Aaron Sangala
Minister of Home Affairs and Internal Security
Professor Peter Mutharika
Minister of Justice and Constitutional Affairs
Wezzie Kayira
Directorate of Public Prosecution
Dear Ministers Mutharika and Sangala and Director Kayira,
I write you on behalf of Human Rights Watch to express our grave concern over recent jailings under Malawi's colonial-era "sodomy" laws. Human Rights Watch documents and advocates against human rights violations in over 80 countries. As we detail below, detention, arrest, and persecution of individuals on the grounds of perceived or real sexual orientation and/or gender identity are a grave threat to human rights and public health.
On December 26, 2009, Steven Monjeza, age 26, and Tiwonge Chimbalanga, age 20, conducted a traditional engagement ceremony (chinkhoswe). Newspapers reported on the chinkhoswe and police in Blantyre arrested Monjeza and Chimbalanga at their home on December 28, charging them with "unnatural offences" 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 determine if he had sexual relations with males. On January 7, the authorities subjected both individuals to psychiatric evaluation, also conducted without their consent. They are being held in Chichiri prison in Blantyre. Their lawyers have told Human Rights Watch that Monjeza and Chimbalanga are being verbally abused, possibly beaten, and not receiving adequate food and other necessities in prison.
The trial of Monjeza and Chimbalanga began on Monday, January 11, at 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 court denied the request. The trial will continue on Wednesday, January 13. If found guilty, they 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 communities of men who have sex with men (MSM). The Malawian government has sought to integrate vulnerable populations, including men who have sex with men, into its HIV/AIDS response. Malawi's constitution guarantees the rights to liberty, security of person, privacy, and freedom from discrimination. However, these government commitments to protecting and promoting the rights and well-being of all Malawians are undermined by laws that criminalize adult, consensual sexual conduct, and by the impunity with which police arbitrarily arrest and persecute individuals in the MSM and lesbian, gay, bisexual, and transgender (LGBT) communities.
Sections 153 and 156 of the Malawian Penal Code penalize consensual homosexual conduct as "carnal knowledge ... against the order of nature," or as "gross indecency." These laws are relics of British colonialism. They 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 state compliance with its provisions, found in the 1994 case of Toonen v. Australia that laws criminalizing consensual homosexual conduct between adults violate the ICCPR's protections for private life and against discrimination. Further, article 9 of the ICCPR secures for all the right to liberty, security, and rights against arbitrary detention.
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."
We call on you to intervene immediately and drop all charges against Steven Monjeza and Tiwonge Chimbalanga. Your upholding the rights of these two individuals is critical for protecting all Malawians' fundamental human rights.
Sincerely,
Scott Long
Director
Lesbian, Gay, Bisexual, Transgender Rights Program
