Malawi’s Constitutional Court has dismissed the case brought by two applicants seeking the legalization of same-sex relationships, marking a notable setback for LGBTQ+ rights in the country. The three-member judicial panel, which included Justices Joseph Chigona, Chimbigzani Kacheche, and Vikochi Chima, delivered their ruling after six hours of deliberation. The judges concluded that the applicants failed to show that the challenged laws specifically discriminated against homosexual individuals.
The case challenged sections 153, 154, and 156 of Malawi’s Penal Code, which criminalize “indecent practices between males” and “unnatural offenses,” carrying penalties of up to 14 years in prison. Dutch national Jan Willem Akster and Malawian transgender woman Jana Gonani argued that these laws violate their rights to privacy and dignity as enshrined in the Malawian Constitution and international human rights law. Despite their efforts, the court maintained that it is the prerogative of the parliament to amend these laws, if necessary. Consequently, criminal proceedings against both applicants will continue in the lower courts.
Initially, Gonani, with support from the Nyasa Rainbow Alliance, a Malawian LGBTQ+ rights organization, challenged her conviction in February 2022. She was arrested in September 2021 and subjected to a genital examination by a male officer before being placed in a male holding cell. Gonani was convicted under colonial-era laws and sentenced to eight years in Blantyre Prison, one of Malawi’s most overcrowded men’s prisons.
The ruling has been met with disappointment from human rights organizations. 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,” emphasizing that it contradicts Malawi’s constitution and international human rights law, 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.”
The case highlights 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. This decision contrasts sharply with recent progressive rulings in other African nations, such as Namibia’s decriminalization of homosexuality earlier this month.