Malawi: Condemnation of Country's Discriminatory Laws

PRESS RELEASE BY 47 INTERNATIONAL ORGANISATIONS:

Civil society organisations have expressed strong opposition to the imprisonment of Steven Monjeza and Tiwonge Chimbalanga, a gay couple, in Malawi. More than 40 African civil society organisations have called for the immediate release of this couple, and for the repeal of discriminatory laws against same-sex relationships.

We, the undersigned organizations, write to express our deep concern at the imprisonment and prosecution of Steven Monjeza and Tiwonge Chimbalanga under provisions of Malawi's penal code criminalizing private sexual behavior. We further call on Malawian authorities to drop all charges against both men and repeal sections 153 and 156 of the penal law.

On 28 December 2009, police officers arrested Steven Monjeza, 26, and Tiwonge Chimbalanga, 20, at their home charging them under sections 153 and 156 of the Malawian penal code for "unnatural offences" and "indecent practices between males." This happened two days after Monjeza and Chimbalanga conducted a traditional engagement ceremony, an event that was widely reported in the Malawian press. On 6 January 2010, they were taken to Queen Elizabeth Central Hospital where Chimbalanga was forced to undergo a medical examination ostensibly to ascertain whether he had sexual relations with another man. The following day both men were subjected to a psychiatric evaluation. They are being held in Chichiri Prison in Blantyre and have been denied bail by a Magistrate Court. Despite critical constitutional and legal issues raised by their lawyers in the High Court and to the Chief Justice as a Constitutional Court issue, the criminal trial continues. The penalty if they are found guilty is up to the maximum of 14 years in prison with hard labour.

The government has to prove with evidence the charges against Monjeza and Chimbalanga. Regardless of whether they are accurate, the prosecution has caused a widespread fear among persons engaged in same-sex relations-a group the Malawian government has recognized is vulnerable to discrimination and critical to its efforts to effectively respond to the HIV epidemic. The National HIV/AIDS Policy states: "Government and partners shall put in place mechanisms to ensure that HIV/AIDS/STI prevention, treatment, care and support and impact mitigation services can be accessed by all without discrimination, including [persons engaged in same sex sexual relations]. Dr. Mary Shawa, the Principal Secretary for Nutrition, HIV and AIDS in the President's Office reportedly acknowledged the need to "incorporate a human rights approach in the delivery of HIV and AIDS services to men who have sexual intercourse with men." She further asked men who have sex with men (MSM) to come out in the open in order to assist in HIV prevention efforts. This cannot be done given recent statements by governmental officials denouncing MSM, which has served to further drive this already vulnerable community further underground.

The importance of reaching out to persons having same-sex relations as a critical component of the response to HIV has been well-recognised by leading medical institutions as well as UNAIDS, UNDP and the World Health Organisation. According to an August 2009 research paper published in the Lancet, the world's leading medical journal, "The HIV/AIDS community now has considerable challenges in clarifying and addressing the needs of [men having sex with men (MSM)] in sub-Saharan Africa political and social hostility are endemic. An effective response to HIV/AIDS requires improved strategic information about all risk groups, including MSM. The belated response to MSM with HIV infection needs rapid and sustained national and international commitment to the development of appropriate interventions and action to reduce structural and social barriers to make these accessible."

Finally, the arrest and prosecution of Monjeza and Chimbalanga not only undermines the response to HIV but is a violation of the fundamental rights enshrined in the Malawian Constitution. Specifically, the Malawian Constitution guarantees that every person has the right to liberty, human dignity, freedom and security of the person, and to be free from discrimination on all grounds. These rights guaranteed under the Constitution are reinforced under Malawi's regional and international legal obligations. The African Charter on Human and Peoples' Rights, ratified by Malawi in 1989, prohibits discrimination' provides for the right to equality; dignity; and liberty. Similarly, the International Covenant on Civil and Political Rights which Malawi has also ratified provides for freedom from discrimination; equality; liberty; and dignity.

Sections 153 and 156 of the Penal Code undermine the response to HIV and violate the fundamental rights guaranteed under Malawi's legal obligations. We call on the Malawi government to release and drop all charges against Monjeza and Chimbalanga and repeal sections 153 and 156.

Endorsed by:

National Women's Lobby and Rights Group, Malawi

Umunthu Foundation, Malawi

Centre for Human Rights and Rehabilitation, Malawi

Centre for the Development of People, Malawi

SCARJOV, Angola

Botswana Treatment Literacy Coalition

Association Nationale des Séropositifs et Sidéens (ANSS), Burundi

HALT-SIDA, Democratic Republic of Congo

Protection Enfants SIDA, Democratic Republic of Congo

Sambatra Izay Salama (SISAL) Madagascar

Collectif Arc en Ciel, Mauritius

Prevention Information Lutte Contre le Sida (PILS), Mauritius

Associaçao Mulher, Lei e Desenvolvimento (MULEIDE), Mozambique

Legal Assistance Centre, Namibia

The Rainbow Project, Namibia

Women's Solidarity Network, Namibia

Centre for the Study of AIDS, University of Pretoria, South Africa

Artists for a New South Africa

Community Health Media Trust, South Africa

Engender, South Africa

Intersex South Africa

Out in Africa SA Gay and Lesbian Film Festival

The Lesbian and Gay Equality Project, South Africa

Unit for Social Behavioural Studies in HIV/AIDS and Health, University of South Africa

Women and HIV/AIDS Gauge, South Africa

Swaziland for Positive Living (SWAPOL)

Women and Law in Southern Africa, Swaziland

Children's Dignity Forum, Tanzania

Children Education Society (CHESO), Tanzania

Copperbelt Health Education Project, Zambia

Network of Zimbabwean Positive Women (NZPW+)

Gays and Lesbians of Zimbabwe (GALZ)

RAVANE+ (People Living with HIV Network in the Indian Ocean Region)

AIDS & Rights Alliance for Southern Africa (ARASA)

African Council of AIDS Service Organizations (AfriCASO)

AIDS & Rights Alliance for Southern Africa (ARASA)

AIDS Legal Network, Southern Africa

Behind the Mask, Africa

Southern Africa Treatment Access Movement (SATAMO)

Relevant Links
Southern Africa
Malawi
Human Rights
Legal Affairs
NGO
Southern Africa HIV and AIDS Dissemination Service (SAfAIDS)

Southern Africa Litigation Centre (SALC)

International Treatment Preparedness Coalition (ITPC) Collaborative Fund, Africa Programme

Treatment Action Group

ATHENA

International Gay and Lesbian Human Rights Commission (IGLHRC)

AIDS-Free World

Black Gay Men's Network, United States

Canadian HIV/AIDS Legal Network

Center for Reproductive Rights

Friends of the Treatment Action Campaign, United Kingdom

Heartland Alliance for Human Needs and Human Rights, United States

International Council of AIDS Service Organizations (ICASO)

Physicians for Human Rights

Positive Voice, Greece

US Positive Women's Network

Women Organized to Respond to Life Threatening Diseases (WORLD)

Andrew Feinstein, former Member of Parliament, African National Congress

Jape Heath, International Network of Religious Leaders Living with or Personally Affected by HIV or AIDS (INERELA)

Phyllis Orner, University of Cape Town, South Africa

Reverend Steven Lottering, South Africa