The Centre for Human Rights and Rehabilitation (CHRR), Centre for the Development of People (Cedep) and Nyasa Rainbow Alliance have asked government to annul laws that criminalise consensual same-sex conduct.
A joint statement issued on the sidelines of World Aids Day signed by CHRR director Michael Kaiyatsa, Cedep director Gift Trapence and Nyasa Rainbow Alliance director Eric Sambisa yesterday said such laws are blocking effective responses to HIV among key populations.
Reads the statement in part: “We observe that discriminatory laws such as sections 153 [a], 156 [a] and 137 [a] of the Penal Code, which are used to criminalise consensual sex between adults of the same sex drive key populations underground.
“This makes it harder for service providers and others to reach them with potentially life-saving HIV and Aids prevention, testing and treatment services.”
Government recognises members of the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community as key populations in the HIV and Aids national programming as part of its strategy in addressing the epidemic.
According to the 2020- 2025 National Strategic Plan for HIV and Aids, seven percent of men who have sex with other men are living with HIV in Malawi, a drop from 21 percent about 10 years ago.
But while commending government for including 1.25 million lubricants annually in the HIV national strategy, the organisations feel such interventions are likely to achieve less if laws criminalising such groups are not repealed.
Therefore , the organizations are recommending that Parliament should repeal all provisions in the Penal Code that criminalise consensual same-sex conduct and sex work.
They also call on government to abide by its 2012 commitment and decriminalise consensual same-sex conduct.
The trio also wants the Malawi Human Rights Commission (MHRC) to get more involved in investigating alleged abuses of the LGBTI community.
“MHRC should ensure that its inquiry on LGBTI issues in Malawi provides information on rights abuses of LGBTIQ people and make concrete recommendations to government to improve their situation,” further reads the statement.
The organisations also argue that the punitive laws put members of the LGBTI community at risk of contracting HIV since they are not able to access critical health services.
In a written response, Minister of Information Gospel Kazako, who is also the official government spokesperson, said the recommendations made by the three organisations require a collective agreement on how to proceed at national level.
Said Kazako: “This means that Malawians have to be consulted and take a position since the subject borders on alteration of the existing laws. This will likely require a referendum.”
When asked if the Malawi Law Commission ever initiated a review process of the laws, deputy director of law reforms Robert Kandulu casted doubts that they have ever carried out such a programme.
However, he asked for more time to check files saying sometimes they receive submissions, but due to funding constraints, such submissions are not pursued.
In 2012, the Ministry of Justice issued a moratorium on arrests and prosecutions for consensual homosexual acts. However, a 2016 High Court order suspended the moratorium pending judicial review by the Constitutional Court.
But when asked about
the status of the issue, Solicitor General Reyneck Matemba referred the matter to Ministry of Justice spokesperson PiriraniMasanjala who was yet to respond to our questionnaire.
The moratorium goes back to 2010 on the conviction of Steven Monjeza and Tiwonge Chimbalanga who were arrested for so-called unnatur a l o f f ence s and indecent practices between males under sections 153 and 156 of the Penal Code.
The two were sentenced to 14 years in prison. However, former president Bingu wa Mutharika pardoned them in May 2010 on humanitarian grounds following condemnation by the international community.