The problems with debate on same sex practices in Malawi

The issue of homosexuality is one of the most emotive issues globally since the systematic atrocities such as slavery, colonialism and apartheid. The extent of tension on issues of homosexuality in the social, political and cultural spheres defies imagination. Whenever this issue emerges in an African nation, all other competing priorities are stalled. Malawi is no exception. The issue of homosexuality has been very high on the public agenda since November 2009, when Steven Monjeza and Tiwonge Chimbalanga were arrested after the local media reported their traditional wedding in the commercial city of Blantyre. Ever since, dramatic events have followed, dominated by an assumed majority condemnation of homosexual practices and calls for strengthening of mechanisms to curb the practice in the country. This paper will argue that the current key positions to reject homosexuality in Malawi are predominantly unsubstantiated rhetoric. In singling out homosexuality as the only unequal sexual practice, such rejection is ultimately destined for failure.

Monjeza and Chimbalanga were arrested in 2009 for violating the Malawi Penal Code provisions on gross indecency and unnatural acts. Following a dramatic court case, the two were convicted with a maximum penalty of 14 years imprisonment in May 2010, and a week later pardoned by President Bingu wa Mutharika during a coincident state visit by the United Nations Secretary General. The case has since been followed by public condemnation of homosexuality by religious leaders, traditional leaders, politicians and some civil society groups. In 2011, newly appointed President Joyce Banda announced to parliament her intentions to repeal anti-homosexuality laws. She however retracted her position following a backlash from religious leaders. The Banda government later indicated that they would not be implementing the anti sodomy laws until the issue is reviewed, although they retracted the position soon afterwards.

At the end of 2013, the High Court of Malawi issued a call for public input for consideration on constitutionality of anti-sodomy provisions of the Malawi Penal Code. Several stakeholders have joined the case including civil society organisations, the Malawi Law Society, a member from the University of Malawi Law Department, and the United Nations. Recently, the Malawi Council of Churches has reacted to the Court process with a public statement condemning homosexual practices as not only against God, but also alien to Malawian cultures, beliefs and tradition. The position has been supported by a Malawi Muslims Association leader who has proposed the death penalty for homosexuality. However, surprisingly the Government has recently condemned homophobic statements calling for death penalty for homosexuals, although on the contrary they are challenging a constitutional consideration of anti-homosexuality laws by the High Court.

On the other hand, a local civil society organisation has produced a documentary film entitled Umunthu, depicting a journey around the country to solicit different opinions about criminalisation of same sex practices in the country. The documentary proposes the Umunthu approach, a Malawian philosophical concept of brotherhood and humanism. A High Court Judge has recently spoken of a need for an earnest discussion on minority rights for the country to move forward. An international Malawian comedian has also recently embarked on a project to produce a comic play about anti-gay laws in Africa.

Debate on the issue of homosexuality in Malawi has been complex. The unpredictable and sometimes tense course of the debate provides a snapshot of the difficulties encountered when confronting the dilemmas and anxieties around the issue of homosexuality in Africa. At most times, emotions from opposing view-holders overshadow the need for structured and strategic dialogue. Usually raising opposing points on totally different issues, each opposing side expects an absolute win. By implication, the 'homosexual' person is not the focus of the debate- it is a contestation on the homosexuality as an idea or concept, and the 'homosexual' is just collateral damage in the equation.

It should be noted that dialogue on homosexuality in Malawi has failed so far. Firstly, the dialogue fails because most key opponents of homosexuality have no intention to engage on the issue with the proponents. Secondly, concepts on the issue have been understood or conceptualised differently by each stakeholder. Thirdly , opponents of homosexuality have largely depended on rhetoric rather than valid truth in their claims, thereby complicating any prospects of logical dialogue. Lastly, the opponents do not see compromise or common ground as an option to reach a settlement on the issue. Without the above logical prerequisites, any dialogue becomes futile.

Proponents of the protection of human rights for the people with same sex preferences in Malawi have advocated for decriminalisation of the Malawi Penal Code sections 153, 156 and 137A; which criminalise 'carnal knowledge against the order of nature', 'indecent practices between males', and 'indecent practices between females'. Their argument is that the three Penal Code sections are contrary to the constitutional principles of non discrimination in the guarantee of human rights provided in Chapter VI of the Malawi Constitution. The opponents have argued that any proponents of homosexual rights are primarily fighting for Malawi to legalise same sex marriage. They have further argued for the maintaining or strengthening laws to criminalise homosexuality because the practice is against religion, tradition, and cultural values. The position of the opponents seem non-negotiable.

