There are days when I am not proud to be an African. Yesterday, Thursday, 20 May 2010, was one of those days. Yesterday, Blantyre Magistrate Nyakwawa Usiwa-Usiwa sentenced Steven Monjeza and Tiwonge Chimbalanga to 14 years in prison with hard labour. They hadn’t killed anyone, or robbed or raped anyone or even hurt anyone. All they had done was to show their love for each other by engaging in a traditional engagement ceremony.

On 28 December 2009, police officers in Malawi arrested Steven Monjeza and Tiwonge Chimbalanga at their home, charging them under sections 153 and 156 of the Penal code criminalizing carnal knowledge against the order of nature and gross indecency between males. This happened two days after Monjeza and Chimbalanga conducted a traditional engagement ceremony, an event that was widely reported in the Malawian press. On 6 January 2010, they were taken to Queen Elizabeth Central Hospital where Chimbalanga was forced to undergo a medical examination ostensibly to ascertain whether he had sexual relations with another man. The following day both men were subjected to a psychiatric evaluation.

Since their arrest they have been held in the Chichiri Prison in Blantyre, notorious for its overcrowding and dire conditions. They were denied bail by the Magistrates Court.

This week the Magistrates Court found them guilty of all charges and sentenced them to the maximum sentence of 14 years in prison with hard labour. Whilst passing sentence Magistrate Usiwa-Usiwa remarked that:

“I cannot imagine more aggravated sodomy than where the perpetrators go on to seek heroism, without any remorse, in public and think of corrupting the mind of the whole nation with a chinkhoswe (engagement) ceremony. For that I shall pass a scaring (sic) sentence so that the public must also be protected from others who may be tempted to emulate their horrendous example.”

The conviction and persecution of Monjeza and Chimbalanga has caused a widespread fear among persons engaged in same-sex relations—a group the Malawian government has recognized is vulnerable to discrimination and critical to its efforts to effectively respond to the HIV epidemic. The National HIV/AIDS Policy states:

“Government and partners shall put in place mechanisms to ensure that HIV/AIDS/STI prevention, treatment, care and support and impact mitigation services can be accessed by all without discrimination, including [persons engaged in same sex sexual relations].”

A senior government official reportedly acknowledged the need to “incorporate a human rights approach in the delivery of HIV and AIDS services to…men who have sexual intercourse with men.” She further asked men who have sex with men (MSM) to come out in the open in order to assist in HIV prevention efforts.

The importance of reaching out to persons having same-sex relations as a critical component of the response to HIV has been well-recognised by leading medical institutions as well as UNAIDS, UNDP and the World Health Organisation. The conviction and sentencing of Monjeza and Chimbalanga today, coupled with recent statements by governmental officials denouncing MSM, have served to further drive this already vulnerable community further underground.
The conviction of Monjeza and Chimbalanga has sparked a broader crackdown on the fundamental rights of all people in Malawi. Anyone seen as supporting LGBT rights is under attack. Immediately after the pair’s arrest, the office of a non-governmental organization working on LGBT rights was raided. According to news reports, the police are compiling a list of individuals seen going into the NGO’s offices and have begun following individuals, including prominent Members of Parliament, academics and priests, who they suspect of supporting LGBT rights.

Disturbingly, this move is supported by many Malawians who say that being gay is unnatural and unpatriotic. Many have welcomed the jail sentence and dismiss same sex relationships as being contrary to acceptable moral standards and Malawian culture. This sentiment is mirrored in the Magistrate’s judgment in which he held that:

“The engagement and living together as husband and wife of the two accused persons, who are both males, transgresses the Malawian recognised standards of propriety since it does not recognise the living of a man with another as husband and wife. Both these acts were acts of gross indecency.”

This broad-based attack not only undermines the response to HIV but is a violation of the fundamental rights enshrined in the Malawian Constitution. Specifically, the Malawian Constitution guarantees that every person has the right to liberty, human dignity, freedom and security of the person, and to be free from discrimination on all grounds. These rights guaranteed under the Constitution are reinforced under Malawi’s regional and international legal obligations. The African Charter on Human and Peoples’ Rights, ratified by Malawi in 1989, prohibits discrimination and provides for the right to equality, dignity, and liberty. Similarly, the International Covenant on Civil and Political Rights which Malawi has also ratified provides for freedom from discrimination, equality, liberty, and dignity. The prosecution, conviction and sentencing of Monjeza and Chimbalanga under sections 153 and 156 constitutes an abhorrent violation of their human rights.

There are those that seek to justify this violation on the ground that sexual orientation is a cultural issue and that same sex relationships are contrary to Malawian culture. The fundamental human rights to non-discrimination, human dignity and freedom of expression and association are just that – human rights – to be enjoyed by all humans. Governments do not get to choose who may enjoy human rights and who may not. We all have them, regardless of our sexual orientation.

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