Dear President Mutharika:

Human Rights Watch is one of the world's largest human rights organizations, documenting a broad range of human rights violations in over 80 countries. We are writing today to draw your attention once again to the ongoing criminal trial of Tiwonge Chimbalanga and Steven Monjeza. Their arrest and imprisonment on grounds of their sexual orientation and gender identity, as we detail below, presents a grave threat to the human rights of all Malawians. We urge that all charges against Monjeza and Chimbnalanga are dropped, to uphold constitutional principles of equality, privacy and dignity.

Police arrested Tiwonge Chimbalanga (20) and Steven Monjeza (26) on December 28, 2009, because they conducted a traditional engagement ceremony in Blantyre on December 26. They were arrested at home and charged under Sections 153 ("unnatural offences") and 156 ("indecent practices between males") of Malawi's criminal code. They have been in custody since then, first at Blantyre police station, where they have described how police beat them in an effort to make them confess to having engaged in homosexual conduct and being in a homosexual relationship, and subsequently have been detained at Chichri prison.

A court denied both their request for bail and their appeal to have the matter moved to the Constitutional Court. Authorities subjected Chimbalanga to a medical examination, without consent, at Queen Elizabeth hospital on January 6, 2010, apparently aiming both to determine whether Chimbalanga had had sexual relations with males and establish Chimbalanga's gender. On January 7, both Chimbalanga and Monjeza were subjected-again without their consent-to psychiatric evaluation at Zomba Mental Hospital in Zomba city.

Their trial began at Blantyre Magistrate's Court on January 11 and the prosecution rested its case on March 22, 2010. The defense will present its case on April 6, 2010, and the verdict is expected soon after.

All this time, Chimbalanga and Monjeza have remained in prison. If found guilty, they may receive a sentence of up to 14 years with hard labor. Their families have disowned them and they rely upon local human rights organizations and their lawyers for legal aid and support. The case has received widespread media coverage locally and internationally, and Malawian human rights defenders fear that it has already dealt a harsh blow to HIV/AIDS education and prevention efforts among already marginalized populations of men who have sex with men.

The arrest and trial of Chimbalanga and Monjeza violate both domestic and international human rights standards. Articles 19, 20 and 21 of the Malawian constitution guarantee the rights to human dignity and personal freedoms, equality, and privacy. Articles 32 and 35 guarantee the rights to freedom of association and expression. The criminalization of consensual sexual conduct violates these and other principles of the constitution; it also violates human rights principles enshrined in international treaties to which Malawi is party.

The United Nations Human Rights Committee, which authoritatively interprets the International Covenant on Civil and Political Rights (ICCPR), found in the 1994 case of Toonen v. Australia that laws criminalizing consensual homosexual conduct among adults violate the ICCPR's protections for private life and against discrimination. Article 9 of the ICCPR secures the inherent dignity of persons deprived of liberty and Articles 17 and 19 guarantee the rights to privacy and freedom of expression. Articles 2 and 3 of the African Charter on Human and Peoples' Rights prohibit discrimination in an identical way to the ICCPR and require each individual to be equal before the law and be entitled to equal protection of the law. Article 28 of the Charter requires the promotion, respect for and reinforcement of "mutual respect and tolerance" between all individuals.

Forensic, medical, and psychiatric examinations performed upon individuals in detention and without their consent are abusive and may constitute torture. Their value in determining sexual orientation and consensual sexual practices has long been discredited. Article 19 (3) of Malawi's constitution promises that "No person shall be subject to torture of any kind or to cruel, inhuman or degrading treatment or punishment." Article 19 (5) guarantees that "no person shall be subjected to medical or scientific experimentation without his or her consent." Article 7 of the ICCPR prohibits torture and cruel or degrading treatment; it specifically promises that "no one shall be subjected without his free consent to medical or scientific experimentation."

In the light of the gross violation of the defendants' human rights, we once again call for the dropping of all charges and release of Chimbalanga and Monjeza. We ask this both in the interest of upholding Chimbalanga's and Monjeza's human rights as well as public health. At a minimum, we ask that Chimbalanga and Monjeza be released on bail immediately as their case is reviewed.

Sincerely,
Scott Long
Director
Lesbian, Gay, Bisexual, Transgender Rights Program

Cc:

Minister Arthur Peter Mutharika
Minister of Justice and Constitutional Affairs

Minister Aaron Sangala
Minister of Internal Affairs and Public Security

Mr. Wezzie Kayira
Directorate of Public Prosecution

Malawi Human Rights Commission