Arrests, violence, State indifference

People in same-sex relations in Malawi are treated as second-class citizens, suffering constant attacks and rights violations while the State looks away. While politicians want a referendum on rights of sexual minorities, HUMAN RIGHTS WATCH wants government to repeal the laws.

Malawi’s laws prohibiting consensual same-sex relations foster a climate of fear and fuel violence and discrimination, Human Rights Watch (HRW) said in a report released on Friday.

Malawi’s first gay couple to come in the open: Chimbalanga and Monjeza

The punitive legal environment combined with social stigma allows police abuse to go unchecked and prevents many lesbian, gay, bisexual, and transgender (LGBT) people from reporting violence or getting medical care.

The 61-page report, Let Posterity Judge: Violence and Discrimination against LGBT People in Malawi,  shows how the lack of clarity about the legal status of same-sex conduct leaves LGBT people vulnerable to arbitrary arrests, physical violence, and routine discrimination.

The justice minister issued a moratorium on arrests for adult consensual same-sex conduct in 2012, but there are divergent views about its legality.

“The law criminalising same-sex conduct contributes to a perception that LGBT people are fair game and can be assaulted without any consequences for the attacker,” said Wendy Isaack, LGBT rights researcher at HRW. “Imagine being beaten up in the street, reporting to the police, and being arrested yourself while your attacker goes free – this happened to people we interviewed, solely because of their perceived gender identity or sexual orientation.”

HRW interviewed 45 LGBT people in Lilongwe and Blantyre as well as lawyers, activists, and government representatives.

Researchers found a number of cases in which police arbitrarily arrested and detained transgender people and, in some cases, physically assaulted them. Some medical professionals denied people services based on their sexual orientation or gender identity.

Re-affirmed a moratorium: Tembenuys

Sections 153 and 156 of the country’s Penal Code prohibit “unnatural offenses” and “indecent practices between males”.

After a high-profile arrest and conviction in 2010 that resulted in international condemnation, the Minister of Justice and Constitutional Affairs Samuel Tembenu, in 2012, issued a moratorium on arrests and prosecutions for consensual homosexual acts.

In December 2015, Tembenu reaffirmed the 2012 moratorium but a year later, following successful litigation initiated by Christian religious leaders, the Mzuzu High Court issued an order suspending the moratorium pending judicial review.

As the law stands, adult consensual same-sex conduct is punishable by up to 14 years in prison for men and five years for women.

HRW found that people whose gender expression differs from social expectations, including transgender people whom the police and public perceive as lesbian or gay, appear most likely to be targeted.

Olivia, a transgender woman, told HRW that a mob assaulted her friend, also a transgender woman, in a market in Lilongwe. Rather than arresting the attackers, the police arrested her friend because they suspected she was “gay.”

Then they came looking for Olivia, but she was not home, so they arrested her father.

“I went to the police station to look for him and when I arrived, three police officers took me into a small office inside the police station to question me,” said Olivia. “One of the officers said that because of the way I look and dress, I must be gay. They started slapping and punching me, forcing me to confess that I am ‘gay.’”

HRW spoke to several people who had been denied medical care because of their appearance and gender identity.

Eric, a transgender man, was beaten up for being a “lesbian.” When his friend took him to the hospital, nurses refused to treat him.

“I was given panados [pain relief tablets] but no other medication, no x-rays or checking of anything else – in fact the nurses said I should come back the next day dressed like a proper lady and only then would they give me proper treatment,” he said.

Transgender women and men who have sex with men have been denied HIV tests and treatments by nurses in public hospitals.

HRW was told several stories of nurses calling their colleagues into a treatment room to laugh at someone who had come in to be tested for HIV, and then refusing to administer the tests.

Malawian authorities’ lack of willingness to repeal the anti-homosexuality laws inhibits people from seeking services, including HIV prevention, testing, and treatment, and compromises their right to the highest attainable standard of health.

It is well-established that punitive legal environments constitute a significant barrier to access to sexual health treatment and services for gay and bisexual men and other men who have sex with men.

HRW research suggests that transgender people experience the same barriers.

Malawi should decriminalise consensual same-sex conduct to ensure the safety and protection of all its citizens.

“Discrimination against LGBT people is rife in Malawi and is creating an atmosphere in which some of its most vulnerable citizens are afraid to seek out police assistance or potentially life-saving medical care,” Isaac said.

“The Malawi Government should make sure that all of its citizens can live safely and free from persecution.”—HRW


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