Print options

November 08, 2012

Suspension of Anti-gay Law Draws Mixed Reaction in Malawi

by Lameck Masina

Legal authorities and civil rights leaders in Malawi are reacting differently to the government’s suspension of laws that criminalize homosexuality. 

Government authorities say the country has temporarily suspended the country’s homosexuality laws until Malawians debate the matter in parliament.  This means that Malawi police will not arrest or prosecute anyone based on these laws. This has attracted a heated debate among Malawians.

Malawi Attorney General Ralph Kasambara announced the decision to suspend laws criminalizing homosexuality last Thursday, in the capital, Lilongwe.

He was speaking during the public debate aimed to find ways of reaching a national consensus on how Malawi should move forward in addressing the same-sex relationship issue.

Kasambara, who is also minister of justice, says the suspension of the laws will give Malawians an opportunity to debate the issue without interference from the executive branch.

The human rights organizations the Center for Development of People and the Center for Human Rights and Rehabilitation (CHRR) co-sponsored the debate.

"All in all, we are so much pleased that we are going in the right direction," said Undule Mwakasungula, the executive director for the CHRR. "As you are aware that there is so much homophobia against the gay community.  And, the community thinks they [homosexuals] don’t have rights. They don’t have free space in public life, so really it’s a move in the right direction."

The same-sex relationship issue has been a thorn in Malawi’s affairs, especially during the late Bingu wa Mutharika's government, when international donors cited the lack of sexual minority rights as one of the reasons some of them had frozen their aid.

But Mwakasungula rejected suggestions the government might have taken the stand to meet conditional terms of some donor aid.

"This is not about Western countries," he said. "This is about personal choice; sexual orientation. And, if you look deeper into some of the research which have been done, gay communities are everywhere in the world; blacks, whites, Indians, coloreds and the like. So let’s move away from issues that are going to divert the attention of addressing real problems.  This is about HIV and AIDS issues.  This is rights issue.”

However, the lawyers group the Malawi Law Society says only parliament has power to suspended laws.

“Any suspension of the applications of law must have the blessing of parliament," said John Gift Mwakhwawa, the president of the society. "No minister can verbally or over a written memorandum suspend the application of the law. It is amounting to the usurping the powers of the legislature. And, it is dangerous trend because next time one minister responsible for whatever laws will also wake up and suspend the application of those laws and we are creating a culture of impunity.”

Mwakhwawa says, although it is a fact that the existing anti-homosexual laws are not a part of the Malawi constitution, there is a need for government to follow procedures in dealing with the issue.

“The simple route to go," he said, "is to go to the constitutional court and say 'Do these provisions under our constitution stand the taste of constitutionalism of democracy or the standards that we are supposed to abide to, the international standards that are there?”

But observers express concerns that, in taking the matter to the constitutional court, there could be a delay because there are not enough judges in the country.  That, they say, makes it difficult to assemble three judges to sit as a constitution court.

Religious leaders are strongly against the suspension of the anti-gay laws.

"As a church, we were strongly against homosexuality. And, that’s no longer a secret because it was put on the papers and people heard about it.   So, up to now that is still the stand of the church in Malawi,” said Osborn Mbewe, the general secretary of Malawi Council of Churches.

Mbewe says the clergy are looking  to hear from parliament to hear from what it says on the matter before they take action.

The Malawi parliament is expected to begin a session on Monday, in the capital Lilongwe.  However, the issue on suspension of the homosexuality law does not appear to be on the agenda.