SADC Lawyers Association statement on Tiwonge Chimbalanga and Steven Monjeza

The Southern African Development Community Lawyers Association (SADC Lawyers Association) wishes to commend the State President of the Republic of Malawi, Professor Bingu wa Munthalika, for pardoning Steven Monjeza and Tiwonge Chimbalanga who were convicted of bugery and indecent acts by males and sentenced to 14 years imprisonment by a Malawian Magistrate Court.

We are gravely concerned about Malawi’s apparent desire to continue to implement laws that are discriminatory and violate individuals’ rights to freedom of expression and conscience and status and, are, therefore, unconstitutional. The country’s courts have a duty to enforce the constitutional guarantee of equality before the law and ensuring protection against discriminatory laws. It is sad to note that African countries such as Malawi continue to persecute their own people for having a different sexual orientation when most European countries, from whom we inherited this law have long abolished any criminalization of homosexuality. In addition, the international human rights system has long recognized the rights of gay people and the need not to discriminate against them because of their sexual orientation. The United Nations Human Rights Committee has asserted that reference to “equal and effective protection against discrimination on any grounds such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” in Article 26 of the International Covenant on Civil and Political Rights includes the right to non-discrimination on the grounds of sexual orientation. (Human Rights Committee: Views of 31 March 1994, case of Nicholas Toonen v. Australia, Communication Number 488/1992).

It is, therefore, unacceptable that Malawi continues to maintain in its penal statutes provisions that impinge on the rights of its citizens and encourage intolerance amongst the population citing tradition, morality and religion.

The language that was used by the Magistrate in passing sentence, in our view, casts doubt on the fairness of the trial and the impartiality of the court in dealing with the case. The Magistrate referred to the marriage as “bizarre” and that the two men were “seeking heroism” by getting married publicly and not showing remorse thereby “corrupting the mind of a whole nation.” These are highly opinionated statements that draw reservations about lack of prejudice on the part of the presiding Magistrate.

The imposition of a maximum sentence was, in our view, without justification in terms of the law sentencing must be humane. We observe that the Courts in Malawi have not imposed maximum sentences even for more serious offences such as rape, defilement and armed robbery.

In denying the two men bail in December 2009, the same Magistrate also stated that he could not grant the couple bail because “the public out there was angry with them”. Such pronouncements can only help to endanger the lives of the two men at the hands of a few unguided elements in society. We are also concerned that in sentencing the pair, it appears that the magistrate was more concerned about setting an example than in taking all relevant circumstances in the interests of justice. Also, public pronouncements by persons in high political and religious offices condemning the two while the trial was pending could only have served to undermine the independence of the Court.

The couple was also subjected to compulsory medical examinations to determine their “gender” and whether they had had sexual intercourse. We strongly condemn this as an invasion of the couple’s right to privacy and security of the person as enshrined in the International Covenant on Civil and Political Rights.

We urge the Government of Malawi to repeal Sections 153 (a) and (c) of the Penal Code that are being used to discriminate against homosexual people in the country and infringe on their rights. The criminal law must conform to the standards set by the Constitution. It should be pointed out that a State that has ratified international and regional hman rights treaties must ensure that their domestic legislation does not contravene these regional and international obligations to which States voluntarily bind themselves. Constitutions by their very nature exist, among other things, to protect minorities and vulnerable groups from majorities.

In addition, we encourage judicial officers to be temperate and exercise restraint in the use of language so that they may instill confidence in members of the public in the independence and impartiality of our courts.

Issued for and on Behalf of the Southern African Development Community Lawyers Association
By Thoba Poyo-Dlwati
Vice-President, SADC Lawyers Association
1st June 2010.