The LGBTQIA+ Community vs The Law in Malawi | A National Case of Cognitive Dissonance

Cognitive Dissonance

noun (Psychology)

The state of having inconsistent thoughts, beliefs, or attitudes, especially as relating to behavioural decisions and attitude change.

The feeling of discomfort that results when your beliefs run counter to your behaviours and/or new information that is presented to you.
L. Perlovsky, A Challenge to human evolution – Cognitive Dissonance. Frontiers in Psychology.

Everyone of us experiences dissonance in our day to day activity. Think of me – a person who claims to be paperless as I care for the environment; but can better draft my creative ideas with a pen and paper.

As Malawians – we claim to love and respect everyone around us, yet we are some of the most bigoted people; especially when other people’s beliefs do not align with our own.

Causes of Cognitive Dissonance

People desire consistency in their attitudes and perceptions; and thus when what people hold to be true is challenged with new information – something within must change in order to reduce, or eliminate the lack of agreement (i.e. dissonance).

Some of the most popular causes for cognitive dissonance are religious and political leanings.

It is in our interest to bridge the gap between what we believe, and the reality that is presented to us.

Human Right of people in the LGBTQIA Community: Where we are coming from, where we are, and where we are heading.

Sexuality/sexual orientation is a topic seldom discussed in common Malawi.

If you ask a regular Malawian about anything to do with the queer community – first they will give you the very ignorant opinion that gay people are strictly men who have sex with men. If you are to ask them about women being gay, they usually giggle and say that there is not such thing as a woman being gay. They way even go further to express how they find lesbians very sexy and attractive.

The law supports this cognitive dissonance, as men can get up to 14 years in prison, while women only get a maximum of 5 years. One would wonder why this is the case – and if the government supports the idea that there is such a think as being ‘less gay’.

Another common thing Malawians will tell you is that homosexuality is a western ideology – non-African. Every time the issue of homosexuality comes up – Malawians quickly rush to defend:

Stop imposing western ideologies on us.

Uhuru Kenyatta, in response to Barack Obama when he addressed the legal discrimination against the LGBT community, said that the west must accept that there are just some things we as Africans, do not share with the US.

Africans expressing the view that homosexuality is a western concept shows ignorance on our part. We use ignorance to oppress fellow Africans because we are too lazy to read up on and inquire about our history.

If you say being gay is not African, you do not know your history.
Bisi Alimi

Nelson Mandela once said that homosexuality is not un-African, but,

just a form of sexuality that has been suppressed for many years,

previously by colonialists, and later Africans.

Most Malawians will tell you that they do not approve of gay people because they are Christian. These are the same people who cannot tell you of their own (African) religious history. They are the same people who cannot acknowledge that homosexuality was banned by the coloniser i.e. white man when he brought Christianity to Africa – the same white man who returned home, and later legalised homosexuality in his own land.

Human Rights activist Nigel Patel, a Philosophy and Law graduate, argues that decriminalising homosexuality is about decolonisation as homophobic laws are very much colonial.

In a landmark judgment on June 11, 2019, Botswana’s high court rules that its penal laws criminalising consensual same-sex sex were unconstitutional. It was noted by the court:

“with the advent of colonialism, the offence of sodomy was henceforth imported into the British colonies during the 17th and 20th centuries.”

Lesbian, gay, bisexual, and transgender (LGBT) persons in Malawi face legal challenges not experienced by non-LGBTQIA+ residents.

The Malawi Constitution does not specifically prohibit discrimination on the grounds of sexual orientation. Human rights lawyer Chrispine Sibande, argued in 2010 that discrimination is prohibited under Section 20 of the constitution, which provides that:

All persons are, under any law, guaranteed equal and effective protection against discrimination on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, property, birth or other status.
The Malawi Constitution

There has no been no official legal ruling to this effect.

The Malawian law is very clear, however, (or one would think) on the issues of homosexuality in Malawi. The Penal Code prohibits “carnal knowledge against the order of nature”, attempts to commit “carnal knowledge against the order of nature”, and acts of “gross indecency”.

More cognitive dissonance for our nation.

To tackle the issue of LGBTQIA+ rights in Malawi – one must explore the different fields of law, history, psychology, and sometime religion; and come up with a common ground that serves the interests of all; without infringing on any human rights. A tough ball, if you ask me.

Timeline of Events surrounding queer issues in Malawi

In late December 2009, Tiwonge Chimbalanga, transgender woman, and a cit heterosexual man, Steven Monjeza, were arrested after holding a traditional “engagement” party. On 18 May 2010, they were found guilty of having committed “unnatural offences” and “indecent practices between males”.

This was the first time homosexuality was discussed with such public interest in Malawi. Prior to then, I personally had not heard of homosexuals in Malawi. It was such a wild concept, and being a self-acclaimed “God-fearing Nation”, the religious community (which makes of really most of Malawi) was deeply offended, as the bible clearly states homosexuality as being a sin, punishable by death.

The international community was deeply involved in the Tiwonge and Steven case, with some nations going to the extents of withdrawing aid and funding to Malawi.

On the 29 May 2010, then President late Bingu wa Mutharika pardoned Tiwonge and Steve.

In 2011, it was reported by the Ephraim Chiume (The Malawi Minister of Justice then) that all homophobic laws were sent to the Malawi Law Commission for review. It was later discovered by legal experts in January 2012, that the Malawi Law Commission had in fact not been asked to review these laws.

