the extent of their lawful authority and in accordance with their responsibilities to the people of Malawi (c) the authority to exercise power of State is conditional upon the sustained trust of the people of Malawi and that trust can only be maintained through open, accountable and transparent Government and informed democratic choice.”
56 https://76crimes.com/tag/dingiswayo-madise/ 57 ibid
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This provision shows that all government’s powers are derived from the people and they only act on trust and therefore the legislature has been executing its duties efficiently and because they represent the majority voice of the Malawian people and the majority view of Malawians is against reviewing and removing the anti-gay laws.
Even though these three arms of government are to act separately and independent from each other that’s only in theory as provided for in the Constitution58 but in practical sense they work hand in hand btu it has been evident that there has been a conflict between the executive and judiciary on the issue of anti-gay laws whereby the executive is not following Court orders despite Judge Dingiswayo Madise said the arrests [of gays] should continue until there is a judicial review of the government’s decision to stop the prosecutions of gay people in Malawi. Madise also issued a warning stating that anyone who fails to abide by the law would be prosecuted for contempt of court.59 The executive is still persisting to not abide by court orders causing a conflict between the three arms and this is not the first time this has happened Issues raised concerning the effectiveness of the judiciary related to actions of the executive. The MHRC indicated to the IBAHRI delegation that they were concerned with some actions of the executive, especially with regard to interfering with judicial integrity, independence and effectiveness. Regarding judicial integrity, it is alleged that the executive – particularly then President wa Mutharika – undermined the judiciary by making public inflammatory statements indicating that the judiciary is subordinate to the executive. In addition, the actions of the executive in cases before the courts concern the MHRC. There have been allegations of continued interference.
MHRC, the MLS is meant to speak out on such issues; however they are limited in that they cannot lodge a complaint with the MHRC. There are no procedures in place for complaints and at present there is no mutual understanding between the MLS and the MHRC on a way forward on this. Instead, the MLS issues public statements regarding alleged misconduct by the executive.
The IBAHRI delegation found that court orders are generally adhered to. However, there was a noted lack of enforcement where judgments have been made against the executive. Individuals that the IBAHRI delegation met with estimated that the rate of compliance to
58 Section 7, 8 and 9 59 Annuls-governments-suspension-on-anti-gay-laws/3188056.html
42 Student no: 005-176 judgments ranged from about30 to 40 per cent.295 According to the MHRC, non-compliance of the executive is not limited only to court orders, but also to recommendations by the MHRC itself and decisions of the Ombudsman.
A senior lecturer of law at Chancellor College of Malawi regards the lack of compliance with court orders by the government as symptomatic of a lack of a ‘culture of continuous obedience of the law’. .He added that the government obeys the law mostly when it is convenient and that the government is often strategic about which orders to obey.60
The government also has commissions one of them is the National Aids Commission (NAC) which was established as a public trust in 2001 to provide overall leadership and coordination of the national response to HIV and AIDS. It responds to treating people infected with Aids and the prevention of the virus in any way possible, this includes helping those people already infected with the virus who are in prisoners but prisoners apart from sex workers are one of the people who are most at risk because prison conditions are often ideal breading grounds for onward transmission of HIV infection. They are frequently overcrowded. They commonly operate in an atmosphere of violence and fear. Tensions abound, including sexual tensions. Release from these tensions, and from the boredom of prison life, is often found in the consumption of drugs or in sex.61 Prison systems around the world including Malawi do not provide for condoms. Sexual activities are often forbidden in prisons, with some believing the provision of condoms condones such behaviour and potentially leads to an increase to such activities which are contrary to the Penal Code. While most sex in prisons is consensual, rape and sexual abuse is used to exercise dominance over other inmates. Roughly 25% of prisoners of prisoners suffer violence each yea, with 4% to 5% experience sexual violence and 1 % to 2% are raped. 62
A study was also conducted in rural prisons in Malawi. This study shows that 4.2% of male prison inmates from a rural district in Malawi had STIs and about one-third of these infections, were acquired within prison. Although the mobile clinic service are able to treat
60 Report of the International Bar Association’s Human Right Institute (IBAHRI) Funded by the Open Society Initiative for Southern Africa August 2012 61 www.avert.org/professionals/hiv-social-issues/key-affected-populations/prisoners 62 ibid
43 Student no: 005-176 these infections, the main limitation of the current strategy is that condoms cannot be made accessible to inmates.63
The National HIV prevalence in Malawi is estimated at 9%, (NACP, 1999) and Hiv infection rates among STI patients range from 53-83% (KRISTENSEN, 1990). The finding that GUDs constituted a considerable propotion of STIs in the study population is of particular concern as these facilitate the acquisition and transmission of HIV by acting as ports of entry (CLOTTEY & DALABETTA, 1993). Since over 605 of all inmates in this study were also married, there is also a direct risk of HIV transmission to spouses amd therefore to their newborn babies upon release. Not being able to provide access to condoms in such a setting constitutes a seriuos obstacle to preventing inmates from acquiring and transmitting STI and HIV infenction.64
Juveniles and destitute inmates are at particular risk of exchanging sexual favours with adult prisoners for food, warm clothing, or for protection (situational homosexuality). This situation is made worse by overcrowding, and dwindling prison resources in our setting. Several recommendations have been made as a part of a wider strategy to address the root causes of this activity and the associated risks for HIV transmission (JOLOFANI & DEGABRIELE, 1999). 65
The issue of providing access to condoms within prisons is a legal one that challenges established social norms and that lies beyond the jurisdiction of prison authorities. The way forward lies not in making pedantic recommendations that challenge basic societal values, but in dialogue with authorities that will lead to cooperation. What is needed now is a pragmatic approach to bridge the current discrepancy between the reality of prison life and prison regulations which are dictated by existing laws.
