“Today, in France, we still cannot live and love freely just as we are,” said Joël Deumier, president of the association SOS Homophobie. In its annual report published May 10, 2017, the organization stated it received 1,575 testimonies of anti-LGBT acts in 2016, an increase of nearly 20% compared with the previous year. It’s possible that the increase in reported incidents reflects a greater willingness of victims to speak out. Still, SOS Homophobie believes that many victims of anti-LGBT acts do not dare come forward.

Demonstration in support of same-sex marriage in Paris, 16 December 2012.

© 2012 Olivier Hoffschir

In 2016, SOS Homophobie received 26 reports from people who said they had a homophobic, biphobic, or transphobic encounter with justice or law enforcement officials. By this is meant that an officer refused to characterize an assault as homophobic in a complaint or to even file a complaint, or that a law enforcement officer himself discriminated against LGBT people.

While these incidents remain thankfully limited, they are no less unacceptable. France should take measures to determine how widespread these attitudes are among public officials, and to prevent subversion of their duties because of this attitude.

SOS Homophobie’s report also shows a correlation between debates over equal rights and the increase of anti-LGBT acts. The organization recorded a spike in reported incidents in 2013, the year France legalized same-sex marriage. In 2016, France adopted a law waiving the requirement for transgender people to provide proof of medical treatment to amend their legal gender. That same year saw a 76% spike in reported transphobic incidents.

While a majority of the French population is in favor of allowing same-sex couples to get married and adopt children, opponents of LGBT rights are a “vocal minority,” and are especially active on social media, where prosecution for homophobic statements remains difficult to carry out.

Several candidates for the 2017 presidential election expressed their intention to “rewrite the Taubira law” on same-sex marriage and adoption. One candidate even received the support of Sens commun, an organization openly opposed to the rights of LGBT people. When political figures take stands that are hostile to equal rights, they may “rekindle hate.”

It is high time to end discrimination against LGBT people and the French authorities have a key responsibility and role to turn this into reality.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

This week Poland’s parliament has the chance to improve the lives of transgender people by passing a law that simplifies the legal gender recognition procedure.

Recognition before the law in your preferred gender is a vital aspect of ensuring respect for the human rights of transgender people. For example, it allows transgender people to access services on an equal footing with their peers.

Transgender activists march in the 2015 Warsaw Pride holding a banner that reads "YES to Gender Accordance Act.”

© 2015 Trans-Fuzja

Momentum on this matter is building. Earlier this year, the Parliamentary Assembly of the Council of Europe issued a resolution noting “the emergence of a right to gender identity”, while raising concerns that “transgender people face widespread discrimination in Europe.”

Members of Poland’s parliament will consider the country’s Act on Gender Recognition this Friday. Parliament already passed the draft legislation over the summer, although the president vetoed it last week.

The act proposes some important advances.

First, it defines gender identity as a “settled and intense experience of one’s own gender,” which may or may not correspond with one's sex assigned at birth.

Second, it eliminates the requirement for physical interventions before gender can be legally recognized, and instead makes the process a court procedure.

Third, it spells out the various documents on which applicants are legally entitled to change their gender – including education certificates, work qualifications, and health records – and allows the possibility for young transgender people, once they reach age 16, to change their name.

Access to documents in your preferred gender and name is a key element in ensuring respect for an individual’s right to personal and private life, and also allows transgender people better access to healthcare, education, and employment.

In a recent survey, 78 percent of Polish transgender people said quicker and easier legal gender recognition procedures would allow them to live more comfortably.

There’s no doubt President Andrzej Duda’s recent veto of the act was a setback. But if parliament does vote in majority support of the legislation, Poland will take a huge step forward and transform the lives of many.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Graeme Reid, director of the Lesbian, Gay, Bisexual and Transgender Rights Program, is an expert on LGBT rights. He has conducted research, taught and published extensively on gender, sexuality, LGBT issues, and HIV/AIDS.

Before joining Human Rights Watch in 2011, Reid was the founding director of the Gay and Lesbian Archives of South Africa, a researcher at the Wits Institute for Social and Economic Research and a lecturer in Lesbian, Gay, Bisexual, and Transgender Studies at Yale University. An anthropologist by training, Reid received an master’s from the University of the Witwatersrand, Johannesburg, and a PhD from the University of Amsterdam.

Posted: January 1, 1970, 12:00 am

Yulia Malygina and Anna Golubeva, directors of Resource LGBQIA Moscow.

