Kulemeka and Gonani were arrested Dec. 7 under Section 153 of Malawi’s penal code that criminalizes “carnal knowledge of any person against the order of nature” – locally interpreted to mean sodomy. A sodomy conviction can bring a maximum penalty of 14 years imprisonment with hard labor in Malawi.
Malawi is a southern African country of 15 million people that depends heavily on international aid. The laws against homosexuality are colonial relics that Malawians strongly support. Sodomy has been illegal since at least 1930, when Malawi was the British colony Nyasaland. The statutes have remained firmly in place even though the constitution has been revised twice since then, first at independence in 1965, and then again following the reintroduction of multiparty democracy in 1995.
How Kulemeka and Gonani wound up in police custody is somewhat hazy. According to a police spokesperson, Kulemeka met Gonani at a bar in Malawi’s capital city, Lilongwe. From there, they left for Gonani’s house, where they had consensual sex. Neighbors descended on Gonani’s house, accusing the two men of being homosexuals and threatening to impose summary justice until police intervened. According to police, Kulemeka and Gonani confessed to having consensual sex; based on this confession, they were charged with sodomy.
Once again, after an international outcry, Malawi released the pair
Back in 2010, when Monjeza and Chimbalanga were arrested and then convicted, international donors objected vociferously. Malawi responded. Only 11 days after the pair were sentenced to 14 years in prison, then-President Bingu wa Mutharika pardoned Monjeza and Chimbalanga – not coincidentally, during an official visit from UN Secretary General Ban Ki-Moon.
That’s what happened again this time. U.S. Ambassador to Malawi Virginia Palmer called on the Malawi government “to drop the charges … as quickly as possible,” in a statement published on the Embassy’s Facebook page. German Ambassador to Malawi Peter Woeste urged the Malawi government to honor its policy “not to arrest, detain, charge or pursue people engaged in consensual same-sex activity.”
Objections also erupted from local minority rights advocacy organizations, notably the Center for Development of People (CEDEP) and the Center for Human Rights and Rehabilitation (CHRR). Both condemned the arrest and demanded that the government immediately release Kulemeka and Gonani.
And that’s exactly what the Malawi government did. In December, the Minister of Justice Samuel Tembenu issued a statement saying the government is committed to “adhere to universally accepted human rights standards,” to “review the penal laws on homosexuality,” and to abide by a “moratorium on arrests and prosecution of consensual homosexual acts.”
So will Malawi decriminalize homosexuality?
Some analysts and activists have pointed to these government statements as suggesting that the Malawian government will reform anti-LGBT laws, or at least, stop prosecution of same-sex acts. Based on our observations and research in Malawi, we don’t agree.
For one thing, the government has made statements like that before. For instance, former president Joyce Banda made a similar commitment in her 2012 State of the Nation address. The international community celebrated Banda’s statement as a major step forward for sexual minority rights in Africa, but the government never did anything tangible to repeal the crimes-against-nature statutes.
For another, local opinion leaders and some civil society groups objected to the release of Kulemeka and Gonani, and reject the moratorium. That includes the Malawi Human Rights Commission, which argued that the executive branch does not have the power to suspend laws. Legal experts in Malawi agree, saying the moratorium was unconstitutional.
The Young Pastors Coalition of Malawi – which opposed Kulemeka and Gonani’s release and called for their re-arrest – sought and was granted an injunction by the High Court in Mzuzu against the moratorium. The High Court ordered Malawians engaging in same-sex acts be arrested and prosecuted until such a time when the law is repealed by Parliament.
That raises a third point: Political scientist Peter VonDoepp’s research shows that Malawian courts are assertive and have power independent from the president. The Mzuzu court ruling is one of many examples of this independence in constitutional interpretation.
In his research, VonDoepp argues that political uncertainty – in this case, the uncertainty that the current president will stay in office for very long – discourages judges from rulings that favor the president. Rather, he shows, political uncertainty can lead judges to cultivate society’s support instead.
Political uncertainty is certainly the rule right now. The current president, Peter Mutharika, won the 2014 election with only a plurality – not a majority – of the vote. Mutharika’s administration struggles with such significant challenges as donors having withdrawn budget support and the country facing an impending food shortage.
The biggest threat looming to sexual minority rights in Malawi: a referendum
But there’s an even larger threat to sexual minority rights in Malawi than the Mzuzu ruling. Some political leaders have called for a referendum on homosexuality.
That includes Mutharika’s Foreign Affairs Minister George Chaponda. Deftly, in calling for a referendum on same-sex rights, Chaponda invoked the 2015 referendum on same-sex marriage in Ireland. Why, he implies, shouldn’t Malawians have their say, just as citizens of western democracies do?
Chaponda knows that the same donors who are demanding decriminalization also champion democratization broadly, and elections specifically. The Malawi government is confident that the electorate in this conservative and deeply religious country would vote to continue to criminalize same-sex acts. And they’re right.
Our research confirms that Africans in general – and Malawians in particular – oppose homosexuality.
In a report on tolerance in Africa released today to coincide with Zero Discrimination Day, we show that Africans are generally very tolerant of people from other ethnic or religious groups, and of immigrants and people living with HIV/AIDS.
But they are largely intolerant toward homosexuality.
That’s especially true in Malawi. The pie graph below shows why a referendum on homosexuality in Malawi would cement in place the nation’s laws against same-sex acts. In the Afrobarometer survey conducted in 2014, 93 percent of Malawians said they would not like to have homosexuals as neighbors.
We found similar sentiments in an earlier wave of the Afrobarometer (2012), when we asked Malawians whether people “practicing same sex marriage or relationships have the right to do so.” Fully 95 percent said they disagreed. Our findings are also consistent with a 2011 study done by CEDEP and CHRR, which found that 70 percent of Malawians felt uncomfortable with having “LGBTI people” as colleagues.
Given that strong negative opinion, calls for a referendum are an obvious attempt to let the majority legitimize discrimination against sexual minorities.
Based on our research, we’re not optimistic about sexual minority rights in Malawi. Homophobic rhetoric has been at a fever pitch since the Kulemeka-Gonani arrests. One politician even wrote in a Facebook rant that lesbians and gays should be killed. That might be extreme, but the outpouring of support for this politician in the wake of his rant suggests he’s not a lone wolf.
In short, survey data that show low tolerance for homosexuals in Malawi suggest that if a referendum was held, sexual minorities would lose. And since courts look more toward public opinion than presidential signals, we believe the courts would decide the same.
Boniface Dulani is is a senior lecturer in the Department of Political and Administrative Studies at the University of Malawi and Afrobarometer’s operations manager for fieldwork in southern and francophone Africa.