Prostitution is also illegal in alawi but prostitutes and their clients are now encouraged to use condoms, the national policy is to distribute condoms. The intention Is not to encourage prostitution , but rather to prevent the spread of HIV.66
63 MEDICINE SANS FRONTIERES FIELD RESEARCH, Sexually transmitted infections among prison inmates in rural district of Malawi. http://hdl.handle.net/10144/18254 64 ibid 65 ibid 66 ibid
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The Untited Nations in 1989 affirmed that prisoners should have access to preventive and curative health services without discrimination on the grounds of their legal situation. 67 This shows that the anti-gay laws are a challenge to the fight against the wide pread of the HIV Aids virus in Malawi as these laws mainly sections 153 and 156 play a role in the reasons why condoms are not made available to inmates in prisons. In this case it is also hindeling to the right to life b under section 16 because the virus is a deadly diesease, right to equality and the right to access of good health care services as everyone disite them being prisoners they still have rights.
4.5 ANTI-LGBT LAWS IN OTHER COMMON LAW JURISDICTIONS.
4.5.1 Introduction The history of criminalising same sex or sexual impropriety dates back to the introduction of Ecclesiastical Courts in the 17th centuary also known as church courts throughout Europe which were overseen by religious authorities to deal with religious matters such as sexual impropriety to not attending church and covering all moral matters earning their nickname the “bawdy courts”.
The Buggery Act of 1533, passed by the Parliament during the reign of King Henry VII, marked the beginning of targeted persecution by law of male homosexuality in the UK, completely outlawing sodomy in Britain and by extension what would become the entire British Empire and convictions were punishable by death. It was not until 1861 with the passing of the Offences against the Person Act, that the death penalty was abolished for acts of sodomy instead being made punishable by a minimum of 10 years imprisonment.
The Criminal Law Amendment Act 1885 however, went a step further once again, making any male homosexual act illegal whether or not a witness was present meaning that even act committed in private could be prosecuted. Often a letter expressing terms of affection between two men was all that was required to bring a prosecution. The legislation was so ambiguously worded that it became known as the “Blackmailer’s Charter”, and in 1895, Oscar Wilde fell victim.68
67 ibid 68 www.bl.uk/lgbtq-histories/articles/a-short-history-of-lgbt-rights-in-the-uk
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From 1860 onwards the empire spread a specific set of legal codes and common law throughout its colonies, among them laws proscribing male-to-male sexual relations. The British Empire drafted these penal codes with a moral, religious mission in mind. The intention was to protect local Christians from corruption and correct and Christian native custom for example are the criminal codes of India and Queensland, Zambia, Malawi etc.69
The majority of the countries of the Commonwealth of Nations, formerly known as the British Commonwealth, still criminalise sexual acts between consenting adults of the same sex and other forms of sexual orientation, gender identity and expression. Homosexual activity remains a criminal offence in 34 of the 54 sovereign states of the Commonwealth; and legal in only 19.70
This has been described as being the result of the major historical influence or legacy of the British Empire. In most cases, it was former colonial administrators that established anti-gay legislation or sodomy acts during the 19th century and even earlier. The majority of countries have retained these laws following independence. Due to the common origin of historical penal codes in many former British colonies, the prohibition of homosexual acts, specifically anal sex between men, is provided for in Section 377 in the penal codes of 42 former British colonies, many of whom are today members of the Commonwealth.71
For reference we look at India, where the British criminalized sexuall activities “against the order of nature”, including homosexual sexual activities, under Section 377 of the Indian Penal Code, which entered into force in 1861 due to the Christian religious beliefs of the British colonial governments.72
Homosexual intercourse was a criminal offence from the introduction of section 377 of the Indian Penal Code in 1860 until the Delhi High Courts 2009 decision in Naz Foundation v. Govt. of NCT of Delhi. 73 After the Delhi courts ruling was overturned in 2013, homosexual intercourse was re-criminalized until the Supreme Court of Indias 2018 ruling in Navtej Singh Johar v. Union of India which invalidated part of Section 377 of the Indian Penal Code making homosexuality legal in India. In striking down the colonial-era law that made gay
69 Theconversation-com.cdn.ampproject.org/v/s/theconversation.com accesed on 05/06/2020 at 23:30 70 ibid 71 ibid 72 ibid 73 “where is it illegal to be gay?”. BBC News. 10 February 2014.
