‘Our understanding of human rights is limited’
Centre for the Development of People (Cedep) together with the Centre for Human Rights and Rehabilitation (CHRR) brought together legal experts through Malawi Law Society (MLS) to debate the legality of same sex relationships and challenges faced by lawyers in defending people belonging to such minority groups. Mwereti Kanjo caught up with MLS president John Gift Makhwawa to talk more on the issues.
Q: You have said that the Aunt Tiwonge [Chimbalanga and Steve Monjeza] case was a missed opportunity for Malawi to explain the rights discourse under the Constitution in line with minority rights. What is MLS doing now to rectify that mistake?
A: At the moment there is very little we can do because, with the Aunt Tiwo case, there was an opportunity to get constitutional declarations on the extents and limits of minority rights as are largely claimable. At that particular time there was no conducive environment to debate issues relating to sexual minority rights. But now the environment has changed. The President has come in the open and said we need to review the law and government has agreed to debate the law. An opportunity has availed itself where the nation will engage in debating whether to decriminalise homosexuality and sexual minority offences that are in the Penal Code. In the absence of that debate then Malawi Law Society can come in and say look how can we grab this opportunity to have these laws defined.
We would rather yield to the nation of Malawi to debate and yield to the National Assembly to debate and see what laws they will put in place and what laws they will take out. But like I said earlier, it remains to be seen whether it remains an issue of decriminalising because on one hand you have these offences created in the Penal Code and on the other hand you have a bill of rights which guarantees non-discrimination. So, all you are saying is do those laws fit in the constitutional standard set by our bill of rights?
Q: Why has the legal fraternity not come out clearly on whether this can be legalised or not in Malawi?
A: As lawyers, we are advocates, we are not the final say. The final say in terms of our advocacy is when we litigate before the courts and say can we have a declaration here. So as much as we have different opinions within the Law Society, my opinion is that if the case of Aunt Tiwo had been taken to the High Court sitting as the Constitutional Court, the laws under the Penal Code to which they were charged could not have stood the test of Constitution. Our Constitution guarantees rights much as in the same way as the Constitution of South Africa and if the South Africans come to the conclusion that sexual minority rights are guaranteed our belief is that the courts in Malawi are most likely to come to the same conclusion.
Q: Sections 20 of the Constitution has often come up in debates that are centred on same sex relationships in the country? What is your understanding of this section in relation to this topic?
A: The major threshold is the non-discrimination that you find in Section 20 of our Constitution. Our Constitution empowers our courts, our nation to look to international acceptable standards in terms of application of human rights and their limitations. The question that arises is if we limited the rights of sexual minorities as is the case under the Penal Code are we conforming to minimum acceptable standards of human rights? My answer is that we are not.
Q: With all the resistance by the majority of Malawians regarding the legalisation of same sex relationships, is it safe to say that Malawians have fully embraced issues of human rights?
A: No, it is actually not safe to say that we have fully embraced human rights. Like I said before, our understanding of human rights as a nation is very limited. I think it only suits us when we have a grievance that affects those claiming rights at that time but we do not see the extent and nature of human rights that others are supposed to enjoy. We tend to look at the majority view or a consensus point of view unlike looking at whether it is right or wrong. So, a majority are likely to dictate and suppress the rights of those minorities. I do not think we have come fully-fledged to understand the nature and extent of human rights. This is not only to sexual minorities, it is in relation to many other things including but not limiting to the right to assemble and demonstrate. You find that there is resistance from the State sometime and there is also resistance from fellow Malawians to say it is not good to demonstrate because demonstrations are bad. That demonstrates a lack of understanding of a particular right.
Q: There have been talks of holding a referendum to stop any progress made in the fight for the legalisation of same sex relationships? Is this plausible?
A: In my view, a referendum is permissible under the Constitution because you can only amend the Constitution in respect of its human rights provisions through a referendum. But, I must emphasise that the referendum will be an exercise in futility because you cannot, by referendum or by law, take away a human right because they are inherently attached to a person by virtue of being human. So, you cannot pass a law to take out human rights because that law will not take away that human dignity that you have, it will not take away the fact that you are human. It is the fact that you are human that you are titled to those rights.
Q: Why do you think the topic of gay rights seems to be sticky when there are so many other Malawians belonging to ‘minority’ groups whose rights are not respected?
A: This is the case because people must claim their rights. It is the advocacy that brings issues out into the open for people to debate. So, other minorities that do not bring out their issues society will not debate their issues and recognise the rights that are attached to them. That is why you must always be vigilant, stand up to fight for what is yours, the rights that you must enjoy. You, keep quiet you get nothing. Rights are guaranteed by the Constitution yes, but they are claimed by the person.
Q: Any last comments?
A: What I would urge Malawians is not to look to culture or any other influence. I am a Christian myself but I would not imprison someone because of my religious beliefs. My duty is to let that person know Jesus, know God and the choices that they make are theirs. I will have done my duty; I will have been my brother’s keeper once I let them know that there is salvation. But beyond that I should not criminalise them because they are not following my God.
