Malawi criminalizes lesbian sex

The International Commission of Jurists (ICJ) expresses grave disappointment at Malawi’s recent enactment of a law criminalizing sexual relations between women. Such a law is an affront to human dignity and seriously undermines Malawi’s human rights commitments under international law.

The ICJ urges that the Parliament undertake an immediate review with an eye to repealing all laws that currently criminalize sexual activity on the basis of the sex of the partners.

In December 2010, the Parliament passed a bill amending the Penal Code of Malawi. In late January 2011, President Bingu Wa Mutharika assented to the bill, thus completing its enactment into law. The new Section 137A, captioned “Indecent practices between females,” provides that any female person who, whether in public or private, commits “any act of gross indecency with another female” shall be guilty of an offence and liable to a prison term of five years.

“The criminalization of private sexual activity between consenting adults of the same sex, whether women or men, runs counter to Malawi’s obligations to protect the human rights of all citizens of Malawi, regardless of sexual orientation,” said Alli Jernow, senior legal adviser for the Sexual Orientation and Gender Identity Project. “If used to prosecute women for their private consensual sexual relationships, the new law threatens the universal rights to privacy and freedom from discrimination.”

Speaking in Geneva last September, the UN Secretary-General Ban Ki-moon stated, “Laws criminalizing people on grounds of sexual orientation and gender identity violate the principle of non-discrimination. They also fuel violence, help to legitimize homophobia and contribute to a climate of hate.”

The Republic of Malawi has turned a deaf ear to the calls of UN Secretary-General Ban Kimoon, High Commissioner for Human Rights Navanethem Pillay, and Archbishop Desmond Tutu and many others. Indecent practices between males are already criminalized in Malawi. Last May Tionge Chimbalanga and Steven Monjeza were convicted of this offense and were sentenced to 14 years in prison before receiving a presidential pardon. By adding “indecent practices between females” to the Penal Code, the Republic of Malawi has not only acted contrary to its own human rights obligations, it has contributed to the severe stigmatization and discrimination experienced by gay and lesbian Malawians. All laws criminalizing consensual sexual activity between adult same-sex partners should be repealed.

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