© 2017 Resource LGBTQIA Moscow
(Moscow) – A prominent Russian lesbian, gay, bisexual, and transgender (LGBT) support group had to cancel an annual Inclusive Family conference in Moscow after homophobic threats and an attack with pepper spray, Human Rights Watch said today. Police should conduct a thorough and effective investigation capable of identifying and holding those responsible accountable.

The fifth annual LGBTQIAPP+ Family Conference was to take place November 9-11, 2018, to share LGBT families’ experiences and to support family unions that do not conform to Russian policy and concepts of “traditional family values.” The organizers are Resource LGBTQIA Moscow. Unidentified assailants also attacked volunteers at the 2017 conference.

“It is totally unacceptable for activists to face threats and attacks simply for holding a conference,” said Graeme Reid, director of the LGBT rights program at Human Rights Watch. “The Russian authorities need to do more to ensure that these threats and attacks stop.”

Yulia Malygina, director of Resource LGBTQIA Moscow and one of the conference organizers, told Human Rights Watch that on November 7 and 8, she started receiving text messages and phone calls from people she did not know with homophobic threats about the conference. She also saw a number of hate speech messages about the conference posted on the Russian social media platform VKontakte (VK).

On the morning the conference was to start, November 9, the conference venue address, which had been kept confidential for security reasons, was leaked on VK and was rapidly picked up by a number of homophobic groups. Malygina attempted to file an online complaint with the police, but due to a technical glitch was not able to finalize it.

Around lunchtime, the site started receiving calls and online messages to cancel the conference. When the organizers and volunteers arrived at 3 p.m., shortly before the conference was to open, the management told them it had decided not to host the conference so as to not jeopardize the security of other events taking place there. “It was clear how difficult this decision was for the management,” Malygina said.

Resource LGBTQIA Moscow notified conference participants about the cancellation but volunteers remained at the site. At 7 p.m., she said, a group of five or six volunteers left for a shop across the street. As they left the shop, an assailant confronted them and sprayed them with pepper spray. Two of the volunteers had eye injuries and were taken to a hospital. They were treated and discharged after midnight.

Malygina said that people at the site told her they had seen the assailant there earlier that day, asking questions about the conference and waiting outside the building.

Immediately after the attack, Malygina called the police, who arrived 40 minutes later. But when they learned who had called them, the police refused to provide any assistance, stating “it wasn’t their territory” and left. They suggested calling another police precinct responsible for that site. Those police arrived two-and-a-half hours later, Malygina said, and asked no questions. They took two volunteers, who were in the attacked group, to their precinct, where they stayed until midnight filing their complaint.

On November 10, the organizers decided to start the conference in the form of a live online stream, and by November 11, Resource LGBTQIA Moscow had found another site and was able to hold some of the conference events there. However, when the new site’s address, which had been confidential, was also leaked on VK, the organizers canceled the remaining events to avoid further attacks or harm to conference participants.

Some of the statements on VK, which Human Rights Watch reviewed, refer to Russia’s anti-gay “propaganda” law, which bans spreading information that puts relationships among LGBT people in a positive light in public, where children might see or hear it.

This attack is one of many LGBT activists in Russia have suffered in recent years. In November 2017, assailants attacked two activists, Zoya Matisova and Nadezhda Aronchik, near the site of the Inclusive Family conference. In August 2018, the police opened a criminal investigation, and arrested and charged two of the alleged assailants with disorderly conduct. As a part of the investigation, the police deemed Matisova and Aronchik victims of an attack committed “on the grounds of hatred and hostility against a specific social group” that was “distinguished on the basis of belonging to non-traditional sexual orientation.”

Resource LGBTQIA Moscow said it will continue organizing their annual conferences. “We’ve decided that we will never hold closed events,” Malygina told Human Rights Watch. “Instead, we will make them open. We don’t want to hide anymore, run away, or hide the venue address.”

“The attack on ‘Vth LGBTQIAPP+ Family Conference’ is yet another example of how the anti-gay propaganda law has emboldened hate groups,” Reid said. “If the authorities want to end hate-based violence, they should start by annulling the ‘gay propaganda’ law.”

Posted: January 1, 1970, 12:00 am

Three transgender women were arrested and brought to the municipality police office in Labuhan Jukung, Sumatra Island, where they were given “Islamic guidance,” then hosed down using water from a fire truck. Municipality officers claimed it was a form of “mandi wajib” - an Islamic bathing ritual required to cleanse one off after sexual intercourse.

© Yosef Riadi

Police in Indonesia’s Lampung province were caught on video arresting and humiliating three transgender women, known as waria, the latest incident of rising state-sanctioned violence against lesbian, gay, bisexual, and transgender (LGBT) people in Indonesia.

