Malawi’s Constitutional Court on Friday dismissed the case of two applicants seeking to legalize same-sex relationships, marking a significant setback for LGBTQ+ rights in the country. The three-member judge panel, consisting of Justices Joseph Chigona, Chimbigzani Kacheche and Vikochi Chima, delivered their ruling after six hours of deliberation.
The judges ruled that the applicants failed to demonstrate that the laws in challenge specifically discriminated against homosexual individuals. The court also maintained that it is the role of the parliament to review and amend these laws if deemed necessary. The court’s decision means that the criminal proceedings against both applicants will continue in the lower courts.
The applicants, Dutch national Jan Willem Akster and Malawian transgender woman Jana Gonani, challenged the constitutionality of sections 153, 154 and 156 of Malawi’s Penal Code. These provisions criminalize “indecent practices between males” and “unnatural offenses,” carrying penalties of up to 14 years in prison. The applicants argued that these laws violate their rights to privacy and dignity as enshrined in the Malawian Constitution and international human rights law. They therefore sought to have the court declare the penal code provisions unconstitutional, citing discrimination and persecution of LGBTQ+ individuals in Malawi.
Gonani initially challenged her conviction in February 2022 with support from the Nyasa Rainbow Alliance, a Malawian LGBTQ+ rights organization. She was arrested in September 2021 in Mongochi after an altercation and was subjected to a genital examination by a male officer before being placed in a male holding cell. On December 23, 2021, she was convicted under colonial-era laws and sentenced to eight years in Blantyre Prison, one of Malawi’s most overcrowded men’s prisons.
Reacting to the judgment, Gonani’s lawyer Bob Chimkango expressed disappointment but acknowledged the court’s position. He stated, “We will review the judgment and advise our client on whether to appeal.”
Amnesty International and other human rights organizations have condemned the ruling. Amnesty International’s Deputy Regional Director for East and Southern Africa Khanyo Farise described the decision as a “bitter setback for human rights in Malawi.” Farise emphasized that the ruling contradicts Malawi’s constitution, the African Charter and international human rights law, all of which prohibit discrimination.
Farise stated, “The court’s refusal to overturn these laws means LGBTQ+ persons in Malawi will continue to face discrimination and persecution simply for who they love … This ruling translates to continued barriers in access to healthcare and other social services for LGBTQ+ persons.”
The ruling has drawn attention to the precarious situation of LGBTQ+ individuals in Malawi. The Nyasa Rainbow Alliance has reported increasing threats and abuse, including a raid on their offices in June 2023. The international community has also expressed concern, particularly as Malawi’s decision contrasts sharply with recent progressive rulings in other African nations such as Namibia’s decriminalization of homosexuality earlier this month.
