Alan Msosa is a research affiliate at the Centre on Law and Social Transformation. He is part of the Sexual and Reproductive Rights Lawfare (SRR) project and is currently a postdoctoral candidate at the University of York.
In this interview, Marit Tjelmeland and Alan Msosa discuss the current situation for LGBTQI+ rights in Malawi. This interview relates to the SRR project.
Malawi is one of many former British colonies in which homosexuality was criminalised with the aim of ‘Christianising’ the natives. A traditional wedding by Steven Monjeza and Tiwonge Chimbalanga, both legally identified as male, has triggered an unprecedented debate on whether the repressive laws are just. Monjeza and Chimbalanga were arrested, resulting in a dramatic court case in which they received a maximum sentence of 14 years imprisonment with hard labour. They were however released through a presidential pardon following intervention of the United Nations.
Malawi is an important case study for the understanding of how majority members of society deal with minority interests. In the case of LGBTQI+ rights, it is an opportunity to analyse how local African communities navigate universality of human rights when confronted with contested norms and values.
Praise and criticism for the new laws
While Malawians are deeply divided on whether to do away with the colonial laws criminalising same sex relations, the government is indecisive on the course of policy and law. For example, a moratorium on arrests of LGBTQI+ people initially announced in 2012 has been reaffirmed in 2014, suspended by the courts in 2016, and reaffirmed several times afterwards.
However, these steps towards progress are not without resistance. In 2015 the Marriage, Divorce and Family Relations Act came into law. Elements of the act were met with international praise (including by the United Nations) for raising the minimum age of marriage.[1] But the act has also been criticized for redefining ‘sex’ of a person to prohibit recognition of any change of gender from that assigned at birth.
Contextualizing the struggle for LGBTQI+ rights in Malawi
Whilst the struggle for LGBTQI+ rights in most of Europe focus on gaining the right to same-sex marriage, struggles in Malawi have focused on protecting the LGBTQI+ community from violence and access to HIV/AIDS services. In light of the fact that same-sex sexual activity carries a maximum sentence of 14 years, opening up for same-sex marriage would be a very radical change. Msosa explains that the fight for LGBTQI+ rights has to adjust to the context to focus on what is practically achievable for the moment.
Although the lack of marriage equality is not necessarily the focus of the fight for LGBTQI+ rights in Malawi, it is reflective of how anti-gay attitudes impact how ordinary people and institutions discriminate against the LGBT community. These anti-gay attitudes make it difficult for the LGBT community to be open about their sexual orientation and identity especially when accessing health services. Previous research has shown that inadequate access to health services among men who have sex with men (MSM) is detrimental to overall population health. This can seem paradoxical: on the one hand the Malawian government is seen as progressive in the HIV and AIDS response, but on the other it does little to eliminate repressive laws that impede access to HIV services among in MSM communities, whose HIV prevalence is twice that of the general population
Perceptions of LGBTQI+ rights in Malawi
A recent study suggested shows that over 90% of Malawians state they would not be comfortable having a gay neighbour, suggesting many would oppose radical strengthening of LGBTQI+ rights. This negative perception is usually tied to a fundamental lack of understanding about what it means to be LGBTQI+. For example, would Malawians feel uncomfortable having an intersex person as a neighbour in the same manner as a man who has sex with other men? How different are attitudes of urban population different from their rural counterparts? The anti-gay antipathy can also be a response to a context of fear, as many people still misunderstand homosexual men to be paedophiles and rapists.
Msosa further claims that rural areas are more tolerant to non-conforming sexual identities, as the community ethos of uMunthu dictates that hurting one community member means the whole community is hurt. Co-existence thus works as a foundation for tolerance. He argues that the role of communities in the struggle for LGBTQI+ rights needs to be re-thought, as community principles do not usually contradict the values of human rights, but rather exemplify human rights’ universality. Rural communities are not ignorant people, they have solutions to offer.
The fight for LGBT rights: a paradoxical approach
A quagmire can be seen in many aspects of the anti-LGBTQI+ movement. Religious values are cited as the reasons for anti-gay attitudes and yet as an argument for tolerance and universality in other contexts. Another paradox can be seen in the origin of the anti-gay laws: despite their origin in British colonialist laws, anti-LGBTQI+ movements frequently claim they promote Malawian values and cultural values.
Msosa argues that the claim of “Malawian values” being anti-LGBTQI+, is not an accurate reflection of Malawian society as a whole. He calls this the “elitist argument”, arguing that anti-gay attitudes are most prevalent among the societal elites and that the unwillingness to acknowledge LGBTQI+ rights is motivated by elites’ attempts to retain political power by manipulating views of the majority.
One approach to advancing LGBTQI+ rights has been trying to emphasize the distinction between non-consensual sex and consensual sex between adults. Highlighting this difference helps in distinguishing non-consensual same-sex sex, which ought to warrant criminalization, from consensual activities which the law should not intervene in. There is need to rethink the LGBTQI+ rights being demanded to pre-empt unclarified issues.
Fighting for rights in the courts
In Malawi, as in many countries where same sex-activities are criminalized, the battle for LGBTQI+ rights has mainly taken place in the courts. The case against the couple attempting a traditional wedding marked the beginning of this court centred battle for LGBTQI+ rights. In 2014, the Malawian High Court were considering three cases of (non-consensual) sodomy, and decided to review constitutionality of one section of the anti-gay laws. The state – presumably in fear of a judgment for unconstitutionality – has been trying to challenge the cases on technicalities. The cases are yet to be decided.
In 2015, a politician called for all homosexuals to be killed following the first-ever television interview of an LGBTQI+ Malawian. The politician was summoned to answer penal charges of inciting others to contravene the law. However, the chief prosecutor seized and discontinued the case, a move that was aimed at averting a court decision that would have favoured LGBTQI+ protection. This shows that the courts are yet to meaningfully change the law towards LGBTQI+ rights. However, the recent decriminalisation of homosexuality in India, demonstrates that there is often a long road towards major legal changes through litigation.[2]
Although the main focus in Malawian LGBTQI+ mobilization has been on litigation, Msosa points out that there has been some improvement in LGBTQI+ rights locally as with the global LGBT rights movement. In recent years, there has been increase in international support for LGBTQI+ rights in Malawi. There is also a rapid increase in establishment of LGBT-related groups. Malawi is also being featured in global research on LGBT rights and attitudes towards LGBT rights.
What is next for Malawi?
Although Malawi have come a long way in decriminalising homosexuality and in their progressive HIV/AIDS policies, there is still a long way to go. There is need to educate the public on the diversity of non-conforming sexual and gender identities order to promote public awareness for greater tolerance and coexistence.
There is need for deeper understanding of the attitudes of Malawians towards non-conforming sexualities as well as LGBTQI+ rights. Without such understanding, the proposed solutions may miss the critical drivers of homophobia in the Malawian context.
Strengthening of LGBTQI+ organisations and communities will empower them to advocate for issues that they see as priority. Decriminalisation of anti-gay laws and social inclusion will remain high in the agenda.
Msosa points out that although it is true that there is homophobia in Malawian society, there is an opportunity to learn from instances where tolerance and inclusion exist. There is need to explore how uMunthu can improve political and social attitudes towards LGBTQI+ people.
[1] https://www.ibtimes.com/malawi-gay-rights-new-marriage-law-further-criminalizes-lgbt-relationships-identities-1886670
[2] https://www.cmi.no/publications/6678-love-in-law-the-indian-supreme-court-decides-in