On November 2, municipal police conducted an anti-LGBT raid on the beach in Labuhan Jukung, Lampung on the island of Sumatra and arrested three warias: Robiansyah, Yogi Pranata and Julius. The officers brought them to the local government building where they were given “Islamic guidance” and then hosed down outdoors from a fire truck. The officials reported in a WhatsApp message that it was a form of mandi wajib – an Islamic bathing ritual to cleanse oneself after sexual intercourse.

Human Rights Watch has documented numerous cases of intimidation, humiliation, and arbitrary arrest of LGBT people ever since Aceh, the only province that officially imposes Sharia, began in October 2015 to enforce their Islamic criminal code, which criminalizes same-sex relations. The anti-LGBT campaign intensified nationally in early 2016 when top government officials issued anti-LGBT statements. Now more local governments, such as in West Java, are drafting ordinances to criminalize same-sex relations.

On October 31, municipal police in West Sumatra arrested 10 women suspected of being lesbians after a police trawl of Facebook found photos of two of them kissing and hugging. Such discriminatory anti-LGBT actions will doubtlessly escalate unless the authorities act against the police responsible.

The group Forum Waria in Jakarta estimates at least 4,500 new warias came to Jakarta over the last three years, some of whom are displaced due to growing hostility against them in their home provinces. The newcomers are typically jobless, some having lost hair salons and other small businesses back home. Safe places to organize HIV counseling and treatment for LGBT people are also disappearing, heightening concerns among health workers about combating Indonesia’s spike in HIV among men who have sex with men.

Indonesian President Joko Widodo, Home Affairs Minister Tjahjo Kumolo and provincial governors have a responsibility to speak out in support of the threatened LGBT community and defuse the “moral panic” underlying much of the violence and discrimination. When local authorities, like the municipal police in Lampung, fail to protect the rights of these minorities, Indonesia’s leaders need to step in and hold them to account.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Tunisian authorities are confiscating and searching the phones of men they suspect of being gay and pressuring them to take anal tests and to confess to homosexual activity. Prosecutors then use information collected in this fashion to prosecute them for homosexual acts between consenting partners, under the country’s harsh sodomy laws.

Posted: January 1, 1970, 12:00 am
Video

Video: Privacy Threatened by ‘Homosexuality’ Arrests in Tunisia

Tunisian authorities are confiscating and searching the phones of men they suspect of being gay and pressuring them to take anal tests and to confess to homosexual activity. 

(Tunis) – Tunisian authorities are confiscating and searching the phones of men they suspect of being gay and pressuring them to take anal tests and to confess to homosexual activity, Human Rights Watch said today. Prosecutors then use information collected in this fashion to prosecute them for homosexual acts between consenting partners, under the country’s harsh sodomy laws.

“The Tunisian authorities have no business meddling in people’s private sexual practices, brutalizing and humiliating them under the guise of enforcing discriminatory laws,” said Amna Guellali, Tunisia director at Human Rights Watch. “Tunisia should abolish its antiquated anti-sodomy laws and respect everyone’s right to privacy.”

Human Rights Watch spoke with six men prosecuted in 2017 and 2018 under article 230 of the penal code, which punishes consensual same-sex conduct with up to three years in prison. One person interviewed was only 17 years old the first time he was arrested. Human Rights Watch also reviewed the judicial files in these cases and five others that resulted in prosecutions under either article 230 or article 226, which criminalizes “harming public morals.” In addition to violating privacy rights, these cases included allegations of mistreatment in police custody, forced confessions, and denial of access to legal counsel.

Police arrested some of these men after disputes arose between them or after neighbors reported them. Two had gone to the police to report being raped.

Some of the men spent months in prison. At least three have left Tunisia and applied for asylum in European countries.

K.S., a 32-year-old engineer, entered a police station in Monastir in June 2018 to file a complaint of gang rape, and to get an order for a medical examination of his injuries. Instead of treating him as a victim, he said, the police ordered an anal test to determine whether K.S. was “used to practicing sodomy.” “How they treated me was insane,” K.S. told Human Rights Watch. “How is it their business to intrude into my intimate parts and check whether I am ‘used to sodomy’?”

In another case, a 17-year-old was arrested three times on sodomy charges and was forced to undergo an anal examination, as well as months of conversion therapy at a juvenile detention center. Both harmful practices are discredited.

Tunisian prosecutors have relied extensively in recent years on forced anal examinations to seek “evidence” of sodomy, even though the exams are highly unreliable and constitute cruel, degrading, and inhuman treatment that can rise to the level of torture.

