The International Gay and Lesbian Human Rights Commission (IGLHRC) and the Malawi-based Centre for Development of People (CEDEP) on Thursday raised concerns about the criminalization of same-sex adult sexual acts in that country, as the United Nations Human Rights Committee ended its dialogue with the Malawian government about its human rights obligations.
During the dialogue, the Malawian government referred to the criminalization of same-sex adult sexual acts but claimed that these criminal provisions are not being applied. This contrasts with research findings from CEDEP, whose researchers visited 23 prisons throughout the country and found that from 2011 to 2014, 21 men had served time for adult same-sex sexual acts; at least 6 of the cases involved consensual sex between adults.
“It is, of course, good to know that our government recognizes that the criminalization of consensual adult same-sex sexual acts is a human rights concern,” said Gift Trapence, Executive Director of CEDEP, who was present during the dialogue. “But the information provided to the Committee is manifestly wrong. Adults engaging in same-sex sexual conduct are being arrested and imprisoned, and several are in prison even as the government denies their very existence.”
In its presentation to the Human Rights Committee, the Malawian government also indicated that criminal provisions regarding consensual adult same-sex sexual acts have been referred on two occasions to the Law Commission for consultations, but that such consultations have been stalled because of financial concerns. The government claims Malawi’s constitution requires a Law Commission consultation for any change in law.
“The Law Commission certainly has a mandate to review our laws, but this is by no means the only route towards better compliance with the country’s human rights obligations,” said Trapence. “A law could be declared unconstitutional by the courts, prompting a change, or members of parliament can introduce private members bills. Both of these options could potentially provide a faster solution the suffering of so many.”
The Malawian High Court is currently reviewing the constitutionality of the country’s criminalization of sodomy, a provision which is applied mostly to men thought to be gay, and which does not distinguish between consensual or nonconsensual sexual acts.
The Human Rights Committee, which monitors implementation of the key human rights convention on civil and political rights, spent a day and a half this week in dialogue with government officials, based in part on information received from civil society, the so-called shadow reports.
IGLHRC, CEDEP and three other civil society groups submitted shadow reports that document deficiencies regarding Malawi’s legal and policy framework to protect civil and political rights, including the continued explicit criminalization of consensual sexual acts between adults of the same sex (both for men and women).
“The Committee raised the criminalization of consensual adult same-sex sexual acts as a serious concern,” said Marianne Møllmann, Director of Programs of IGLHRC. “The Committee understands that, when people are criminalized because of their real or perceived sexual orientation, this affects their ability to get jobs, go to school, or access potentially life-saving health treatment.”
For more information about human rights violations against LGBT people in Malawi, read the Malawi Shadow Report on the International Covenant on Civil and Political Rights.
The International Covenant on Civil and Political Rights (ICCPR) is a treaty that outlines fundamental rights guaranteed to all individuals regardless of race, color, sex, language, religion, opinion, nation, property, birth or other status. The ICCPR was adopted by the United Nations General Assembly in 1966 and entered into force in 1976. So far, 166 states, including Malawi, are parties to the Covenant. The Human Rights Committee is responsible for monitoring the implementation of the treaty by States Parties. The 18-member committee also has the authority to interpret the treaty through issuing general comments.
The ICCPR requires all state parties to submit Periodic Reports about the implementation of the treaty’s principles to the United Nations Human Rights Committee. Based on the state reports and information gathered by Committee experts, the Committee develops a list of questions (List of Issues) regarding the status of civil and political rights in that country. State Parties often provide a written response to those questions ahead of the official review session of the state’s compliance with the ICCPR. The Committee also accepts reports from non-governmental organizations regarding the human rights situation in that country. These reports are known as Shadow Reports.
Based on the State report, the State written answers to the List of Issues, shadow reports, the State presentation to the Committee, and the interactive dialogue between the State and the Committee, the Committee releases Concluding Observations with a list of concerns and recommendations based on the State’s compliance with it’s treaty obligations. The State will then formally acknowledge which of the Committee recommendations and concerns it will abide by. The Concluding Observations and the State response are powerful tools for domestic advocates seeking to advance human rights and governmental accountability.