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Long road towards human rights respect

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IMPLEMENTED MALAWI BAIL PROJECT—The centre which Victor Mhango leads

Hannibal Uwaifo may not be Malawian but, for the little time he has been to Malawi, has made a quick diagnosis of the local situation to come up with a prognosis: Everything falls and rises on the pillar of respect for human rights.

As such, the African Bar Association (AfBA) President, who addressed members of the press in Lilongwe on Friday, called for respect for human rights.

The sentiments are a trait of leaders of the association, which was established in 1971 as a professional body that unites individual lawyers and national legal associations in Africa,

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“You cannot oppress people and hope to make progress. You cannot violate laws you made and expect that people will cooperate with you. That is a disaster waiting to happen,” he said, flanked by Malawi’s Justice Minister Titus Mvalo.

Little did Uwaifo know that, a day later, some Malawians— trading under the banner of Nyasa Rainbow Alliance (NRA)— would be inviting members of the press to a conference to reiterate his call.

But that is what happened on Saturday, when, at a presser aimed at appraising Malawians on the ‘Status of Human Rights of Lesbian, Gay, Bisexual, Transgender, Intersex, Questioning/ Queer-Plus Community in Malawi’ in Blantyre, NRA Executive Director Eric Sambisa and Programme and Operations Manager George Kachimanga called on the government of Malawi to respect the rights of both the majority and those in minority.

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“Malawi is one of the countries in Africa which has maintained repressive laws that criminalise same-sex conduct in its statute books. Despite being a member of the world’s top human rights body— that is, the United Nations (UN) Human Rights Council— Malawi has refused or neglected to address the growing condemnation from both local and international human rights activists who have been demanding the repeal of laws that criminalise consensual same sex relationships between consenting adults in private.

“It is sad to note that the government of Malawi continues to use culture, tradition and religion to justify the denial of basic rights of LGBTIQ+ persons in Malawi. This is contrary to the dictates of the Constitution of Malawi which guarantees to everyone the right to equal protection and to be recognised as a person before the law, and the right not to be discriminated against on the basis of one’s status,” Sambisa said.

The Penal Code of Malawi (Cap: 7:01 of the Laws of Malawi), in sections 137A, 153, 154 and 156) criminalises homosexuality and other consensual activities among adults.

As a result, sexual minorities in Malawi claim that they face routine harassment, violence and discrimination in almost all aspects of their daily lives.

“Due to failure by the Government of Malawi to repeal laws that criminalise consensual same sex relationships between two consenting adults in private, LGBTIQ+ persons continue to face homophobic violence, arbitrary arrest and detention, harassment, discrimination, sexual violence, extortion and other abuses. Arrests on the basis of sexual orientation or gender identity occur frequently in most parts of Malawi, especially in areas where homophobia and transphobia exist. Thus, the police have been making frequent arrests of LGBTIQ+ people simply because they are lesbians, gays, bisexual, transgender, and intersex among others.

“There have also been persistent reports of human rights violations of LGBTIQ+ persons by the police, including unlawful detention, extortion, threats of disclosure of confidential information, denial of legal protection as well as physical violence in detention. Furthermore, the police also seldom render assistance to LGBTIQ+ persons who have been assaulted as a result of their status, or for any other criminal complaint they may have. Instead, they threaten to reveal the complainant’s sexual orientation to family members, friends or colleagues to obtain a confession,” Kachimanga said.

Kachimanga and Sambisa claimed that, due to the government’s disregard for minority groups’ rights, its membership on the UN Council “is specifically and systematically aimed at blocking criticism or scrutiny on its failure to promote human rights of minority groups and to weaken the body’s ability to address rights abuses in this country”.

Their sentiments come at a time when, recently, Malawi voted against the renewal of the mandate of the Human Rights Commission’s Independent Expert on Violence and Discrimination based on Sexual Orientation and Gender Identity (Sogi) at the 50th HRC session in Geneva, Switzerland.

“It is our position that Malawi’s decision to vote against the renewal of the Independent Expert of Sogi is a serious breach of UN General Assembly’s founding resolution of the Human Rights Council requiring council members to uphold the ‘highest standards’ of human rights, and to ‘fully cooperate’ with the council.

“We note that this is not the first time that the Government of Malawi has desolated the LGBTIQ+ community. During the third cycle of Universal Periodic Review (UPR) for Malawi, the State refused to accept any recommendations that related to the LGBTIQ+ people despite receiving several recommendations on the subject. This development has stirred up several human rights abuses against the LGBTIQ+ community in Malawi such as failure to decriminalise consensual same sex relationships between consenting adults, denial of registration of LGBTI-led organisations like Nyasa Rainbow Alliance, LGBTIQ+ refugees [being] denied entry in Malawi, denial of access to health by LGBTIQ+ persons and verbal or physical attacks against LGBTIQ+ persons, among others,” the human rights activists claim.

However, according to the Malawi 2020 Human Rights Report, abuses seem to be entrenched in the system, even for those who are in majority.

The report observes, for example, that the problem of arresting people arbitrarily persists.

“The constitution and law prohibit arbitrary arrest and detention; however, the government did not always observe these prohibitions. The law provides for the right of any person to challenge the lawfulness of his or her arrest or detention in court but does not provide for compensation if the person is found to have been unlawfully detained. Lack of knowledge of statutes and of access to representation meant detainees did not challenge the legality of their detention.

“Police apprehended most suspects without a warrant if they had reasonable grounds to believe a crime was being or had been committed. Only in cases involving corruption or white-collar crime were arrest warrants normally issued by a duly authorised official based on evidence presented. The law provides detainees the right to have access to legal counsel and be released from detention or informed of charges by a court within 48 hours of arrest; however, authorities often ignored these rights. The use of temporary remand warrants to circumvent the 48- hour rule was widespread,” it says.

“Police frequently demanded bribes to authorize bail. Bail was often granted to reduce overcrowding in jails, rather than on the basis of legal merit. Relatives were sometimes denied access to detainees,” it adds.

It cites capacity constraints at the Legal Aid Bureau among grounds for the perpetuation of human rights abuses in Malawi.

“The Legal Aid Bureau is mandated to provide legal assistance to indigent persons. As of December 2019, the bureau had 23 lawyers and 29 paralegals in its three offices, located in the largest cities: Lilongwe, Blantyre, and Mzuzu.

The Centre for Human Rights Education, Advice, and Assistance assisted 803 persons detained at police stations and in prisons through its Malawi Bail Project camp courts, police cell visits and paralegal aid clinic to expedite their release,” the report indicates.

All these challenges mean it is not always easy for Malawi to follow through its own rules, such that Malawi could, to borrow Uwaifo’s words, be nurturing a disaster waiting to happen. It is an undesirable situation.

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