(New York) - The attempt to convict two people whom the government accuses of breaking laws against homosexual conduct after they went through an engagement ceremony violates basic freedoms on the grounds of sexual orientation and gender identity, Human Rights Watch said in a letter to Malawian authorities. Human Rights Watch called on the prosecutors to drop all charges against Tiwonge Chimbalanga and Steven Monjeza and on the government to reaffirm its commitment to all Malawians' right to equality, privacy, and dignity.
"The case against Tiwonge Chimbalanga and Steven Monjeza is an affront to essential principles of non-discrimination and equality," said Dipika Nath, researcher in the Lesbian, Gay, Bisexual, Transgender (LGBT) Rights Program at Human Rights Watch. "It singles out two people as criminals simply because they love each other."
Chimbalanga, age 20, and Monjeza, 26, were arrested on December 28, 2009, following media coverage of their traditional engagement ceremony in Blantyre on December 26. They were 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 the Blantyre police station and then at Chichri prison, also in Blantyre. The men told their lawyers that they were beaten by officers at the police station to try to make them confess to having engaged in homosexual conduct and being in a homosexual relationship.
Both the magistrate's court in Blantyre and the High Court denied their request for bail. The latter claimed that the two needed to be incarcerated for "their own safety." An appeal to have the matter moved to the Constitutional Court was also rejected. Chimbalanga was subjected to a medical examination, without consent, at Queen Elizabeth hospital on January 6, 2010, with the aim of establishing whether Chimbalanga had had sexual relations with males and to 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 concluded its case on March 22. Among the witnesses were the police officials who arrested the two, Chimbalanga's employer, and witnesses to the engagement ceremony. The defense will present its case on April 6, and the verdict is expected soon after.
If found guilty, Chimbalanga and Monjeza 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. At a minimum, they demand that the defendants be released on bail without further delay.
"British colonizers imposed these unjust legal provisions on Malawi, and a government committed to equality and human rights has no business enforcing them," Nath said. "The trial has already wrecked two lives and driven vulnerable populations underground. The prosecution should drop the charges."
The arrest and trial violate both domestic and international human rights standards. Articles 19, 20, and 21 of the Malawian constitution guarantee the right to human dignity and personal freedom, equality, and privacy. Articles 32 and 35 guarantee the right to freedom of association and expression. The criminalization of consensual sexual conduct has been held internationally to violate both the right to privacy and to equality.
The United Nations Human Rights Committee, which authoritatively interprets the International Covenant on Civil and Political Rights (ICCPR), a treaty to which Malawi is party, 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.
Forensic, medical, and psychiatric examinations performed upon individuals in detention and without their consent may constitute torture or degrading treatment. Their value in determining sexual orientation and 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."