46 Student no: 005-176 sex punishable by up to 10 years in prison, one judge said the landmark decision would “pave the way for a better future.74
As for South Africa, one can argue that opposition towards homosexuality in South Africa stems from religious tradition ever since colonization, Christianity has played a role in shaping South African society. Christian based education began during the 1730s with arrival of German missionaries, and ended in 1953 when the Bantu education system was introduced (Thompson 1990). 75
British missionary schools were the primary source of education for Africans and through these schools, Christianity and its message of sexual purity were able to spread . Missionaries had a cultural impact as well, through their alteration of norms and people’s perception towards sexuality and the shaping of morality Sanders, (1997). Therefore, missionaries were able to dictate to their followers what should be considered moral. Most denominations of Christianity rejected homosexuality since it was deemed in the Bible to be unnatural and a sin: “Leviticus 18:22 do not lie with a man as one lies with a woman.”76
Under South Africa’s ruling National Party from 1948 till 1994, homosexuality was considered as a crime punishable by up to seven years in prison; this law was used to harass and outlaw South African gay community events and political activists. From the 1960s to the late 1980s, the South African Defence Force forced white gay and lesbian soldiers to undergo various medical “cures” for their sexual orientation, including sex reassignment surgery. The treatment of gay and lesbian soldiers in the South African military was explored in a 2003 documentary film, titled Property of the State.77
The release of Nelson Mandela on February 2, 1990 and the unbanning of the ANC, UDF, and other organizations, LGBT movements such as GLOW and OLGA were able to engage in political discussions, which would include sexual freedom as a fundamental human right in the new Constitution made discrimination based on sexual orientation illegal, which makes South Africa’s Constitution one of the most progressive in the world in terms of personal
74 http://www.asianage.com/india/bjp-supports-tn-leader-book-lgbt-157 75 www.sahistory.org.za/article/history-lgbt-legislation 76 ibid 77 “The GULLY-Africa-ApartheidMilitaryForcedGayTroopsintoSex-ChangeOperations” Retrieved 26 January 2017
47 Student no: 005-176 freedoms. The Constitution states that: No person shall be unfairly discriminated…colour, sexual orientation…’(Sanders, 1997: 105).78
The 1998 Employment Equity Act 55 1998 ensured that employers could not discriminate employees based on sexual orientation. On December 1, 2006 the South African government passed the Union Bill, which legalized same-sex-marriage, making South Africa the first African country to do so. This made homosexual couples to achieve parity with heterosexual couples for first time.79
4.5.2 Botswana Homosexuality had been illegal in Botswana since the late 1800s, or instance, when the territory was ruled by Britain and called Bechuanaland. Section 164 of the country’s penal code banned ”unnatural” acts that it defined as “carnal knowledge against the order of nature,” and it made such offenses punishable by up to seven years in prison.80
The attitude of the Botswana Courts of Appeal to same sex relationships was conservative in nature when compared to South Africa Constitutional Court. This admittedly was due to the fact that, whilst the South African Constitution expressly prohibited such discrimination, the Botswana Constitution did not.81
On June 11 2019 in a landmark case in the Botswana High Court where it ruled that decades- old laws criminalising same-sex relations are unconstitutional and should be scrapped off in a unanimous ruling. The Botswana High Court has been at the forefront of LGBT rights in the country. In 2016 it ordered the Government to register Botswana’s main LGBT organisation, LEGABIBO, and in 2017 it ruled that transgender people have a constitutional right to change their legal gender, finally in 2019 is when it struck down colonial-era laws banning homosexuality, and ruled that sex as defined in section 3 of the Botswana Constitution, should be “generously and purposively interpreted to include sexual orientation. Employment discrimination on the basis of sexual orientation has been banned since 2010 in Botswana, making it one of the few African countries to have such protections for LGBT people.82
78 ibid 79 Ibid 80 www.hrw.org/report/2008/12/17/alien-legacy/origins-sodomy-law. 81 ibid 82 ibid
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4.5.3 Conclusion It is evident that majority of Penal Code laws that prohibit same sex relations or “unnatural offences” in many countries that are still operational and still in power are still using the same colonial laws imposed on these countries during colonisation by other countries and adopted into their laws after independence without thorough consultation on the genesis of such laws.83
This law was a colonial attempt to set standards of behaviour, both to reform the colonized and to protect the colonized and to protect the colonizers against moral lapses. It is a “sodomy law” intergrated into a penal code-and it became a model anti-sodomy law for countries beyond India, South Africa, Botswana, and Malawi.
Colonial legislators and jurists introduced such laws, with no debates or “cultural consultations, to support colonial control. They believed laws could inculcate European morality into resistant masses. They brought in the legislation, in fact, because they thought “native” cultures did not punish “perverse” sex enough. The colonized needed compulsory re-education in sexual morals.