The preoccupation that any advocacy for decriminalisation of same sex practices is actually aimed at pushing for gay marriage in Malawi has overshadowed the real concern; that of human rights for the people affected. The advocacy for decriminalisation of anti-homosexuality laws have long argued that the issue of same sex marriage is not a priority at least for Africa. Rather, they claim that the primary concern is for the people affected to have equal access to human rights as prescribed by the constitution. Chapter VI of the Malawi Constitution provides for the protection of human rights such as; life., personal liberty, dignity, equality, privacy, education, and development. It also provides for protection of freedoms such as; association, conscience, opinion, expression, and assembly. Importantly; it provides that there shall be no derogation, restriction, or limitation to; the right to life; prohibition of torture, cruel, inhuman, or degrading treatment or punishment; right to equality and recognition before the law; and the right to freedom of conscience, belief, thought. The laws criminalising same sex therefore, they claim, obstructs the people affected from truly accessing those constitutional rights and freedoms as they risk persecution every time they attempt to access such rights with their same sex identity. In other words, they claim that the laws prohibiting same sex practices contradicts the Constitutional human rights provisions, and obstructs possibilities of enjoying reaps of the constitution like the rest of the citizens. They also advocate for decriminalisation based on the principle in the Malawi Constitution that 'any law that is inconsistent with the provisions of the Constitution is invalid''.

One example on the challenges with the Penal Code provisions in question is that that men who have sex with other men end up having limited access to HIV prevention and treatment services. It has been argued by HIV/AIDS activists that men who have sex with men fail to access HIV and AIDS services in Malawi as they risk persecution every time they access health services based on their sexuality. They face ridicule from health personnel, who may potentially report them to Police for arrest. As such, their failure to access services further fuel the spread of HIV and devastating impact of AIDS-related illnesses to the nation. It is therefore crucial to consider whether decriminalisation of same sex practices may increase access to human rights, including access to HIV and AIDS services, forthis group.

The debates on homosexuality has seen usage of various English concepts describing same sex relationships, some which may not accurately describe the local same sex experiences. Same sex practices have been described with different terminology including 'homosexuality' or 'gay' or 'same sex'. The terms 'homosexuality' and 'homosexual' were coined in 1869 in Germany during opposition of sodomy laws, and its usage in the English language only emerged in the 1880s and 1890s. The terminology have been argued to describe the Euro-American experience of same sex practices or relations. Some Western literature defines homosexuality as 'the experience of being erotically attracted to a member of the same sex, and men or women who habitually experience strong feelings of this kind are called homosexuals'. This experience is insufficient to describe the same sex experiences documented about Africa or Malawi.

African same sex relations have historically defined beyond eroticism and intimacy. Those displaying contrary sexual identities in Africa, as observed in history, were at times understood to have such contraries as a matter of god's will. In other instances, they were seen as having such characteristics to balance a state of impotence. And in other times, they were seen as transforming into an opposite gender whenever enacting such contrary identity- they were not men when performing female roles and characteristics. They were also seen as a normal 'additional or third gender'. Our assumption that such African complex same sex experiences fit into the 'homosexual' or 'gay' concept has restricted our understanding and conceptualisation. It has also diluted the African same sex identity. The African same sex experience should not be associated with the bias of the gender binary; where one is either male or female, and that a man is supposed to wear male attire and have sexual relations with a woman while a woman is supposed to wear female attire and have sexual relations with a man.

Calling the same sex experiences of Africans as homosexual has also attributed to it the prejudices against homosexuality from Western cultures and religion. These prejudices are reflected in the Malawi Penal Code provisions which were directly adopted from British laws. They are also reflected in the majority religious rhetoric that was imported with the indoctrination of Christianity to the continent. Africa has had better historical tolerance towards contrary sexual identities, unlike the West.

Same sex practices have been documented in Africa from the early centuries. Since African borders are an artificial division of the continent imposed during colonialism, the assumption is that same sex experiences especially from selected southern African countries may shed light on the history of same sex practices in Malawi. The first evidence is found in language which describes same sex practices such as 'cha matonde' or 'Mathanyula'. Coincidentally the same practices are called 'Matanyero' in Zimbabwe, and 'Matanyola' in Botswana.