On 18 May 2012, President Joyce announced her intention to repeal the laws criminalising same-sex sexual activity. On 5 November, the Malawian government suspended all laws that criminalised homosexuality.

The Attorney General and Minister of Justice Ralph Kasambara ordered police not to arrest LGBT individuals, pending a review from the National Assembly. Three days later, he reversed his word, saying,

There was no such announcement and there was no discussion on same-sex marriage.

The Malawi Law Society argued that it was unconstitutional for ministers to arbitrarily suspend any law, and would set a dangerous precedent for the future.

Religious leaders, as expected, were strongly against the suspension.

In November 2013, the Malawi High Court announced its intention to review the constitutionality of the law by accepting an appeal. The focus of the appeal is the case of three prisoners Amon Champyuni, Mathews Bello and Musa Chiwisi, who were convicted in 2011 and are serving sentences ranging from 10 to 14 years for practicing homosexuality.

In January 2014, the court’s deliberations on the issue were delayed pending a determination by the Supreme Court on whether the High Court can proceed to review an issue of constitutionality. As of 2019, there have been no ruling.

In July 2014, the Justice Minister announced that Malawi would no longer arrest people for same-sex sexual activity and review its anti-gay laws.

Recognition of same-sex unions

On 17 April 2015, The Marriage, Divorce and Family Relations Law came into force and banned all same-sex marriages and unions.

While the law was praised for raising the minimum age of heterosexual marriages from 16 to 18, it was at the same time condemned for the exclusion of homosexual couples and for its homophobic language stating that one’s gender is assigned at birth.

This new law, thus, does not allow people who have undergone gender reassignment surgery to marry someone of that person’s prior gender.

The law goes further to draw comparisons of gay sex to rape and sexual harassment.

On 9 February 2016, the High Court in Mzuzu has ordered the Malawi Police Service, the Director of Public Prosecutions to continue arresting and prosecuting gays and lesbians who commit homosexual offences in Malawi. High Court Judge Dingiswayo Madise granted an injunction requested by anti-gay pastors seeking an end to the government’s moratorium on arrests under the country’s anti-homosexuality law during court deliberations on that law’s constitutionality. The prosecutions will continue pending a judicial review of the decisions, conduct and abdication of legal and constitutional duty by the Minister of Justice and Constitutional Affairs, the Director of Public Prosecutions and the Malawi Police Service.

In September 2016, President Arthur Peter Mutharika said that he

wants gay rights protected
President Arthur Peter Mutharika

and proposed a referendum on decriminalising homosexuality and legalising same-sex marriage. However, in October 2015, a State House spokesperson has said the president’s comments are his own personal opinion on the subject and not a policy.

The law, and same-sex sexual activity in Malawi | The Malawi Constitution

The Malawi Penal Code provides:

Section 137A. Indecent practices between females. Any female person who, whether in public or private, commits any act of gross indecency with another female person, or procures another female person to commit any act of gross indecency with her, or attempts to procure the commission of any such act by any female person with herself or with another female person, whether in public or private, shall be guilty of an offence and shall be liable to imprisonment for five years.

Section 153. Unnatural offences. Any person who—

(a) has carnal knowledge of any person against the order of nature; or

* * * *

shall be guilty of a felony and shall be liable to imprisonment for fourteen years, with or without corporal punishment.

Section 154. Attempt to commit unnatural offences. Any person who attempts to commit any of the offences specified in the last preceding section shall be guilty of a felony and shall be liable to imprisonment for seven years, with or without corporal punishment.

Section 156. Indecent practices between males. Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, shall be guilty of a felony and shall be liable to imprisonment for five years, with or without corporal punishment [under Section 28 of the Penal Code].

Same Sex Laws (SUMMARY)

In summary, the Malawi constitution is very silent on a lot of issues to do with rights of queer people in Malawi. As it stands, the government rarely comments on the issue – but queer people continue to have their rights infringed in the country.

Currently, and by law,

Same-sex sexual activity is illegal, even though people in the LGBT community are not persecuted anymore for it. (Penalty: Up to 14 years imprisonment for men, up to 5 years imprisonment for women; rarely enforced, suspension from usage since 2012 disputed)

There is no age of consent, as the constitution is yet to acknowledge same sex-union. (Penalty: Up to 14 years imprisonment for men, up to 5 years imprisonment for women; rarely enforced, suspension from usage since 2012 disputed).

Anti-discrimination laws in employment only are not there.

Anti-discrimination laws in the provision of goods and services are not there.

Anti-discrimination laws in all other areas including indirect discrimination and hate speech are not there.

Same-sex marriages are not legal.

Same-sex couples are not recognised.

Same-sex couples cannot adopt children individually.

Same-sex couples cannot adopt children jointly.

Gays and lesbians are not allowed to serve openly in the military.

People do not have the right to change legal gender.

Lesbians have no legal access to IVF.

There is no legal provision for commercial surrogacy for gay male couples.

Men who have sex with men are not allowed to donate blood.

There are a lot of incoherent thoughts, where issues and laws on homosexuality are concerned. We claim to be a God-fearing nation – and declare in public that we are a warm nation with so much love to give. One would then be appalled by the hate that is passed around towards minorities, homosexual people being one.

Why are we so comfortable in our cognitive dissonance on issues which matter the most?