Further it is self-evident in all African countries that criminalise same sex relations were based on religion inherited by their colonizers and missionaries which was monopolised by Christianity in majority of what is today Southern Africa. This traces to an old strain in Christian theology that held sexual pleasure itself to be contaminating, tolerable only to the degree that it furthered reproduction(specifically of Christians). The urgency British authorities later showed in transplanting “sodomy” laws into colonial contexts-even before they fully codified at home may reflect the legal category’s origins. Hence in Malawi Penal Code the offence is found under the Chapter relating to RELIGIOUS OFFENCES.
Therefore for common law countries that abolished or repealed colonial laws that criminalises the equal existence of LGBT people and same sex relations using Colonial Penal Laws based on the fact that the law was enacted to oppress and discriminate against a group of people using Christian customs foreign to Africa that does not represent the independent democratic ever changing world.84
83 ibid 84 ibid
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4.6 ANTI-LGBT LAWS IN RELATION TO HUMAN RIGHTS
4.6.1 INTRODUCTION
Defining anti-gay laws in relation to the human rights issue is a critical step considering the impact of human rights in the modern day society. These laws have been viewed as a clear denial of human rights, openly discriminating, prosecuting and punishing in the name of justice. Human rights are rights inherent to all human beings. We are all entitled to our human rights as human beings without discrimination whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status, such as age disability, health status, sexual orientation or gender identity.
The laws that criminalise same sex laws inherently violate constitutional provisions of non- discrimination, and privacy. The right to equality and non-discrimination are core principles of human rights enshrined in the United Nations Charter, The Universal Declaration of Human Rights (UDHR), The Constitution of Malawi and other treaties.
The equality and non-discrimination guarantee provided by international human rights law applies to all people, regardless of sex, sexual orientation and gender identity or “other status”. There is no fine print, no hidden exemption clause, in any of our human rights treaties that might allow a State to guarantee full rights to some and withhold them from others purely on the basis of sexual orientation and gender identity.85
Moreover United Nations human rights treaty bodies have confirmed that sexual orientation and gender identity are included among prohibited grounds of discrimination under international human rights law. This means that it is unlawful to make any distinction of
85 International Human Rights Law and Sexual Orientation and Gender Identity Fact sheet.
50 Student no: 005-176 people’s rights based on the fact that they are lesbian, gay, bisexual or transgender (LGBT), just as it is unlawful to do so based on skin colour, race, sex, religion or any other status.86
This position has been confirmed repeatedly in decisions and general guidance issued by several treaty bodies, such as the United Nations Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Committee on the Rights of the Child, the Committee against Torture and the Committee on the Elimination of Discrimination against Women.87
Further under the Constitution of Malawi it guarantees the promotion, protection and enforcement of human rights, even though this is enshrined under chapter 4 of this said Constitution. Enshrined in the Constitution of Malawi is the Bill of rights which includes the prohibition of any form of discrimination under section 20 of the Constitution contrary to which would and is a direct violation of the constitution’s strong language about the “inherent dignity and worth of each human being” and “the rights and views of all individuals,” and that it was incompatible with the International Covenant on Civil and Political Rights, of which Malawi is a signatory of88.
Section 211 of the Constitution provides:
“(1) Any international agreement entered into after the commencement of this Constitution shall form part of the law of the Republic unless otherwise provided by an Act of Parliament.
(2) Binding International Agreements entered into before the commencement of this Constitution shall continue to bind the Republic unless otherwise provided by an Act of Parliament.
(3) Customary international law, unless inconsistent with this Constitution or an Act of Parliament, shall form part of the law of the Republic.”
Malawi ratified the International Covenant on Civil and Political Rights (ICCPR) on 22 December 199 and the African Charter on Human and Peoples Rights (ACHPR) on 17 November 1989. Nyirenda J (as he then was) in the matter of David Banda (a male infant).
86 ibid 87 ibid 88 ibid
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Malawi has chosen to be bound by the international treaties it ratified. The judge went to say:89
“In other words, Malawi has consciously and decidedly undertaken the obligations dictated by these Conventions. It is therefore our solemn duty to comply with the provisions of the Conventions.” This is the case because the Court has to pay attention to the time when international agreement was entered into vis a vis the commencement of the Constitution and what an act of parliament may provide with respect thereto.90
4.6.2 The Right to Dignity Section 12(1)(d) of the Constitution provides that “the inherent dignity and worth of each human being requires that the State and all persons shall recognize and protect human rights and afford the fullest protection to the rights and views of all individuals, groups and minorities whether or not they are entitled to vote. According to section 19(1) of the Constitution, this right is inviolable
Recognising a right to dignity is an acknowledgement of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern. This right therefore is the foundation of many of the other rights91
Article 5 of the African Charter on Human and Peoples Rights, provides:
“Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degrading.
