Malawi appears to be following
Uganda’s and Rwanda’s lead on homophobia, with the arrest of two Malawian men, Steven
Monjeza, 26, and Tiwonge Chimbalanga, 20, charged with “carnal knowledge of a person
against the order of nature” (article 153) and committing an act of gross indecency
with another male person (article 156). The
two men, arrested on December 28, conducted a traditional engagement ceremony (Chinkhowe)
two days before their arrest, deemed by the authorities as evidence of behavior
contrary to sections 153 and 156 of the Malawi Penal Code. The two men,
reportedly beaten by police while in custody, are still being
held in Chichiri Prison in Blantyre, Malawi.

Anti-gay sentiment has been
building in Malawi for several months. Last year an anti-gay campaign led the Malawi National
Assembly to consider passing a constitutional amendment banning homosexuality.  Although no amendment was made, several
months later we have witnessed the arrest of Monjeza and Chimbalanga. According
to Chrispine Gwalawala Sibande, a lawyer with the Malawi Human Rights
Commission, “the arrest has brought fear among those openly gay and those the
government suspects to be gay”. Sibande notes that, in addition to the arrest
of Monjeza and Chimbalanga, others have been targeted. Police have raided the
offices of NGO, Center for
the Development of People (CEDEP), whose work focuses on the rights of minority
groups, such as prisoners, sex workers, people living with HIV/AIDS and men
having sex with men. Not only have their HIV/AIDS awareness-raising materials
been confiscated, but two of CEDEP’s officers have been arrested under
accusations of “supporting gays”. With concern, Sibande states that we are yet
to see what charges they will face in the Malawi courts.

According to most reports,
Chimbalanga identifies as a woman and has been referred to by most press as the
“bride”. However, the idea of having a fruitful discussion about transgender
identity in Malawi seems far from likely given the current climate. Both Monjeza
and Chimbalanga have since been denied bail, despite the fact that bail
applications have previously been granted in cases where the accused were
charged with murder or treason. Chief Resident Magistrate Nyakwawa Usiwausiwa’s
decision to deny bail was based partly on the State’s request
for more time to gather evidence, justified also in light of security concerns
for the accused. The Magistrate did, however, concede
that the state should have done a thorough investigation before arresting the
accused. The state prosecutors now have until January 10, after which the court
will consider granting the accused bail, with or without conditions.

Earlier this week, police even attempted to force
the men to undergo anal examinations to establish whether the men had
“consummated” their engagement. This demeaning attempt to further abrogate the
rights of the accused was aborted when the hospital’s doctor was unavailable to
examine them. It is unclear whether the examinations have since gone ahead. Several
medical experts, including Dr. Lorna Marin,
Chief Dr. Lorna
Martin, Chief Specialist/Head of Division Forensic Medicine & Toxicology,
University of Cape Town [in a letter to Human Rights Watch] and Dr. Vincent
Iacopino, Senior Medical Advisor for Physicians for Human Rights in a communication with the International Gay and Lesbian
Human Rights Commission, have affirmed that
such examinations would serve no value in identifying whether consensual anal
sex had actually taken place. Further as Malawi legal expert Justin Dzonzi,
Executive Director of Justice Link commented, “Under the constitution a Malawian
cannot be forced to go through a scientific test or examination without his or
her consent”. Rather, Section 42 of the Constitution of Malawi prevents the
state from forcing any person under arrest to say or do anything that amounts
to evidence against his conviction.

At this stage, it is unclear what
trajectory this case will take. Amnesty International has already condemned the
arrest and called for the unconditional release of the two men. According to
Sibande, the case should go before the High Court of Malawi to test the
constitutionality of sections 153 and 156 of the Penal Code. Sibande notes that
the Constitution of Malawi protects freedom of conscience and the rights to privacy and
non-discrimination. Therefore, criminalizing homosexuality is directly contrary
to the Constitution and the provisions should be declared invalid. At this
stage, lawyers for Monjeza and Chimbalanga
have filed papers with the Chief Justice of the High Court calling for the
Chief Justice to declare the case as concerning constitutional interpretation.
If accepted by the Chief Justice, he will be required to form a three-judge
“Constitutional Court” to consider the constitutional status of sections 153
and 156 of the under which Monjeza and Chimbalanga have been charged. In response to the
lawyers’ petition, the Chief Justice has called for more evidence and is likely
to make a decision early next week, either January 11 or 12. Meanwhile, Sibande
warns, the Magistrate’s Court has set January 11 as the “day to start hearing
evidence from the witnesses to be paraded by the prosecutors before the court.”

Clearly, the following days are
pivotal in determining the direction of this case, the fate of Monjeza and
Chimbalanga and the human rights of all homosexuals in Malawi. In the words of
Sibande, “I call upon all of you to be with us Malawians as time has come to
test our oppressive criminal provisions in the High Court.”