Malawi: Regressive Step as High Court Upholds Ban on Same-Sex Intimacy

The LGBTIQ+ community in Malawi will continue to be criminalised after the country’s High Court ruled that the ban on same-sex intimacy is constitutional.

The matter involved two separate cases concerning Dutch national Jan Willem Akster and Malawian transgender woman Jana Gonani, both of whom were charged in 2021 with engaging in homosexual acts.

They challenged sections 153, 154, and 156 of the penal code that outlaw “indecent practices between males” and “unnatural offences,” which carry penalties of up to 14 years in prison. They argued that these provisions violate their rights, including the right to privacy and dignity.

In its ruling on Friday, the High Court in Blantyre, sitting as a constitutional court, dismissed their application, reported local media.

Judges Joseph Chigona, Vikochi Chima, and Chimbizgani Kacheche found that the applicants failed to demonstrate that the laws discriminated against homosexuals. They further indicated that it was up to Parliament to review the laws.

While disappointed, human rights activists said they planned to review the 135-page judgement before commenting further.

The criminalisation of homosexuality in Malawi made international headlines in 2009 when transgender woman Tiwonge Chimbalanga and a man, Steven Monjeza, were arrested after holding a traditional engagement party.

They were given 14-year jail terms, but following global outrage, then-President Bingu wa Mutharika pardoned the couple in 2010.

In 2012, then-President Joyce Banda stated her intention to repeal the laws criminalising consensual same-sex relations.

Facing intense opposition from church groups and religious leaders, this promised legal change has not materialised. In 2021, the country held its first LGBTIQ+ Pride march in the streets of the capital Lilongwe.

The Malawi court’s ruling is a major human rights setback in the region during international Pride Month and follows the historic decriminalisation of homosexuality just days earlier by the High Court in Namibia.