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. The first article of the Universal Declaration of Human Rights, a milestone document that set out in 1948 for the first time fundamental human rights to be universally protected, reminds us of one simple truth, that we all belong to the human family and to be treated as such.92
Justice John Paul Stevens cited the dignity of LGBT people as the basis of his dessent from Bowers v. Hardwick,93 in which the Court upheld a Georgia “anti-sodomy” law. Arguing that
89Gwanda v S(Constitutional Cause No. 5 of 2015) [2017] MWHC 23 (10 January 2017) 90 ibid 91 ibid 92 www.theglobalfund.org/en/blog/2014-05-16-protecting-the-dignity-and-human-rights-0f-lgbt-people/ 93 478 U.S. 186 (1986)
52 Student no: 005-176 peoples “intimate choices” are protected by the right to liberty, Justice Stevens referred to an individual’s right to decide how he or she will live his or her own life.” According to Justice Stevens, federal judges responsibility to protect such rights grows out of “our tradition of respect for the dignity of individual choice in matters of conscience.”
4.6.3 The Right to Privacy The concern towards anti-LGBT law’s is a concern to do with human rights and one of freedom of privacy. The privacy of an individual which is to be respected, and an unjustifiable invasion of one’s privacy is a gross violation of human rights which should not be tolerated under a democratic state.
In Lawrence v. Texas94 Is one of the most prolific cases in which the Court extended the right to privacy to “persons of the same sex [who choose to] engage in…sexual conduct.” The Court Held: “The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under Due Process Clause gives them the full right to engage in their conduct without intervention of the government.95
4.6.4 The Right to Equality: The right to equality and non-discrimination are core principles of human rights, and in the opening words of the Universal Declaration of Human Rights (UDHR) are unequivocal; “All human beings are born free and equal in dignity and rights.”
Neither “equality” nor “discrimination” is defined by the Constitution of Malawi. The United Nations Human Rights Committee (HRC), in its General Comment No. 18 entitled “Non- Discrimination”, defined discrimination as:96
Any distinction, exclusion or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing of all freedoms and rights.
94 2003 95 www.law.cornell.edu/wex/privacy 96 Kenyatta Nyirenda J An Analysis of Malawi’s Constitution and Case Law On The Right to Equality-Paper Presented at The Judicial Colloquium On The Rights of Vulneralbe Groups, on 6 to 7 March 2014.
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Equality before the law does not necessarily mean “same treatment”. Discrimination can arise just as readily from an act that treats as equals those who are different, as it can from an act that treats differently persons whose circumstances are not materially different. Further to this not every distinction in treatment will amount to discrimination.97
Discrimination in any form is prohibited by Section 20(1) of the Constitution of Malawi. The section provides that all persons are, under any law, guaranteed equal and effective protection against discrimination on various grounds. This section should be read with section 41(1) of the Constitution which provides that every person shall have the right to recognition as a person before the law. Article 398 also provides that every individual shall be equal before the law and shall be entitled to equal protection of the law.99
In Somanje and Others100
Ndovi J. (as he then was) observed that the right to equality under the law is an absolute right and it cannot be limited or restricted in terms of section 44(2) of the Malawi Constitution.
It has been said that it is not every distinction or differentiation in treatment at law which will violate the equality guarantee. In order to govern effectively, legislatures must treat different individuals and groups in different ways. To achieve true equality, it will frequently be necessary to make distinctions.101
In Andrew v Law Society of British Columbia102 the Court held:
The principle of equality of individuals under law does not require mere formal or mathematical equality, but a substantial and genuine equality in fact. This is what section 2949(2) strives to achieve and, therefore, could not be said to flout any provision of the Constitution.
97 ibid 98 African Charter on Human and Peoples’ Rights 99 Gwanda v S(Constitutional Cause No. 5 of 2015) [2017] MWHC 23 (10 January 2017) 100 [1999] MLR 400 (HC) 101 Kenyatta Nyirenda J An Analysis of Malawi’s Constitution and Case Law On The Right to Equality-Paper Presented at The Judicial Colloquium On The Rights of Vulneralbe Groups, on 6 to 7 March 2014.
102 (1989) 2 WWR 289
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4.6.5 Freedom Conscience
This infers the right to follow one’s own beliefs in matters of religion and morality. Section 33 of the Constitution of Malawi protects and guarantees freedom of conscience to all its citizens.
As written by Thomas Jefferson’s letter to the Danbury Baptist Association in 1802 In his letter referring to the First Amendment to the United States Constitution;
“believing with you that religion is a matter which lies solely between Man and his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
4.6.6 CONCLUSION
Human rights (equality, privacy and human dignity) in Malawi suggest that the judiciary is adequately empowered to uphold the supremacy of the Constitution, to enforce respect for human rights and to declare null and void legislation and other governmental actions that are contrary to the protection of human rights guaranteed under the Constitution and International Human Rights treaties that Malawi are a signatory to.
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4.7 THE RELIGIOUS COMMUNITY’S STAND AND OPINION ON ANTI- LGBT LAWS IN MALAWI.
