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(Nairobi) – The Malawian government’s decision to suspend enforcement of laws that criminalize consensual same-sex conduct is the right thing to do, and should serve as an inspiration to other countries that criminalize homosexuality, Human Rights Watch said. During a radio debate last week with activists from Malawi’s lesbian, gay, bisexual, and transgender (LGBT) community, the justice minister announced a moratorium on arrests on the basis of the country’s colonial-era sodomy laws. 

Justice Minister Ralph Kasambara said the decision was based on concerns that Malawi’s anti-gay laws, which punish consensual same-sex conduct with prison sentences of up to 14 years for men and 5 years for women, may be unconstitutional. “The idea to issue a moratorium is that if we continue arresting and prosecuting people based on the said laws and later such laws are found to be unconstitutional it would be an embarrassment to government,” he said. The minister’s statement reflects a growing consensus that arrests on the basis of consensual same-sex conduct violate international human rights standards, as well as constitutional guarantees of equality in many countries in which laws nonetheless continue to discriminate against LGBT people. 

“Malawi has taken a bold step forward, putting respect for its own constitutional guarantees of equality front and center,” said Tiseke Kasambala, Africa advocacy director at Human Rights Watch. “No one should go to prison for consensual relations with someone of the same sex, and Malawi’s decision has given hope to thousands who risk prison sentences under such laws.”

The question of decriminalization of same-sex intimacy in Malawi has been debated since President Joyce Banda assumed power in April. Banda initially told parliament that she would take steps to decriminalize same-sex intimacy, but told reporters from international media in September that Malawians might not be ready for such a change, and suggested that members of parliament should take the question of decriminalization back to their constituencies. The justice minister’s call for a moratorium on arrests is a compromise position, which will permit parliament to debate possible legislative change. 

During the colonial era, Britain imposed laws banning sodomy on over 40 of its colonies. Most colonies, including Malawi, inherited a cookie-cutter version of the same law, belying the claim that anti-gay laws are rooted in African tradition. Colonial laws in various jurisdictions shared virtually identical language, punishing “carnal knowledge against the order of nature” – generally understood to mean anal intercourse – with up to 14 years in prison. When such laws have been enforced, they have almost invariably targeted same-sex couples rather than heterosexual couples. Former president Bingu wa Mutharika signed a bill criminalizing same-sex conduct between women in February 2011. 

However, Malawi’s constitution includes strong provisions on equality and human dignity. According to Article 12(iv), “The inherent dignity and worth of each human being requires that the State and all persons shall recognize and protect fundamental human rights and afford the fullest protection to the rights and views of all individuals, groups and minorities whether or not they are entitled to vote.” The constitution also guarantees all Malawians equal protection before the law and bans discrimination on the grounds of race, color, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, property, birth, or other status.

Malawi is also a party to the International Covenant on Civil and Political Rights (ICCPR). The Human Rights Committee, a treaty body tasked with interpreting the ICCPR, has ruled that criminalization of consensual same-sex conduct violates the covenant’s provisions on privacy and non-discrimination.

Malawian LGBT rights activists have assiduously lobbied the government for repeal of the provisions that criminalize homosexuality. The justice minister’s statement announcing the moratorium on arrests was made in a radio debate with human rights activists, organized by two Malawian nongovernmental organizations, the Center for the Development of People (CEDEP) and the Center for Human Rights and Rehabilitation (CHRR). It reflects the effectiveness of Malawian activists’ strategy of engaging with the government in open dialogue about sexual orientation and gender identity. 

At least 76 countries, 38 of them in Africa, criminalize consensual same-sex conduct. Arrests on the basis of Malawi’s anti-gay laws have been rare – two men were convicted in 2009 and sentenced to 14 years, but were subsequently pardoned. But Human Rights Watch has found that even unenforced anti-gay laws have nefarious consequences, including blackmail, restricted access to health services, and lack of access to justice. In the handful of countries that frequently prosecute people for homosexuality, LGBT people live in constant fear of arrest. 

“The need for a moratorium on arrests of LGBT people is all the more urgent in countries where arrests and prosecutions on homosexuality charges shatter the lives of innocent citizens,” said Kasambala of Human Rights Watch. “Other countries that criminalize homosexuality, all too often invoking vague notions of ‘African tradition’ to justify such laws, would do well to take note of Malawi’s positive example.”

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