Steven Monjeza and Tiwonge Chimbalanga made international headlines in 2010 and 2011 when they were arrested under Malawi’s anti-gay laws.
Laws prohibiting consensual same-sex relations in Malawi foster a climate of fear and fuel violence and discrimination, Human Rights Watch said in a new report, released on Friday.
The report, Let Posterity Judge: Violence and Discrimination against LGBT People in Malawi, shows how the lack of clarity about the legal status of same-sex conduct leaves LGBT people vulnerable to arbitrary arrests, physical violence, and routine discrimination.
According to Human Rights Watch, the punitive legal environment combined with social stigma allows police abuse to go unchecked and prevents many lesbian, gay, bisexual, and transgender (LGBT) people from reporting violence or getting medical care.
While the justice minister issued a moratorium on arrests for adult consensual same-sex conduct in 2012, there are divergent views about its legality. “The law criminalising same-sex conduct contributes to a perception that LGBT people are fair game and can be assaulted without any consequences for the attacker,” commented Wendy Isaack, LGBT rights researcher at Human Rights Watch.
“Imagine being beaten up in the street, reporting to the police, and being arrested yourself while your attacker goes free – this happened to people we interviewed, solely because of their perceived gender identity or sexual orientation,” said Isaack.
Human Rights Watch interviewed 45 LGBT people in Lilongwe and Blantyre as well as lawyers, activists, and government representatives. Researchers found a number of cases in which police arbitrarily arrested and detained transgender people and, in some cases, physically assaulted them. Some medical professionals denied people services based on their sexual orientation or gender identity.
Sections 153 and 156 of Malawi’s Criminal Code prohibit “unnatural offenses” and “indecent practices between males.” After the high-profile arrest and conviction in 2010 of Steven Monjeza and Tiwonge Chimbalanga that resulted in international condemnation, the Ministry of Justice and Constitutional Affairs, in 2012, issued a moratorium on arrests and prosecutions for consensual homosexual acts.
In December 2015, justice minister Samuel Tembenu reaffirmed the 2012 moratorium but a year later, following successful litigation initiated by Christian religious leaders, the Mzuzu High Court issued an order suspending the moratorium pending judicial review.
As the law stands, adult consensual same-sex conduct is punishable by up to 14 years in prison for men and five years for women.
Human Rights Watch found that people whose gender expression differs from social expectations, including transgender people whom the police and public perceive as lesbian or gay, appear most likely to be targeted.
Olivia, a transgender woman, told Human Rights Watch that a mob assaulted her friend, also a transgender woman, in a market in Lilongwe. Rather than arresting the attackers, the police arrested her friend because they suspected she was “gay.” Then they came looking for Olivia, but she wasn’t home, so they arrested her father.
“I went to the police station to look for him and when I arrived, three police officers took me into a small office inside the police station to question me,” said Olivia. “One of the officers said that because of the way I look and dress, I must be gay. They started slapping and punching me, forcing me to confess that I am ‘gay.’”
Human Rights Watch spoke to several people who had been denied medical care because of their appearance and gender identity. Eric, a transgender man, was beaten up for being a “lesbian.” When his friend took him to the hospital, nurses refused to treat him. “I was given panados [pain relief tablets] but no other medication, no x-rays or checking of anything else – in fact the nurses said I should come back the next day dressed like a proper lady and only then will they give me proper treatment.”
Human Rights Watch reported that transgender women and men who have sex with men have been denied HIV tests and treatments by nurses in public hospitals. It was told several stories of nurses calling their colleagues into a treatment room to laugh at someone who had come in to be tested for HIV, and then refusing to administer the tests.
“Discrimination against LGBT people is rife in Malawi and is creating an atmosphere in which some of its most vulnerable citizens are afraid to seek out police assistance or potentially life-saving medical care,” said Isaack. “The Malawi government should make sure that all of its citizens can live safely and free from persecution.”
To read the full report, click here.