4.7.1 INTRODUCTION
Malawi’s attitude to anti-homosexuality is deeply embedded in its society, and is attributable to the nation’s culture, religion and colonial history under British rule. Although Britain repealed its homosexuality laws in 1967, Malawi’s sodomy laws remained in force under its Penal Code despite being dormant in the decades that followed independence in 1964.103
With regards to religion, Malawi is considered by many to be a “God-fearing nation”. The pervasive presence of the dominant religion of Christianity and, to a lesser extent, the Islamic faith has also contributed to anti-homosexuality in Malawi. Using sources such as the Old Testament, many church leaders teach their congregations that same sex activity is a sin and even satanic. Evangelical churches also promote a family model based on monogamy, marital fidelity, and respect for women and the nuclear family.104
It is evident that religious views inform political discourse in Malawi. Religious groups make up a powerful lobby group on matters of sexuality and morality, and exert considerable influence in the shaping of policy and legislation. Despite Malawi’s conservative past, in the mid-2000s, there began to be some signs of respectiveness to the idea that the LGBT community needed to be accepted and integrated in a more comprenhensive strategy to combat the HIV/AIDS crisis. In 2006, three years before Soko and Kachepa, Dr Mary Shawa, principal secretary for HIV/AIDS in the Cabinet Office, stated on record that accepting the LGBT community was vital step in the HIV/AIDS campaign.
As in most of Africa, there is a widely held view in Malawi that homosexuality is alien to its culture, traditions and religious values. In light of the myriad historical and social factors militating against acceptance of LGBT rights in Malawi, many Malawians have adopted the view that homosexuality is a western concept fostered by the decadence of the western secular state. The “unAfrcaness” of homosexuality is used to portray such practices as being a product of western influences that constitutes a “neo colonial menace”.105
103 www.cambridge.org/core/journals/journal-of-african-law/article/lgbt-rights-in-malawi-one-step-step-back- two-steps-forward-the-case-of-r-v-steven-monjeza-soko-and-tiwonge-chimbalanga-kachepa 104 ibid 105 ibid
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The religious community in Malawi have played a huge role in the political life of Malawi since independence. Even during the changing of the party system in Malawi from one party system to the democratic multi-party system the church played a huge role by issuing a pastoral letter to the then life president Dr Hastings Kamuzu Banda, calling for a referendum and it proved to be the changing point in Malawi’s politics and ever since then the religious community has played roles in political state issues.
The same was also done during the time when the then president late Bingu wa Mutharika was president and the people of Malawi had asked the president to step down from his position as president due to his incapacity to run the country the church also issued a pastoral letter giving the president a number of days in which to step down unfortunately the president passed away before the set day of which the church had requested the president to do so due to the out-cry of the Malawian people.
But in this research we view the churches opinion to the Government’s efforts to remove the anti-gay laws from the laws of Malawi due to international and non-governmental pressure. Since the debate arose in Malawi on anti-gay rights in 2010 the church has had the opinion against legalising same sex relationships in Malawi and as a result removing the anti-gay laws in the penal code. They believe it’s unholy to their beliefs and religions for a man to marry a man or a woman to marry a woman and to have sexual relations between the two groups as they see it as sinful acts against God.
As it was commented by the Justice ministry in 2012 after Justice Minister Ralph Kasambara was widely quoted to having said that the Government would suspend arrests pending a decision on whether to repeal the laws banning homosexuality. Justice ministry sources told Reuters pressure from the Malawi Council of Churches, a group of 24 influential protestant churches, and the Law Society had forced the U-turn. “Our stance has always been that this practice should be criminalized because it runs contrary to our Christian values” this was said by the Secretary General, of the Council of Churches, Reverend Osborne Joda-Mbewe.
This is not the only statement said by religious leaders referring the offence as a sin and offending our “CHRISTIAN” values forgetting that Malawi is not a Christian Nation but rather a secular country that is democratic and has the right to conscience and freedom of religion rather than the misconception by the churches by generalising their beliefs to everyone in Malawi and whether it is a sin it is to their exercise of their belief and whether a person who has a contrary belief to their beliefs but does not cause any harm to them is also a
57 Student no: 005-176 sinner and should be punished by state laws as a criminal offence and worth a maximum punishment of 14 years which is already contrary to section 33 of the Constitution and also contrary to section 5 of the constitution as any law that is contrary to the laws in the Constitution are invalid and void 106
This was also raised in 2016 this year where in Lilongwe – the Church of Central Africa Presbyterian (CCAP) In Malawi has reportedly warned its members against accepting laws allowing homosexuality and abortion. A pastoral latter by the church also urged the Malawian government not to legalise what it termed “a sin” urging it members to speak out against homosexuality and abortion. The CCAP advised its members to pray against the legislation of laws that would allow sin such as same-sex marriage and abortion saying “God’s” wrath comes because of such ills in society.107
Further The former Malawi President Peter Muntharika was urged by the same CCAP Livingstonia Synod Moderator Douglas Chipofya to be bold like Kenya’s President Uhuru Kenyatta, who flatly rejected Barack Obama’s calls for gay rights, during Obama’s visit to the country. The CCAP Livingstonia Synod spiritual father termed homosexuality as “Pure Evil” and “animal-like behaviour”. Chipofya was asked to offer an opening prayer at the annual Ngoni event, but took advantage of his time on the podium to appeal against same-sex marriages. He asked the President who was in attendance to firmly stand against “alien cultural influences”.108
The Pink News reported on 18 March 2016 about Malawi Catholic bishops’ views on homosexuality:
‘Catholic bishops in Malawi have attacked the government for placing a moratorium on “harmful” homosexual laws. In a letter to parishioners, the bishops condemned homosexuality and the governments’ actions. They said that although the homosexual “condition is disordered but not sinful in itself”, if a person was to act on their feelings and have sex or a relationship, “these are objectively evil and totally unacceptable”.