On September 21, 2017, during the Universal Periodic Review at the United Nations Human Rights Council, Tunisia formally accepted a recommendation to end forced anal exams. However, Tunisia’s delegation stated: “Medical examinations will be conducted based on the consent of the person and in the presence of a medical expert.” This stance is not credible because trial courts can presume that a refusal to undergo the exam signals guilt, Human Rights Watch said. Tunisia should abandon anal exams altogether.

Prosecutions for consensual sex in private and between adults violate the rights to privacy and nondiscrimination guaranteed by the International Covenant on Civil and Political Rights, to which Tunisia is a party. The United Nations Human Rights Committee, which monitors compliance with the covenant, has stated that sexual orientation is a status protected against discrimination. The UN Working Group on Arbitrary Detention has found that arrests for same-sex conduct between consenting adults are, by definition, arbitrary.

Tunisia’s 2014 constitution, in article 24, obliges the government to protect the rights to privacy and the inviolability of the home. Article 21 provides that “All citizens, male and female, have equal rights and duties, and are equal before the law without any discrimination.” Article 23 prohibits “mental and physical torture.”

The Code of Criminal Procedure prohibits house searches and seizure of objects that could serve a criminal investigation without a judicial warrant, except in cases of flagrante delicto, that is when catching someone in the act.

Article 1 of Law No. 63 on the protection of personal data stipulates that “every person is entitled to the protection of their personal data and privacy of information, viewed as a fundamental right guaranteed by the constitution. This data can only be used with transparency, loyalty and respect for the dignity of the person whose data is subject of treatment.” However, neither Law No. 63 nor any other domestic law regulates the conditions for seizing private data during a police investigation or its use.

On June 12, the Commission on Individual Freedoms and Equality, appointed by President Beji Caid Essebsi, proposed, among other actions, to decriminalize homosexuality and to end anal testing in criminal investigations into homosexuality. It also proposed criminalizing the unlawful “interception, opening, recording, spreading, saving and deleting” of an electronic message.

On October 11, 13 members of the Tunisian Parliament introduced draft legislation for a code on individual freedoms. It incorporated several proposals from the presidential commission including abolition of article 230.

Parliament should move quickly on this draft legislation and abolish article 230, Human Rights Watch said. It should enact a law that effectively protects people’s privacy, through regulating the seizure and use of private data during criminal investigations, with consequences if such a law is violated.

The Justice Ministry should meanwhile direct public prosecutors to abandon prosecutions under article 230. The Interior Ministry should investigate reports of the ill-treatment of people arrested based on their gender identity or sexual orientation.

Human Rights Watch conducted face to face interviews with men in Tunisia and phone interviews with men who fled to European countries. Pseudonyms have been used to protect their privacy.

Shams and Damj, local LGBT rights groups, provided assistance.

Accounts by Men Prosecuted

K.S., 32, engineer 

K.S. used to work for an international company in Tunis. He said that on June 8, he went to spend the weekend in at a friend’s house in Monastir, a coastal city. He had earlier chatted with a man from Monastir on Grindr, a social network application for gays. They made a date and they met that day in a café. The man invited K.S. to his house, but once there, the man became aggressive and showed K.S. a police badge. Two other men arrived, and they started insulting him, calling him “sick.” “One said, ‘You people of Loth [a demeaning term derived from the Biblical and Quranic story of Lot], you deserve to be killed, you are like microbes.’”

They punched and slapped him on the face, he said. Then the man who had invited him said, “We will show you what sodomy is like.” The men then forced him to take off his clothes and bend over. Two of them held K.S. by the arms while the third inserted a baton in his anus. “It was unbearable, I felt that I will faint,” K.S. said. They finally let him leave.

I was shivering and bleeding [when I reached my friend’s house]. The next day, I went to Fattouma Bourguiba hospital in Monastir. I just wanted to get medical treatment and to check that I did not have internal hemorrhaging.

But, he said, the doctor refused to examine him without a police order:

I went to the Skanes district police station in Monastir, to try to get the requisition order. I did not want to tell the police the full story, so I just said that three men had raped me. The policeman who was typing my statement left the room at some point, and that’s when I saw on the screen that he was instructing the doctor at Fatouma Bourguiba hospital to examine whether I am ‘used to practicing sodomy.’ I felt the blood freeze in my body.

Human Rights Watch reviewed the June 9 police requisition order, in which the chief instructs the doctor to examine whether K.S. was “used to practicing sodomy” and whether he was victim of anal rape.

K.S. said that, when the policeman returned to the office, K.S. asked if he could leave. The policeman replied: “And go where? You can’t leave before we check what kind of stuff you do.” The policeman called for a patrol car to drive K.S. to the hospital. 

