UPDATE: 23.09.2022: The High Court in Malawi has at the last minute postponed the hearing for the second time in the space of two months, citing “logistical challenges”. No new date has been provided. The matter has now dragged on for five years.
An LGBTIQ+ rights group in Malawi is taking the government to the Constitutional Court over its refusal to register the organisation.
From 26 to 30 September, the High Court of Malawi, sitting as a Constitutional Court, is set to hear the case brought by members of Nyasa Rainbow Alliance (NRA) challenging the refusal by the Ministry of Justice, through its office of the Registrar General, to register NRA.
NRA advocates for the rights of LGBTIQ+ persons in Malawi, including through the provision of support and referral to welfare and HIV services.
The Board of Trustees of NRA applied in July 2016 for the organisation to be registered as a Trust under the laws of Malawi. On 18 May 2017, the Ministry of Justice’s Department of Registrar General in Malawi sent a letter to NRA rejecting the proposed registration.
The Registrar General said it could not register the group because the country’s Penal Code criminalises consensual sex between same-sex persons and that NRA’s membership engages in such unlawful practices.
The Southern Africa Litigation Centre (SALC), which is supporting the NRA’s case, pointed out that the State did not provide any evidence about NRA members’ sexual activity.
Sections 137A, 153 and 156 of the Penal Code outlaw same-sex sexual acts in Malawi with penalties of up to 14 years in prison.
“The case brought before the High Court is not for decriminalising same-sex sexual conduct but for registering the NRA as an organisation that strives to protect all persons’ rights and fundamental freedoms, including LGBTIQ+ individuals,” said SALC in a statement.
While the Penal Code prohibits same-sex sexual conduct or acts it does not criminalise individuals solely based on their sexual orientation or gender identity.
A similar legal bid in Eswatini to force that country’s government to register the organisation Eswatini Sexual and Gender Minorities (ESGM) was disappointingly rejected by the Eswatini High Court in April.
In its submissions, NRA argues that the refusal to register the organisation violates the human rights of LGBTIQ+ people.
These rights include, amongst many others, the right to equal treatment and protection before the law, the right not to be discriminated against based on sexual orientation, gender identity and expression; the right to freedom of association, assembly, and expression, and to be treated in a manner that respects their dignity.
In June last year, activists successfully hosted Malawi’s first-ever public LGBTIQ+ Pride event with a march in the streets of the capital, Lilongwe.