STATEMENT BY MINISTER OF JUSTICE AND CONSTITUTIONAL AFFAIRS ON ARRESTS CONCERNING HOMOSEXUAL ACTS

This statement is issued in response to the recent news in the print and electronic media alleging that the Police had arrested 19 year old Curthbert Kulemera and 33 year old Kelvin Gonani on 7th December on suspicion that they engaged in homosexual acts.

The Ministry of Justice wishes to reiterate Government’s commitment to the observance of human rights,   as   enshrined   in   our   Constitution.     The   Constitution   of   Malawi represents the collective wisdom and values of the people of Malawi.   The Constitution, being the basic law, provides the framework that guides the proper implementation of the aspirations of the people of Malawi through the various statutory laws that Parliament enacts.

Malawi as a member of the   international   community   is   also committed   to   adhere   to   universally accepted human rights standards. The   Government, therefore, acknowledges   the view   expressed by International Human Rights bodies that the inclusion of offences prohibiting homosexuality on our statute books within our legislation may be at variance with the views held by such bodies. Consequently, the Government has committed itself to review the penal laws on homosexuality under the Penal Code, but this has to be done in consultation with the people of Malawi as prescribed by the Constitution. This position was clearly stated by Government before the United Nations and African Union treaty bodies.

Further in line with this commitment, Government has imposed a moratorium on arrests and prosecution of consensual homosexual acts.   Government has also consistently invited civil society to carry out intensive sensitization campaigns on gay rights, as the concept is alien to Malawian culture, since the previous two attempts by to change the law met with stiff resistance from the general public.

Government has noted the concerns raised by interested parties and international bodies regarding the arrest of the two men. Government wishes to assure those concerned that the Ministry of Justice and Constitutional Affairs has carried out investigations into the arrest of the two men. The findings of these investigations do not disclose a case of two consenting male adults indulging in consensual sex, hence the Police’s diligence to require medical examination in order to establish the truth. The Ministry has not detected any prejudice or malice on the part of the conduct of the Police.

Further, Government wishes to emphasize that the circumstances of this case required the state to provide protective custody to both the alleged victim and suspect. It is important, therefore, that due process had to be allowed to take its course and the expectation was that all interested parties would desist from making pronouncements   that   are   either   unduly   conclusive   or   would,   effectively,   jeopardize the proper conclusion of the matter.

In its efforts to review the law for compliance with the Constitution and Malawi’s international obligations, Government will immediately engage its agencies, namely the Law Commission and the Malawi Human Rights Commission so that all the cultural sensitivities regarding this issue are properly addressed. As this process is being undertaken, Government is appealing to all those concerned especially the international community to fully appreciate that this is a highly sensitive matter that requires understanding and accommodation of diverse views before it is fully resolved.

Meanwhile, as Government is addressing the specific incident that occurred in Lilongwe, it has noted with concern that comments coming from some commentators from both within and without show lack of appreciation and respect of Malawi’s culture and traditions as well as the challenges which Government is facing in resolving this issue. While Government welcomes an open discussion of the issue by all concerned, the use of inflammatory and derogatory language being made by some of those contributing to the discussion is counter-productive and serves only to divert proper focus on the issue at hand.

Finally, Government is re-affirming its commitment to observe the moratorium. In light of this commitment the two gentlemen have been released from custody and the charges dropped.

Samuel Tembenu

Minister of Justice and Constitutional Affairs