The doctor told me that he has a requisition order to perform an anal test. “We want to check whether this is a habit,” he said. I was terrified. I told him that I didn’t want to do the test. But he insisted that he had to perform it. He told me to remove my pants and assume a prayer position [on hand and knees] on top of the medical bed. He put on gloves and started to examine me with his fingers. As soon as he did, I felt sick and told him I wanted to go to the toilet. I wanted to stop this humiliation. He let me go. I managed to avoid the policemen who were waiting for me in the corridor and left the hospital. Once in the parking lot, I started running until I felt safe, and then went to my friend’s house.

K.S. said he took a flight on June 13 to Belgium, where he has filed a request for asylum.

K. B., 41, documentary filmmaker

K.B. spent 13 months in pretrial detention on accusation of sodomy and unlawful detention. He is married and the father of an 8-year-old girl. He told Human Rights Watch that on March 3, 2017, at around 9 p.m., he went to downtown Tunis for drinks. While he was sitting in a bar, S.Z., a young man, approached him. They chatted for a while, then K.B. invited him to his place. He said that, after having sex, he went to the kitchen to prepare some food. When he came back to the living room, he caught the man stealing money from his wallet. K.B. tried to force him out of his apartment, but the man locked himself in a bedroom, went to the balcony, and screamed for help. Policemen arrived, arrested them, and took them to the Aouina district police station.

Police treated me with contempt. The first question the interrogator asked was whether I had sex with S.Z. I denied it categorically and told him we only had drinks together. But he said that S.Z. had confessed. The interrogator asked me: “Aren’t you ashamed of yourself?”

K.B. said the police at the station confiscated his phone and looked at his social media history and his photo archives. They switched the phone off and did not allow him to call his family or a lawyer. They presented him with a statement to sign, but he refused. At 4 a.m., they transferred both men to Bouchoucha detention center. Later that morning, the police took the men to the Tunis first instance court, where a prosecutor ordered them to undergo an anal test. The police took them to Charles Nicole hospital, K.B. said, where he refused the test. “The idea of them intruding into my intimacy and into my body was so humiliating to me.”
 
He was returned to detention and after a few weeks decided to undergo the test in the hope that negative results would prove his innocence. He said he informed the investigative judge during a hearing and the judge issued a requisition. Police officers took him again to Charles Nicole Hospital.

It was the worst thing that ever happened to me. The doctor asked me to strip and get on the examination table. He asked me to bend over. There was one policeman in the room and one medical assistant, watching. The doctor put one finger into my anus and moved it around. I was so ashamed. It was very dehumanizing.

 
K.B. said that even though the test result was negative, the investigative judge indicted him for sodomy. The order referring the case to trial said that the time elapsed between the alleged act and the test prevented the court from ruling out that K.B. was “used to the practice of sodomy.”

In May 2018, 13 months after the court placed K.B. in pretrial detention, it acquitted and freed him.

In the indictment, the investigative judge wrote that S.Z. had confessed to the police to “committing the crime of sodomy in exchange for money” and that he admitted that he “approached and dated men he met via Facebook.” The judge quotes the police report, which describes in crude terms the sexual intercourse between K.B. and S.Z. The judge also states that K.B has denied the accusation of sodomy, and instead stated that he and S.Z. were only having drinks at his place and did not have sex.

The investigative judge notes that S.Z. later retracted his confession and says that he gave instructions for the forensic doctor in the Charles Nicole Hospital to administer an anal test to determine whether K.B “bore signs of the practice of homosexual activity” recently or whether he “practices sodomy in a habitual way.”

The judge’s indictment of K. B. was based on S.Z.’s confession to the police, later repudiated, from “the circumstances of the case, which show that the two men had no other reason to go to K. B.’s house” and K. B.’s refusal to take the anal test. The judge wrote: “given that the test was performed 20 days after the reported incident, the forensic doctor was not able to find signs of anal penetration because those signs disappear five days after the act.”

“Free” (nickname), 32, hairdresser

Free said that on the night of April 5, 2018, he went with a female friend from Sousse to Monastir for drinks and to meet his boyfriend. When they arrived at around 9 p.m., he said, a police patrol stopped them and asked for their papers, then told the woman to accompany them to the station for further identity checks. Free waited outside the station.

While waiting, Free received an angry message from his boyfriend asking him why he was late. Free explained where he was and snapped a photo of the station as proof. A police officer saw him and confiscated Free’s telephone, saying he had endangered state security. The officer took him to an interrogation room, where another officer handcuffed him to a chair. An officer searched the phone and finding nude photos of Free, then searched his social media activity and read the conversations he had with men on gay dating apps and his chats with his boyfriend on Facebook Messenger, some of them sexually explicit.

