The Malawi government has suspended arrests and prosecution of people suspected to be involved in homosexual acts.
This comes after government received pressure and criticism from some civil society organisations, development partners and the international community after the arrest of 19-year-old Cuthbert Kulemera and 33-year-old Kelvin Gonani, who were suspected of having indulged in homosexual acts.
This means Kulemera and Gonani’s 12-day nightmare is over, unlike Malawi’s first gay couple of Tiwonge Chimbalanga and Steven Monjeza, who had to endure the experience of being paraded in court before being handed a 14-year jail sentence after being netted in 2009.
Kulemera and Gonani have received their freedom after the government apparently remembered its international human rights obligations. This is the message one gets from a Ministry of Justice statement released Saturday.
“Malawi as a member of the international community is also committed to adhere to universally accepted human rights standards. The government, therefore, acknowledges the view expressed by International Human Rights bodies that the inclusion of offences prohibiting homosexuality on our statute books within our legislation may be at variance with the views held by such bodies,” reads part of the statement signed by Justice Minister Samuel Tembenu.
The statement adds: “Further, in line with this commitment, government has imposed a moratorium on arrests and prosecution of consensual homosexual acts. Government has also consistently invited civil society to carry out intensive sensitisation campaigns on gay rights, as the concept is alien to Malawian culture, since the previous two attempts to change the law met with stiff resistance from the general public.”
However, the government has backed the practice of carrying out involuntary medical tests on suspects.
When Malawi’s first open gay couple of Monjeza and Chimbalanga was arrested in Blantyre in 2009, on suspicion that they had carnal knowledge of each other against the order of nature, and law enforcers took them to a public health facility for medical assessment. The results were later used against them.
The same thing happened to Kulemera and Gonani after their arrest on December 7. Kanengo Police spokesperson, Esther Mkwanda, confirmed that the two suspects were taken to Kamuzu Central Hospital for medical assessment.
But Tembenu has justified the law enforcement agencies’ action.
“Government has noted the concerns raised by interested parties and international bodies regarding the arrest of the two men. Government wishes to assure those concerned that the Ministry of Justice and Constitutional Affairs has carried out investigations into the arrest of the two men.
The findings of these investigations do not disclose a case of two consenting male adults indulging in consensual sex, hence the Police’s diligence to require medical examination in order to establish the truth. The Ministry has not detected any prejudice or malice on the part of the conduct of the Police,” reads part of the statement.
But there are indications that the government has grudgingly rescinded its decision.
“The Ministry of Justice wishes to reiterate government’s commitment to the observance of human rights, as enshrined in our Constitution. The Constitution of Malawi represents the collective wisdom and values of the people of Malawi. The Constitution, being the basic law, provides the framework that guides the proper implementation of the aspirations of the people of Malawi through the various statutory laws that Parliament enacts.
“However, while seeming to be executing the will of the people of Malawi, the government seems to be caught in the trap of a slave who serves two masters.
“Malawi as a member of the international community is also committed to adhere to universally accepted human rights standards. The government, therefore, acknowledges the view expressed by international human rights bodies that the inclusion of offences prohibiting homosexuality on our statute books within our legislation may be at variance with the views held by such bodies.
“Consequently, the government has committed itself to review the penal laws on homosexuality under the Penal Code, but this has to be done in consultation with the people of Malawi as prescribed by the Constitution,” adds the statement.
Speaking in a separate interview, Tembenu said the development means the government has “withdrawn all the charges [pressed on the two], be it charges holding, or otherwise”.
He also acknowledged that the issue of the arrest has been “divisive”.
Meanwhile, Centre for the Development of People executice director, Gift Trapence, has commended the government for reversing its decision on the issue.
“We want to commend the government for implementing the commitment it made in 2012 premised on protecting the rights of sexual minorities. Culture and religion should not serve as grounds for violating the rights of minority groups,” said Trapence.
However, Trapence called for investigations into circumstances leading to the arrest of Kulemera and Gonani.
“There is need to investigate the human rights approaches adopted by the police and medical people. Definitely, the rights of the two people have been violated because they were forced to undergo tests,” said Trapence on Saturday.
The arrest of Kulemera and Gonani attracted criticism from development partners particularly Unites States Ambassador to Malawi, Virginia Palmer and German Ambassador to Malawi,Peter Woeste who expressed displeasure over the “infringement of people’s rights”.
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