131st Session

March 2021

We write to you ahead of the United Nations Human Rights Committee’s upcoming review of the Republic of Malawi to highlight key areas of concern in relation to sexual orientation and gender identity that Human Rights Watch hopes will inform this aspect of the Committee’s consideration of the government of Malawi’s compliance with the International Covenant on Civil and Political Rights.

This submission covers the lack of progress made on key concerns related to sexual orientation highlighted by the Committee during its last review of Malawi in 2014, including criminalisation of consensual adult same-sex sexual conduct, violence against lesbian, gay, bisexual and transgender persons, stigma and discrimination in access to health care services and responsibilities of the Malawi Human Rights Commission.

In 2018, Human Rights Watch documented the impact of Malawi’s Penal Code criminalising consensual same-sex relations and found that the punitive legal environment combined with social stigma allows police abuse to go unchecked and prevents many lesbian, gay, bisexual, and transgender (LGBT) people from reporting violence or accessing health care services.

Chapter XV of Malawi’s Penal Code, on “Offences Against Morality,” contains several provisions that criminalize adult consensual same-sex conduct. Section 153 provides that any person found guilty of committing an “unnatural offence /offence against the order of nature” is liable to 14 years in prison, with or without corporal punishment. Section 154 punishes attempted unnatural offences with seven years’ imprisonment, and section 156 punishes “gross indecency” between males with five years in prison, with or without corporal punishment. While these laws date back to British colonialism, former president Bingu wa Mutharika’s government enacted a new anti-homosexuality law in January 2011, amending the Penal Code to extend the crime of “gross indecency” to women. Section 137A provides that any female person who, whether in public or private, commits “any act of gross indecency with another female” shall be guilty of an offence and liable to a prison term of five years.

Lesbian, gay, bisexual and transgender (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 interviewed by Human Rights Watch said 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 or arrest.

The challenges facing LGBT people in Malawi have been further exacerbated by the lack of clarity and divergent opinions regarding the legality of a moratorium on arrests and prosecutions for consensual same-sex conduct acts, issued in 2012 by justice minister, Samuel Tembenu. In December 2015, the minister reaffirmed the moratorium but in 2016, Christian religious leaders were successful in getting the Mzuzu High Court to issue an order suspending the moratorium pending judicial review by the Constitutional Court.

This uncertainty encourages private individuals to attack LGBT people with impunity, while health providers frequently discriminate against them on the grounds of sexual orientation. Many interviewees, particularly gay men and transgender women, told Human Rights Watch that the lack of certainty about the moratorium on arrests and prosecutions, combined with routine discrimination and stigma in health care settings, creates barriers to seeking HIV services and treatment.

A constitutional review of section 153(a) of the Penal Code (referenced above), initiated in September 2013 before the High Court in Lilongwe, is still delayed on procedural grounds over seven years later, but remains a potential a path to decriminalizing consensual same-sex conduct in the country. And in 2017, thanks to pressure from some of the nation’s human rights groups, the Malawi’s Human Rights Commission relented from saying it would conduct a public inquiry “to inform the national position on the controversial issue of LGBTI,” to instead conducting a study on the rights of LGBT and intersex people in Malawi. The status of that study is unknown to Human Rights Watch.

Criminalization of adult consensual same sex conduct means that in practice police violate the rights of LGBT people with impunity, with transgender people—who draw the attention of police officers because of their gender non-conformity - apparently bearing the brunt of the violations. Criminalization also contributes to a climate of impunity for crimes committed against LGBT people by members of the public. In one of the cases documented by Human Rights Watch, police refused to open a case when a transgender man reported a burglary at a police station, instead, they 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.

Malawi’s anti-homosexuality laws contravene several regional and international human rights treaties. The laws violate the right to non-discrimination, the right to equality before the law and equal protection of the law, and the right to privacy and contribute to violations of the right to liberty and security of the person, the right to the highest attainable standard of health, and the right to freedom of association. More detailed information can be found on Human Rights Watch’s LGBT page:

https://www.hrw.org/report/2018/10/26/let-posterity-judge/violence-and-discrimination-against-lgbt-people-malawi

Criminalisation of adult consensual same sex conduct (ICCPR articles 2, 9, 17, 26)

Human Rights Watch urges the Committee to question the government of Malawi about decriminalisation of adult consensual same sex conduct:

  • What steps has the government of Malawi taken to clarify the legal standing of the moratorium of arrests for consensual same-sex conduct?
  • What steps has the government of Malawi taken to repeal sections 153, 156, 157 and 137A of the Penal Code that criminalize adult consensual same sex conduct?
  • What steps has the government of Malawi taken to repeal section 132 of the Penal Code and replace it with a gender-neutral definition of sexual assault including rape?
  • Has the government introduced a mechanism to monitor cases of violence against lesbian, gay, bisexual, transgender and intersex person, prosecute perpetrators and compensate victims?
  • What concrete measures has the government of Malawi taken to address unfair discrimination on the basis of sexual orientation and gender identity?

Arbitrary arrest of LGBT people and equal protection of the law (ICCPR articles 9, 26)

Human Rights Watch urges the Committee to question the government of Malawi about protection of and prohibition of violence perpetrated against LGBTI individuals:

  • Has the government of Malawi issued clear directives to all police officers instructing them to respect the moratorium on arrests for consensual same-sex conduct pending repeal of the relevant provisions of the Penal Code and end arbitrary arrests and detention of LGBT individuals?
  • What steps has the government taken to establish human rights desks at police stations to provide a safe environment for LGBT persons to report police abuses and for complaints to be processed and investigated without delay?

Stigma and Discrimination in Access to Health Care Services (ICCPR article 17)

Human Rights Watch urges the Committee to question the government of Malawi about non-discriminatory access to health care services for LGBT persons:

  • Has the government of Malawi put in place measures to ensure the effective implementation of and compliance with national legislation that makes it unlawful to discriminate against anyone , including LGBT people, based on their HIV status?
  • Has the government of Malawi established sensitization programs on sexual orientation and gender identity for health care providers at all government hospitals and a complaints mechanism for individuals subjected to discrimination while seeking HIV services and treatment?

Roles and Responsibilities of the Malawi Human Rights Commission (ICCPR article 2)

Human Rights Watch urges the Committee to question the government of Malawi about the independence and responsibilities of the Human Rights Commission:

  • Does the Human Rights Commission monitor, investigate and publicly report on incidents of violence based on sexual orientation and gender identity?
  • What concrete steps has the Human Rights Commission taken to effectively implement the actions adopted at the March 2017 workshop hosted by the Network of African Human Rights Institutions? These actions include supporting strategic litigation efforts to uphold the rights of LGBT persons and conducting staff training on sexual orientation and gender identity issues.  
  • What is the status of the Malawi’s Human Rights Commission’s study on the rights of LGBT and intersex people in Malawi that it committed to in 2017?

Administration of Justice (ICCPR article 14)

Human Rights Watch urges the Committee to question the government of Malawi about addressing the backlog of cases:

  • In order to finally resolve the question of legality of the moratorium on arrests and prosecutions for consensual homosexual acts and the constitutional validity of section 153 of the Penal Code, has the Supreme Court taken the necessary steps to expedite cases No. 22 of 2011, No. 411 of 2011 and No. 622 of 2011?