Free said that the police officer turned to him and said, “I hate you, you sodomites. You will have to pay for your depravity.” Other police officers in the room insulted Free, he said. The officer interrogated him about his sexual activity, wrote a report, and told him to sign it. When Free refused, a policeman slapped him in the face and said, “Ah, now you are trying to be a man. Just sign here, you scum.” Free signed the report without reading it.

At no point during the interrogation did the police advise Free of his right to speak to a lawyer. At around midnight, they moved him into a cell, where he spent the night. The following day, he was taken before a prosecutor, who charged him with sodomy but decided to release him provisionally pending trial. On June 6, he appeared before the first instance court in Monastir. The presiding judge closed the courtroom to the public.

The first question he asked me was whether I am used to the practice of sodomy. I told him I was not. He asked the question again, then asked, “Then why did you confess?” I answered, “Because the police forced me to.” The judge asked, “But if you are not a sodomite, why do you dress like this, why do you look like one of them?”

He said the judge adjourned the trial to June 14, when he convicted Free and sentenced him to a four-months sentence with probation, based on his phone conversations and his forced confession. Free has appealed.

M. R., 26, paramedic

M.R. worked in a hospital in Tebourba, a city 40 kilometers west of Tunis. He fled to France and applied for asylum after being charged under article 230 and granted pretrial release.

M.R. said he had always hidden his sexual orientation because of severe social stigma. In November 2017, he chatted with a man on Facebook. The man, called A.F., sent him photos, and they decided to meet. When they did, M.R. realized that the photos were fake and told A.F. that he would not have sex with him. A few days later, on November 28, A.F. banged on his door at around 4 a.m. Fearing scandal, M.R. opened the door to find A.F. drunk and wielding a knife. A.F. slapped him on the face, ordered him to remove his clothes, and raped him, he said, threatening to cut his throat. After a few hours, A.F. told M.R. to buy A.F. cigarettes. M.R. went to the Tebourba police station and filed a rape complaint.

When I told the police officers about the rape, they asked me how I knew the man and how we met. I dodged the questions, but they insisted. I told them that I am gay, and their behavior changed instantly. The station chief said: “Ah, so you were the one who initiated this, you are an accomplice to the crime, there is no rape here – you deserve this.” Then, he handed me a requisition order and told me to go get an anal test the following day at Charles Nicole Hospital.

The police interrogated M.R., then accompanied him to his apartment, where they arrested A.F. The police told M.R. to undergo the anal examination, then report to the First Instance Court in Manouba. M.R. consulted the nongovernmental association Shams, which defends sexual minorities, and decided to skip the anal test. When he reported to the court, the investigative judge treated him as a criminal, not a victim. M.R. said:

He asked questions about my sex life and when I started practicing sodomy with other men. He said that I deserved everything that had happened to me and that I should be ashamed of myself.

M.R. said that the judge charged him with sodomy and granted him pretrial release. A.F. was kept in custody and charged with sodomy and rape.

The indictment of M.R., prepared by the investigative judge and dated December 13, 2017, provides purported details from M.R.’s intimate life, including confessions that he is gay. The indictment also relies on the confession from A.F. and cites a condom seized at M. R.’s house as evidence.

M.R. said that, three days after the encounter with A.F., he reported to work at the hospital. The director handed him a dismissal notice on the grounds that he was facing trial.

I had to go back to my family’s place, as I had no salary anymore. It was like living in a prison. My father and older brother beat me many times, my father even burned me with a cigarette. They did not allow me to go out, they said they were ashamed of me.

Having lost everything, he left Tunisia for France.

I had no other choice, I felt rejected by everyone, my family, society, my colleagues. And I was afraid of going to prison.

Mounir Baatour, M.R.’s lawyer, told Human Rights Watch that the case is stalled in the first instance court in Manouba, and has yet to go to trial. On May 15, 2018, indictment chamber sent the indictment to the cassation court for a legal review, which is pending.

R. F., 42, day laborer, and M.J. 22, unemployed

On June 12, 2018, police in Sidi Bouzaiane arrested R.F. and M.J. after R.F. went to the police to say that M.J. had refused to leave R.F.’s house.

M.J. said that the police came to his house and took both men to the police station at around midnight. They interrogated them in the same room, asking them how they met. A police officer took R.F.’s phone and watched videos stored on it, then said to R.F., “So you are a miboun [a degrading term for gay]. M.J. said:

One of the four officers present during interrogation slapped R.F. on the face. Then he turned toward me and asked, “So what were you both doing in the house? I’m sure you were having sex, so you too must be a miboun. You are staining this country,” he said.

