CIVICUS discusses the Malawi Constitutional Court’s decision to uphold the criminalisation of homosexuality with members of the Nyasa Rainbow Alliance, a civil society organisation that has supported LGBTQI+ people and promoted LGBTQI+ rights for a decade, despite facing significant legal and societal challenges.
On 29 June, Malawi’s Constitutional Court dismissed a petition challenging sections of the penal code that criminalise sexual relations between consenting same-sex adults, arguing that there was no evidence that criminalisation was discriminatory and that it’s up to parliament to amend existing laws. The case involved a Dutch man and a Malawian transgender woman who were charged with engaging in homosexual sex in 2021. As a result of the negative court decision, criminal proceedings against the two will continue.
What’s the status of LGBTQI+ rights in Malawi?
LGBTQI+ rights in Malawi are severely restricted by the country's Penal Code, which criminalises ‘carnal knowledge against the order of nature’ and targets those who engage in sexual activities deemed ‘unnatural’ or ‘indecent’. These vague and broad provisions carry penalties of up to 14 years in prison. Although in theory they apply to everyone, in practice they are mainly enforced against LGBTQI+ people, leading to frequent harassment, arrests and extortion by police. A trans woman was recently convicted under these provisions, which according to the Constitutional Court comprise all sexual acts between people of the same sex, including oral sex.
Legal provisions are reinforced by social attitudes. A large proportion of people oppose same-sex relationships. Religious and traditional leaders have been vocal in their opposition to LGBTQI+ rights, organising protests and reinforcing discriminatory sentiments. As a result, many LGBTQI+ people face significant challenges: they are often disowned by their families, lose their jobs or are evicted from their homes. The recent Constitutional Court decision to uphold the criminalisation of homosexuality will only exacerbate the situation, because many will interpret it to mean there’s no place for LGBTQI+ people in Malawi.
What was your request to the court and what are your next steps?
We asked the Constitutional Court to determine whether Section 153 of the Penal Code, which outlaws consensual same-sex relations between adults, violates the constitutional rights to privacy, dignity, equality and non-discrimination. We questioned whether actions such as the police stripping a trans woman to verify her gender and forcing her to undergo a medical examination violated her rights.
The Constitutional Court’s decision was both surprising and perplexing. It ignored important human rights issues and appeared to be influenced by social prejudices rather than legal principles. The court’s reasoning was based on a broad interpretation of Malawi’s constitution and failed to address our specific concerns about discriminatory enforcement and invasion of privacy. The law disproportionately targets LGBTQI+ people while leaving the private lives of heterosexuals unaffected – a point the court overlooked.
We decided not to appeal because it would be unlikely to succeed and could set a negative precedent for future LGBTQI+ advocacy. It would also be costly and divert resources from vital advocacy work. Instead, we will focus on raising awareness, engaging key stakeholders such as members of parliament, judges and senior police officers, and building alliances to advance LGBTQI+ rights in Malawi through strategies other than litigation.
What are the challenges faced by LGBTQI+ rights groups in Malawi?
There are several groups working on LGBTQI+ rights in Malawi, including the Diversity Forum, a consortium of LGBTQI+ organisations that coordinates our collective advocacy. But we work under considerable constraints.
A major challenge is the politicisation of LGBTQI+ issues. In a conservative society like Malawi, political leaders often avoid supporting LGBTQI+ rights to maintain their popularity and electoral support. Fear of political repercussions discourages politicians and the public from supporting LGBTQI+ advocacy.
There’s also groups mobilised in direct opposition to our work. During our court case, religious groups organised demonstrations against LGBTQI+ rights, and even the Minister of Information attended these protests. Such high-profile opposition hampers advocacy efforts and discourages potential allies from joining the movement.
As a result, many organisations end up hiding their true aims to avoid persecution. When registering, they tend to describe their mission in terms of advocating for ‘minority groups’ rather than explicitly mentioning LGBTQI+ rights. Cautious wording helps them obtain registration, but limits transparency and can make advocacy more difficult.
The recent court ruling has created an even more hostile atmosphere for our work. But while the legal and social landscape remains challenging, we continue to support LGBTQI+ people, push for legal change and strive for greater acceptance of LGBTQI+ people in our society.
What progress have you made in terms of visibility and acceptance?
We are organising a Pride event this August, although it will be a more private celebration compared to our 2021 Pride. During this event, we will recognise and award people and organisations for their contributions to LGBTQI+ advocacy and honour courageous allies, including some religious leaders and parents of LGBTQI+ people.
Our Pride event will be a mix of advocacy and celebration of our achievements. A recent breakthrough, for instance, was getting the Ministry of Health to support HIV-related health services in government health facilities. It helps us overcome barriers such as stigma and discrimination from health workers.
We have also built relationships with various government institutions, such as the Malawi Human Rights Commission, who actively participate in our events, as well as journalists and social media influencers who help us promote positive narratives about LGBTQI+ people.
Another notable achievement has been the creation of a network of pro-LGBTQI+ religious leaders, which is particularly important in a conservative society like ours. This network is working on a joint statement against the court ruling and harassment of LGBTQI+ people.
How do you connect to the global LGBTQI+ movement and what international support do you need?
We are strongly connected to the global LGBTQI+ movement through partnerships with international organisations such as Amnesty International and the Southern Africa Litigation Centre. We also attend major global conferences, such as this year’s International AIDS Conference in Germany, where we gain recognition and support.
While these global connections are good and valuable, we need additional support to ensure the safety and effectiveness of LGBTQI+ advocacy in Malawi. This includes improving digital and physical security and supporting engagement with influential traditional and religious leaders to change public perceptions. We need resources to train advocates, provide safe housing and address harmful ‘conversion practices’.
Civic space in Malawi is rated ‘obstructed’ by the CIVICUS Monitor.
Get in touch with the Nyasa Rainbow Alliance through its website or its Instagram and Facebook pages, and follow @nyasa_rainbow on Twitter.
