Hon. Samuel Tembenu

Minister of Justice and Constitutional Affairs

Lilongwe

Malawi

Via email: tembenu@malawi.net

15 December 2015

Re: Arbitrary Arrests for Alleged Homosexual Conduct

Honorable Minister Tembenu:

I am writing on behalf of Human Rights Watch to express serious concern over the arrest of two men in Lilongwe, [names withheld], on the basis of accusations that they were allegedly engaged in consensual homosexual conduct.

Malawi made a courageous decision in 2012 to stop prosecuting people for consensual same-sex conduct, winning accolades from the United Nations, international partners, and human rights organizations in Malawi and abroad. In demonstrating its respect for the rights to privacy and non-discrimination, Malawi has set a positive example for dozens of countries around the world that are also contemplating reforming antiquated colonial-era legislation, alongside neighboring Mozambique, which decriminalized homosexual conduct earlier this year. In July 2014, Solicitor-General and Secretary of Justice Janet Chikaya-Banda affirmed to the UN Human Rights Committee that the government had suspended enforcement of laws that prohibit consensual sex between adults of the same sex–including Sections 137(a), 153, 154 and 156 of the penal code–pending a High Court review of their constitutionality. That review is still ongoing.

However, in spite of these encouraging steps, we were surprised and disappointed to learn that in the early morning hours of December 7, community police in Area 25 in Lilongwe stopped and interrogated [name withheld] on the road, physically assaulted him, entered [name withheld] home with no warrant, and arrested the two men, allegedly on the grounds that they had engaged in consensual same-sex conduct. The community police turned them over to the Malawi Police Service, which detained them at Kanengo Police Station and forced them to undergo degrading medical examinations, including HIV and STI tests, at a local clinic. Police charged the men with “sodomy” and released them on bail on December 8. This is the first arrest of individuals accused of consensual same-sex conduct that we are aware of in Malawi since 2009.

According to an article in The Times on December 14, 2015,[2] police spokesperson Nicholas Gondwa denied that police arrested the two men, saying they were only taken into the police station for their protection. Interviews conducted with one of the men by his lawyer, and his police bail-bond document, a copy of which is on file with Human Rights Watch, suggest otherwise.

We urge the Malawian authorities to immediately drop the charges against [name withheld] and [name withheld], and to instruct the police that no one should be arrested on the grounds of their real or perceived sexual orientation or gender identity. Instead, the authorities should investigate the actions of community police members and local residents who, according to the lawyer of the accused, physically assaulted the two men and unlawfully entered and ransacked [name withheld]’s home.

In doing so, Malawi would be upholding African Commission Resolution 275 of 2013, which calls for member states to cease arbitrary arrests and to protect individuals from violence on the grounds of sexual orientation and gender identity, and abiding by its treaty obligations under the International Covenant on Civil and Political Rights, which guarantees the right to privacy and the right to non-discrimination.

We look forward to constructive dialogue with you as to how Malawi can best move forward in upholding the rights of all its citizens.

Best regards,

Graeme Reid

Director, LGBT Rights Program

Human Rights Watch

CC:

Office of the President and Cabinet

Ministry of Home Affairs and Internal Security

Attorney General’s Office

Solicitor-General’s Office

Malawi Human Rights Commission

OHCHR Malawi

UNAIDS Malawi

Centre for the Development of People (CEDEP)

Centre for Rights and Rehabilitation (CHRR)

MANERELA +

 

[1] Names withheld for their privacy, given the large number of recipients of this letter.