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March 20, 2014

Malawi High Court to Evaluate Anti-Homosexuality Laws

By Dawes Cooke

Later this week, the Malawi High Court is expected to make an announcement with important implication for LGBT rights in Africa, where several countries have recently stiffened homophobic laws.

As a result of a lawsuit by a group of LGBT activists, the Court is reviewing the conviction of three men arrested under Malawi’s anti-homosexuality laws. The group, backed by the Malawi Law Society and the United Nations’ AIDS task force, argues that the laws violate the guarantees of equality and non-discrimination in the country’s constitution.

Like several other African countries, Malawi has made discriminatory colonial-era laws prohibiting “unnatural” sexual relations even more draconian. Malawi’s laws are some of the harshest in Africa, and as in neighboring Zambia, violators can face up to 14 years in prison. Additionally, the convicted face the possibility of corporal punishment, depending on which of the three anti-homosexuality laws are enforced.

But section 20 of Malawi’s constitution prohibits “discrimination of persons in any form,” regardless of race, gender, political opinion, or any other status. Representatives of the government have argued that anti-LGBT laws are not discriminatory in that they punish acts, not identities. However, in 2012, responding to pressure from international donors and from groups within Malawi—including LGBT activists and the government-sponsored Malawi Human Rights Commission—President Joyce Banda suspended the anti-homosexuality laws until they could be reviewed by the High Court.

Fortunately, Malawi officials are not united in support of the draconian laws. High Court Judge Zione Ntaba has argued “history has shown that it is around discussions that great things have happened…The discussion of the whole concept of minority rights, whether racial, tribal, sexual, physical or otherwise, needs to start.”

If the High Court finds the anti-homosexuality laws unconstitutional, it would set an important precedent. Malawi is one of a number of countries violating the constitutionally guaranteed rights of their LGBT citizens. For one example, Uganda’s controversial Anti-Homosexuality Act threatens “repeat offenders” with life in jail in defiance of Uganda’s constitution, which guarantees equality under the law to all people.

The defeat of Malawi’s anti-homosexuality laws would be a step towards stemming the rising tide of homophobia in Africa.