M.J. said that policemen beat him on his face, head, and back. When the police finished the interrogation at 3 a.m., they presented a written report and told M.J. to sign it. He said he asked to have a lawyer first, but they refused to let him call one and insulted him. He signed the report.

The police report, reviewed by Human Rights Watch, states that neither man requested a lawyer. R.F.’s purported statement, as the police recorded it, describes in graphic terms how he habitually practices sodomy and has sex with men. The police report states that officers searched R.F.’s smartphone and found videos of R.F. having sex with men. The police confiscated his phone, the report says, as “evidence of the crime.”

Two days after the arrest, M.J. said, he and R.F. appeared before a prosecutor, who asked them: “Aren’t you afraid of God’s judgment?” He ordered pretrial detention, and they were sent to the Sidi Bouzid prison. M.J. said that one of the prison guards harassed him and asked him vulgar questions such as: “How you do this? Are you getting fucked for money? Why are you fucking men? Aren’t there enough women to fuck in this country?”

He said he was put in a cell with 100 other men, who seemed to have been informed about his “crime.” Over the following days, his cellmates insulted, beat, and sexually harassed him. He said that one night, he refused to have sex with the cell “strongman”, so the man and two others beat him. He said they held his arms, while the strongman slapped him on the face and punched him on the chin.

After a week in detention, he appeared before an investigative judge, who asked him about his sexual behavior. M.J. said he admitted that he is gay. He said he had done nothing wrong, but the judge replied, “You are harming society.”

The first instance court in Sidi Bouzid sentenced the two men on June 12 to three months in prison for sodomy. The appeals court upheld the sentence.

S.C., 24 and A.B., 22

Police arrested S.C. and A.B. in Sousse on December 8, 2016, when they were allegedly caught committing sodomy in public. They were sentenced, on March 10, 2017, to eight months in prison under article 230 of the penal code and not on charges related to public indecency. The police report describes their sexual intercourse in detail and concludes that S.C. “committed active sodomy,” while A.B. was a “passive sodomite.”

The judgment from the first instance court in Sousse, which Human Rights Watch reviewed, states that both denied committing sodomy or being homosexuals. It states that they were both subjected to anal examinations on December 9, 2016, that turned out “negative.” The judge concluded that: “the results of the anal tests cannot exonerate the accused of the crime, especially given that the [tests] were performed sometime after the facts.” The court based the guilty verdict only on the declarations by police officers and wrote that: “it is appropriate to sentence them to eight months as an adequate and dissuasive sentence proportional to the offense that they have committed.”

A.C., 18, student

A.C. was arrested three times for sodomy. The first time was in August 2017, when he was 17. Police forces arrested him at his house after his two sisters denounced him as gay and took him to the Kasba police station in Tunis. He said that they interrogated him extensively about his sexual orientation and took his smart phone and searched his personal data. The next day, they took him to a forensic doctor in the Charles Nicole hospital for an anal examination. He said he did not have a lawyer and that the police did not inform him of his right to have one.

I did not understand what was going on. The police told me that the test is mandatory. The doctor told me to go on an examination bed and to bend, and then he inserted his fingers in my insides. The doctor did not explain what the test is about.

A.C. said he was released without charge after spending two days in the Kasba police station.

On May 15, 2018, he went to the police station in Sijoumi, in Tunis, in response to a summons. He said police officers told him his family had filed a complaint and questioned him for almost four hours. A.C. confessed to being gay. The police took him to Bouchoucha detention center in Tunis, where he spent the night. The next day, May 16, he appeared before the Tunis first instance court in Sidi Hassine, where an investigative judge interviewed him. The judge asked him: “Why are you like this? Don’t you know that what you’re doing is haram [forbidden under Islam]?”

I told the judge that I didn’t break any laws, that what I do is my personal business. I did not hurt anyone. This is my private life and should not be the concern of anyone else.

He said the judge ordered his detention for two months in a juvenile rehabilitation center, as he was still a child, and forced him to undergo “conversion therapy,” a thoroughly discredited method to change someone’s sexual orientation or gender identity. At the center, a psychiatrist visited him twice, telling him that “he should work on changing himself and his mind.” He appeared before another investigative judge, on June 25, who released him.