Same sex practices have also been documented within proximity to Malawi. The first Swahili- English dictionary in West Africa contained local words for describing cross-dressing between genders. Between 1892 and 1923; approximately 300 cases of homosexual crimes came before the magistrate courts of Zimbabwe. Such cases were reported in the courts soon after establishment, meaning that the same practices that reached the courts pre-existed colonialism in the country. The evidence received by the courts describe some of the same sex practices as not accidental but habitual. The evidence also suggest tolerance and acceptance by family members or society. Interestingly, approximately 9% of the cases involved Nyasaland natives as perpetrators. This evidence therefore implies that the claim of Malawi being free from same sex practices in its history should be rejected as nonfactual.

In order to achieve structured and valid argument in any dialogue on same sex practices, it is vital that emotions, rhetoric and untrue claims be avoided. Rhetoric and untrue claims have been the prime basis for most arguments by opponents of same sex practices.

The recent rejections of 'homosexuality' and calls for a referendum or strengthening of criminal laws by two religious groups have claimed that the practice is against Malawian cultural values, tradition, and religion. However, the above historical evidence demonstrate that the practices existed in history in Southern Africa and that some families and societies accepted and tolerated such practices. In recent time, it is reported that prior to the 2009 arrest, Tiwonge Chimbalanga was commonly accepted as feminine by her local community in Blantyre. She was commonly known as Aunt Tiwonge. Just like the response to same sex practices in history described about Herero peoples of Namibia, the Aunt Tiwonge case in the community may have just been a matter of moderate laughter, but generally accepted and tolerated. Same sex identities or practices can therefore be tolerated and accepted.

Religious claims to advance homophobic laws also becomes invalid because religion cannot be basis for Malawi laws as the Constitution declares the country a secular state. It is also unclear on the criteria that the religious claims have singled out homosexuality when other sins of sexual nature such as fornication are not criminalised. Further, the religious claims to advance homophobic attitudes deliberately omits consideration of alternative principles of tolerance, compassion, and love. Strengthening criminal laws contradicts such religious principles. The Catholic Church for example, although viewing homosexuality as a disorder, promotes acceptance, compassion, respect and sensitivity in its Catechism. Recently, Emeritus Bishop Desmond Tutu doubted if God would advance or approve homophobia.

Rejection of same sex practices is also a political issue. The rejection, usually assumed to be in the favour of majority view locally, is a safe and therefore preferred option for most African leaders. In the Southern Africa region, leaders like Robert Mugabe and Sam Nujoma have previously advanced rhetoric to mobilise political consensus. Former Botswana President Festus Mogae has been recorded that during his presidency he feared standing up for protection of 'these gays' for fear of losing voter support. It is therefore not surprising that President Banda retracted her intention to repeal anti sodomy laws after expressing her intention to do so. It is also not surprising that state-funded institutions like the Malawi Human Rights Commission are consequently hesitant to get involved in this human rights matter. However, the Malawi High Court provides a viable opportunity for Malawians to participate in an all- inclusive process to consider a common issue relating same sex practices for an independent decision.

There are a number of issues for consideration for the participants to the Malawi High Court process. Firstly, the people concerned with these laws are fellow ordinary Malawians who are equal citizens of the country. Consideration should be priortised to promote the welfare and interest as fellow citizens, especially those that are disadvantaged and vulnerable. Secondly, it is vital to advance valid factual claims for the process. Thirdly, all opposing view-holders should face the inevitable fact that this will not be an all-win contest, compromises are expected. Finally, the current court process should be viewed as a start to a wider social and political conversation for the foreseeable future.

In conclusion, the debate on same sex practices in Malawi has been complex and emotive. Facts suggest that same sex relations existed in Malawi's history and that society had ways to positively deal with them. Previous debates about same sex practices in Malawi have failed to achieve agreement, mainly due to an expectation that rejection of homosexuality is the only valid agreement to be reached. However, human rights for those with same sex practices should be considered. The High Court has provided a rare opportunity for structured process for different view-holders to present their arguments for an independent decision. The court process should also be viewed as a start to a wider social and political conversation in the country. Future conversation therefore require deeper understanding about same sex identities and practices in the country and better structured dialogue for the foreseeable future.

* Alan Msosa is a Commonwealth Scholar, nominated through the Canon Collins Educational and Legal Assistance Trust, currently studying for a PhD in Human Rights at the University of Essex Human Rights Centre in the United Kingdom.

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