Repealing Malawi’s LGBT Laws: An Example for Africa?

At a news conference shortly after she was sworn in as Malawi's president,
Joyce Banda announced her government's intention to decriminalise
homosexuality. It is unclear how she will achieve this, but the move is in
stark contrast to the approach of her predecessor, Bingu wa Mutharika, who
openly condemned it.

In a region in which lesbian, gay, bisexual and transgender (LGBT) rights have
often been rejected in the name of traditional values, Banda's stance is bound
to attract attention. Hopefully, it will bring about some rethinking of
policies that discriminate against LGBT people and often even criminalise
homosexual practices.

In fact, Banda has taken a series of brave stands since she took office. Her
refusal last week to host the African Union summit in July because the AU
insists on having President Omar al-Bashir of Sudan there, despite his
outstanding arrest warrant from the International Criminal Court, is just one
of them.

And amending LGBT rights is another indication of her determination to lead
Malawi back onto the path of being a forward-looking democracy and a state that
respects universal human rights and global bodies such as the ICC over and
above parochial interests.

Banda, the former vice president, inherited a grim economic situation when she
took office in April, the first woman to become a head of state in the southern
African region. Soon after taking office, she announced that she intended to
repeal repressive laws and policies, some of them passed under Mutharika's
rule, including the laws criminalising same-sex acts.

The repeal of these repressive laws would be good news for Malawi and for
Africa. It would not only spare members of the LGBT community the fear of
prosecution, but would also negate the legitimisation of violence, abuse, and
discrimination based on sexual orientation.

It would also be the first time since 1994 that an African country has
repealed anti-LGBT legislation, and would add renewed impetus to global efforts
toward decriminalisation of same-sex conduct.

How then will Banda's announcement be viewed by other African leaders? Coming
as it does just before the AU Summit on Jul. 15 and 16, Banda's decision may
reignite the discussion of traditional values, in a desperate attempt by some
to reverse progress made through years of activism and international
jurisprudence. Such a move should not be allowed to take hold.

by Monica Tabengwa

Under Mutharika's rule, the situation in Malawi was quite different. In April
2010, Malawi authorities arrested and prosecuted Tiwonge Chimbalanga, a
transgender woman, and Steven Monjeza, a man, after a local newspaper published
pictures of their "engagement party."

After an international outcry, Mutharika pardoned the two on "humanitarian
grounds" but said the couple had committed crimes against Malawian tradition
and culture. To underscore the point, in December 2010 the Malawian parliament
extended existing laws criminalising same-sex acts between men to include same-
sex acts between women.

Mutharika died in April after eight years in office that did little to address
the corruption and poverty in Malawi, one of Africa's poorest countries. During
2011, as the economic situation deteriorated and public grievances grew, the
government became increasingly repressive. On Jul. 20, police fired on a
demonstration, killing 19 people and wounding dozens more. Hundreds were

Multiple donors suspended aid programmes, including the United Kingdom, the
United States, Germany, Norway, the World Bank, and the African Development
Bank, citing bad governance and mismanagement of funds.

Although sanctions may be useful in seeking to secure and protect human
rights, any attempts to single out LGBT rights in this process has backfired as
politicians have used this to divert the people's attention from their own
corrupt practices. The government sought to blame the LGBT community for the
cuts in donor aid, provoking increased homophobia and threats against known
supporters of LGBT rights.

In part for this reason, the public perception of Banda's motives in saying
she intends to decriminalise homosexuality may be more contentious. Some in
Malawi and in the region will see her move as bowing to international pressure.

The issue of donors imposing conditions on their aid has long been a bone of
contention for African states, but the LGBT issue has spurred new debate. While
good governance and respect for human rights should be core standards
underpinning donor programmes, many African activists, including international
human rights advocates, oppose the use of aid conditionality to promote
protection of LGBT communities in Africa.

After British Prime Minister David Cameron threatened to suspend direct aid to
repressive governments, especially countries that had laws, policies, and
practices that subjected LGBT communities to discrimination and abuse, some
African social justice activists wrote to him expressing their disapproval,

"The imposition of donor sanctions may be one way of seeking to improve the
human rights situation in a country but does not, in and of itself, result in
the improved protection of the rights of LGBTI (lesbian, gay, bisexual,
transgender and intersex) people. They tend, as has been evidenced in Malawi,
to exacerbate the environment of intolerance in which political leadership
scapegoat LGBTI people for donor sanctions in an attempt to retain and
reinforce national state sovereignty."

But Malawi, South Africa, and others should stand firm against any effort to
reject LGBT rights as human rights.

As Banda acts to rebuild the country's economy and roll back the recent human
rights repression, decriminalisation is an important first step. However, it
needs to be accompanied by a real commitment to address public homophobia, and
support civil society efforts to promote human rights more broadly — efforts
that donors should support.

It will take more than the repeal of the laws to change public perceptions and
attitudes. Banda's efforts will need a holistic focus on rights and civil
liberties for all Malawians, including LGBT individuals. Forming strategic
partnerships with civil society organisations to prevent all form of
discrimination — including on the basis of sexual orientation — will not only
circumvent homophobic sentiments but also promote greater public participation
and ownership of the reform process.

Pubblicato da Lorenzo Bernini