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(New York) - Malawi's government should drop all criminal charges against a same-sex couple who are facing up to 14 years in prison, Human Rights Watch said today in a letter to high-level justice and home affairs officials. The prosecution of these individuals under Malawi's colonial-era "sodomy" laws and the ill-treatment and possible torture of the couple are a grave threat to human rights and public health in Malawi, Human Rights Watch said. 

"Prosecuting two adults just because they affirm their love is a terrible injustice," said Dipika Nath, researcher in the lesbian, gay, bisexual, and transgender rights program at Human Rights Watch. "To subject individuals to spurious medical examinations against their will shows grave disregard for their fundamental human rights as well as for the public welfare."

On December 26, 2009, Steven Monjeza, 26, and Tiwonge Chimbalanga, 20, conducted a traditional engagement ceremony (chinkhoswe, in Chichewa) in the city of Blantyre.  After newspapers reported on the chinkhoswe, police in Blantyre  arrested Monjeza and Chimbalanga at their home on December 28, charging them with "unnatural offenses" and "indecent practices between males" under sections 153 and 156 of Malawi's criminal code.

A judge denied them bail, and on January 6, 2010, Monjeza and Chimbalanga were taken to Queen Elizabeth Central Hospital, where Chimbalanga was forced to undergo medical examinations to look for "evidence" of sexual relations with males. On January 7, they were both subjected to psychiatric evaluation, also without their consent. They are being held in Chichiri prison in Blantyre. Their lawyers told Human Rights Watch that Monjeza and Chimbalanga are being verbally abused and possibly beaten, and that they are not receiving adequate food and other necessities.

Their trial began on January 11 in Blantyre Magistrate's Court. Their lawyers requested an adjournment on the grounds that they had sought to move the matter to the constitutional court, but the judge denied the request. The trial will continue on Wednesday, January 13. If found guilty, Monjeza and Chimbalanga face up to 14 years in prison with hard labor.

Malawian human rights defenders told Human Rights Watch that the arrests have created widespread fear in Malawi among men who have sex with men.

Malawi's law criminalizing consensual homosexual conduct is a legacy of the country's colonial past. As Human Rights Watch has documented, British colonial rulers imposed laws regulating sexual and social conduct in dozens of countries in Africa, Asia and the Pacific. These laws are now often defended by Asian and African governments in the name of native culture and tradition. 

"These laws criminalizing consensual homosexual conduct are legacies of foreign rule, but they still have teeth," Nath said. "Malawi should rid itself of this disgraceful colonial relic."

Chapter IV of the Malawian constitution guarantees every person's right to liberty, dignity, and security of person. Article 20 prohibits discrimination on all grounds, and article 21 guarantees the right to privacy. Section 153 of the Malawian criminal code, which criminalizes consensual sexual conduct between adults, and section 156, which criminalizes "indecency" in both public and private, directly violate the right to privacy.

These criminal law sections are also contrary to international human rights standards. Specifically, article 2 of the African Charter on Human and People's Rights prohibits discrimination on all grounds; articles 3 and 19 secure for all the right to equality; and articles 5 and 6 guarantee the right to dignity and liberty.

The United Nations Human Rights Committee, which authoritatively interprets the International Covenant on Civil and Political Rights (ICCPR) and evaluates the compliance of states with its provisions, found in the 1994 case of Toonen v. Australia that laws criminalizing consensual homosexual conduct among adults violate the covenant's  protections of private life and against discrimination.

Forensic medical examinations to "prove" homosexual conduct are archaic and discredited, and when conducted without consent in conditions of detention, may constitute torture.  Article 19(5) of Malawi's constitution reads: "No person shall be subjected to medical or scientific experimentation without his or her consent." Article 7 of the ICCPR protects against torture and cruel or degrading treatment; it specifically guarantees that "no one shall be subjected without his free consent to medical or scientific experimentation."

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