On December 26, 2009, Steven Monjeza, 26, and Tiwonge Chimbalanga, 20, conducted a traditional engagement ceremony (chinkhoswe, in Chichewa) in the city of Blantyre. After newspapers reported on the chinkhoswe, police in Blantyre arrested Monjeza and Chimbalanga at their home on December 28, charging them with "unnatural offenses" and "indecent practices between males" under sections 153 and 156 of Malawi's criminal code.
Malawi's law criminalizing consensual homosexual conduct is a legacy of the country's colonial past. As Human Rights Watch has documented, British colonial rulers imposed laws regulating sexual and social conduct in dozens of countries in Africa, Asia and the Pacific. These laws are now often defended by Asian and African governments in the name of native culture and tradition. "These laws criminalizing consensual homosexual conduct are legacies of foreign rule, but they still have teeth," Nath said. "Malawi should rid itself of this disgraceful colonial relic."
Chapter IV of the Malawian constitution guarantees every person's right to liberty, dignity, and security of person. Article 20 prohibits discrimination on all grounds, and article 21 guarantees the right to privacy. Section 153 of the Malawian criminal code, which criminalizes consensual sexual conduct between adults, and section 156, which criminalizes "indecency" in both public and private, directly violates the right to privacy.
These criminal law sections are also contrary to international human rights standards. Specifically, article 2 of the African Charter on Human and People's Rights prohibits discrimination on all grounds; articles 3 and 19 secure for all the right to equality; and articles 5 and 6 guarantee the right to dignity and liberty.
The United Nations Human Rights Committee, which authoritatively interprets the International Covenant on Civil and Political Rights (ICCPR) and evaluates the compliance of states with its provisions, found in the 1994 case of Toonen v. Australia that laws criminalizing consensual homosexual conduct among adults violate the covenant's protections of private life and against discrimination.
Forensic medical examinations to "prove" homosexual conduct are archaic and discredited, and when conducted without consent in conditions of detention, may constitute torture. Article 19(5) of Malawi's constitution reads: "No person shall be subjected to medical or scientific experimentation without his or her consent." Article 7 of the ICCPR protects against torture and cruel or degrading treatment; it specifically guarantees that "no one shall be subjected without his free consent to medical or scientific experimentation."
Source: Human Rights Watch
The Text of the nternational Covenant on Civil and Political Rights (ICCPR) can be found here.
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