Mamba online (a South African gay news site) reported on 8 December 2016:
‘Christian leaders have led hundreds of people in marches to demonstrate against legalising homosexuality and abortion in Malawi. Under the banner of the Citizen March for life and
106 24.com/news24/Africa/News/Malawi-shouldn’t-legalise-sin-of-homosexuality-catholic-church-20160126 107 ibid 108 Country Policy and Information Note Malawi: Sexual Orientation and Gender Identity February 2017
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Family, the events were held in a number of cities across the country on Tuesday 8th December 2016.109
‘The marches were organised by the Episcopal Conference of Malawi (ECM) and the Evangelical Association of Malawi (EAM). The Times and the Nyasa Times reported that the protests attracted people from various denominations, including priests from the Catholic Church and Rastafarians, as well as a number of politicians. Marchers held up signs proclaiming, “Homosexuality is an abomination B4 God” and “Man + Woman = Marriage,” and a host of anti-abortion messages…..
Likewise the Human Dignity Report110 Dr Salmin Omar Idruss, Secretary-General of the Muslim Association of Malawi, called for the death penalty to be introduced and said;
“Even animals like goats don’t do this, what more with human beings like us who were blessed with wisdom by the Almighty God? The offenders need to be handed the death penalty as a way of making sure that the issue is curbed”
However in response to the comments made by Dr Idruss, the Nyasa Times reported:
‘Malawi’s Justice and Constitutional Affairs Minister, Fahad Assani, trashed the calls by the Muslim Association of Malawi (MAM) to toughen the punishment for homosexual acts to include death penalty.
‘MAM general secretary Sheik Salmim Omar Idruss said those convicted of homosexual acts should face a death penalty and not 14 years jail as the law states now.
Idruss argued that capital punishment was the only way to rid society of homosexuality. However, Assani said pushing such a law there will be an international outcry, which could see some countries suspended aid to the country. Speaking in a telephone interview with Nyasa Time, Assani said Malawi is a democratic country and cannot promote homophobia and impose the death penalty on gays.111
The issue of anti-gay rights is not one to deal with whether it a sin or not but one of a constitutional right. So just because the church’s strongly view it as a sin but in the laws of 109 ibid 110 On 18 February 2014 111 Country Policy and Information Note Malawi: Sexual Orientation and Gender Identity February 2017
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Malawi as per the Constitution it is as of right so as the constitution is the supreme law of the land therefore human rights laws are superior to other laws even the Penal Code they are therefore unconstitutional even if a particular religious group may hold it as sinful that is there opinion as long as they are not being harmed in any way or being hurt in any way by the exercise of other people’s rights.
4.8 THE GENERAL PUBLICS OPINIONS ON REMOVING THE ANTI-GAY LAWS IN MALAWI.
As of section 12 of the Constitution the Government acts on behalf of the people of Malawi on trust and to protect their interests so any decision that is I the interest of the people of Malawi has to be consulted to the people of Malawi like in 1992 when a pastoral letter was issued when they had to hold a referendum on whether to remove the one part system of the MCP and bring in a multi-party system of governing the country.
Much of the population in Malawi is made up of Christians and muslims making it obvious that the Malawi population views gay rights as a sin and therefore to be criminalised as the laws already provide for. This has been seen by the public’s violent acts towards the minority group and statements of violence against this minority group has been made against like the controversial case against Ken Msonda, Peoples Party Spokesperson, an charges of inciting violence against homosexuals after having made a statement on facebook by posting that “the best way to deal with this problem is KILL them” this has been seen as a violent statement by some human rights groups in Malawi who have brought a case against him in Court which was discontinued by the Chief Public Prosecutor Kachale.
In Malawi, LGBT people face routine violence and discrimination in almost all aspects of their daily lives. Police often physically assault, arbitrarily arrest and detain them, sometimes without due process or a legal basis, at other times as punishment for simply exercising basic rights, including seeking treatment in health institutions. Several transgender individuals told Human Rights Watch that the combination of criminalization of adult consensual same sex conduct and social stigma has had an insidious effect on their individual self-expression, forcing them to adopt self-censoring behaviour because any suspicion of non-conformity may lead to violence by the general public or arrest by the police. Several gay men in the capital
60 Student no: 005-176 city, Lilongwe, married women because of the nation’s anti-homosexuality laws, to conform to society’s expectations, and void suspicion and arrest.112
Furthermore the Human Rights Watch through a research indicated that the 2016 High Court order suspended the moratorium placed by the Ministry of Justice and Constitutional Affairs in 2012 only further served to encourage private individuals to attack and assault LGBT people with impunity while health providers persist to discriminate against them on the grounds of sexual orientation this was exacerbated by the lack of clarity and divergent opinions regarding the legality of the moratorium on arrests and prosecutions for consensual homosexual acts.
Criminalization has also contributed to a climate of impunity for crimes committed against LGBT people by members of the public, in one of the cases documented in the report police refused to open a case when a transgender man reported a burglary at a police station, instead, police threatened to arrest him on homosexuality charges. He was detained for several hours and only released after paying a bribe. Many other LGBT people told Human Rights Watch that they were afraid to report crimes to the police.
The Human Dignity Report updated on October 2015 noted some homophobic statements by public figures. For instance, on 2 May 2014, the report noted Leader of the Malawi Congress Party and current President of the Republic of Malawi Dr Lazarus Chakwera made a link between homosexuality and child abuse, claiming that homosexuality is a form of ‘child exploitation.
This is enough evidence that the general public is against the view of legalising the anti-gay laws in Malawi as suggested by some human rights groups and international donors.
112 www.hrw.org/report/2018/10/26/let-posterity-judge/violence-and-discrimination-against-lgbt-people- malawi
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Chapter 5
CONCLUSION AND RECOMMENDATIONS.
5.1 Conclusion This research has effectively and exclusively considered the laws that qualify a person as indecent and to have acted against or contrary to the order of nature (unnatural) and how they qualify as an offence and the punishments which are set for those who commit the offences contrary to sections 153 and 156 of the Penal Code.
It was during the research that it was found that these laws are contrary to some provisions in the Constitution basing on human rights. The research has discovered that the practice of the so called offence is Constitutional as it is minority right since it is not supported by the majority of the population in Malawi.
It was observed in the research that these two laws are archaic and were framed in a time that the country was not a democratic but was under the rule of the Europeans who based there laws from their religious beliefs. And it was also shown in the research that many of the archaic anti-gay laws were framed back in the time when people had no rights, as so that means they had no minority rights as a result when the anti-gay laws are being applied to the modern society which possess humans who have human rights, they as a result of such end up violating those rights they were bound to enforce protect and respect in the Constitution.
Lastly it has been shown in the research that the law enforcers have been acting unconstitutional by convicting people under these anti-gay laws as they are unconstitutional therefore invalid.
5.2 Recommendations
The research recommends that the sections 153 and 156 which criminalises persons who have the right to act in such a manner without question should be repealed considering the fact that Malawi is a developing country and is a democratic country as well and not a Christian
62 Student no: 005-176 country as believed by many in Malawi but it is a secular country therefore it should be treated as such as the voice of the minority should also be heard as we are now living I a democratic society where everyone’s views are heard and where everyone’s rights are respected and protected by the Government.
The research also recommends that the sections in the Penal Code specifically sections should be reviewed in the High Court since they are a constitutional matter. Since they base their argument on the constitutionality of the provisions and how they are inconsistent to some provisions in the Constitution under chapter 4.
The research further recommends that section 20 of the Constitution to be further and clearly interpreted by the Judiciary as is their duty under section 9 through the Courts as to whether the section also protects all minority groups including homosexuals from discrimination.
Lastly the research recommends that if found that the provisions are Constitutional that there should be a law that criminalises any act of violence against all minority groups.
BIBLIOGRAPHY
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Statutes
1. The 1994 Constitution of Malawi 2. The Penal Code
Websites
1. 24.com/news24/Africa/News/Malawi-shouldn’t-legalise-sin-of-homosexuality-catholic-church- 20160126 accessed on 15/08/2016 00:22 2. https://76crimes.com/tag/dingiswayo-madise/ accessed on 12/08/16 14:00 3. www.avert.org/professionals/hiv-social-issues/key-affected-populations/prisoners accessed on 14/08/16 01:02 4. Sixthformlaw.info/01_modules/other_material/law_and_morality/08_hart_devlin.htm accessed on 26/07/16 13:00
Cases
1. Republic v Steven Monjeza Soko and Tionge Chimblanga Kachepa. Criminal Case Number 359 of 2009
2. Lawrence v. Texas 120 S. Ct. 2472 (2003)
3. Andrew v Law Society of British Columbia (1989) 2 WWR 289
4. Bowers v. Hardwick 478 US. 186 (1986)
5. Somanje and Others [1999] MLR 400 (HC)
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