A.C. said that on September 2, he was running some errands with his boyfriend when the police stopped them and asked for their identity cards. The police told A.C. that his family had filed a complaint against him. They took him to Hay Hlel police station in Tunis, where they questioned him about his sexual life, confiscated his phone, and looked at his photos and personal conversations. A prosecutor issued a warrant to detain him, and he spent eight days in the Bouchoucha detention center. On September 20, he appeared before a judge, who released him without charge.

F.B, 28; N.A, 21 and B.K., 27, day laborers

In Sousse, a coastal city, the police arrested three men in January 2017, after neighbors complained that they suspected the men were gay. In the indictment, which Human Rights Watch reviewed, the investigative judge states that the police went to the house where the men were staying, seized their phones, on which they found “evidence that they were sodomites,” as well as “women’s clothing,” and took the men to the police station.

The investigative judge ruled that the men harmed public morals based on the content of the seized phones and “because they dressed up like women, used lipstick, and talked in a languid way.” The police report and the indictment, which usually would include information about a judicial warrant, did not indicate that the police had one. The three men were sentenced to two months in prison for the charge of harming public morals and served their terms.

Posted: January 1, 1970, 12:00 am

Muslim protesters hold an anti-LGBT rally outside a mosque in the provincial capital Banda Aceh, Aceh province, Indonesia on February 2, 2018.

© 2018 Antara Foto / Irwansyah Putra

Over the weekend, 10 women accused of being lesbians were arrested in West Sumatra, after a police trawl of Facebook threw up pictures of two of them kissing and hugging.

And last month, police in Bandung, the capital of Indonesia’s West Java province, raided the private home of two men and arrested them for allegedly running a Facebook group for same-sex couples. Police confiscated mobile phones and condoms during the raid and said the men would be charged for distributing indecent material on the internet.

This may seem absurd and abusive for a country that touts a motto of “unity in diversity” and has had lesbian, gay, bisexual, and transgender (LGBT+) rights groups operating since the 1980s. But these arrests are nothing new in Indonesia – far from it.

In October, government officials in various regencies of West Java – the country’s most populous province, with more than 46 million people – publicly called for policies that would target LGBT+ people for arrest and “rehabilitation”.

Local decrees propose handing over lists of allegedly gay and bisexual men to authorities, changing school curricula to teach falsehoods about and hatred of LGBT+ people, subjecting gay and trans people to medical intervention to change their sexual orientation or gender identity, censoring speech about their rights, and other measures supposedly to combat the “LGBT+ threat”.

When queried on the matter of gay and trans people and organisations in the province, Governor Ridwan Kamil said he wanted to “eradicate such things”.

The arrests form part of a larger national trend.

The vast archipelago has been engulfed by a government-driven moral panic about gender and sexuality for the past three years. Politicians, government officials and state offices have issued anti-LGBT+ statements calling for everything from criminalisation and “cures” for homosexuality, to censorship of information related to gay and trans individuals and activities.

The current tension began nationally in January 2016, when Indonesia’s higher education minister Mohammed Nasir tweeted that he wanted to ban all LGBT+ student groups from university campuses. Within two months, dozens of public officials had contributed to a cascade of anti-LGBT+ vitriol. Defence minister Ryamizard Ryacudu labeled gay and trans rights activism a “proxy war” on the nation led by outsiders, and more dangerous than a nuclear attack.

Throughout 2017, police across Indonesia raided saunas, nightclubs, hotel rooms, hair salons and private homes on suspicion that gay or trans people were inside.

Militant Islamists often tipped off police or accompanied them during these raids. In 2017, police apprehended at least 300 people because of their presumed sexual orientation or gender identity – a spike from previous years and the highest number ever recorded in Indonesia. 

Two men were publicly flogged, for allegedly having sex in Aceh province, the country’s only region where Sharia (Islamic law) is fully enforced. 

The combination of anti-LGBT+ rhetoric, public torture of gay people, and police targeting private spaces has wrenched away what little public health infrastructure there was. This is bad news: Indonesia’s HIV rates in men who have sex with men has spiked five-fold over the past decade.

LGBT+ people in Indonesia have historically lived with intermittent bouts of animosity, but tolerant social attitudes provided a shield that typically prevented outright violence. Some ethnic communities have always recognised non-binary genders – the Bugis language in Sulawesi Island has five words for gender. Despite attempts in recent years through the Constitutional Court and parliament, the government has never criminalised adult consensual same-sex conduct.

So where is this rising intolerance in Indonesia coming from?

President Joko “Jokowi” Widodo maintains that Indonesia is a beacon of moderation and tolerance. But he has repeatedly failed to protect the rights of the country’s beleaguered minorities. In fact, successive governments have failed to effectively respond to harassment, threats and violence by militant Islamists against religious, ethnic and sexual minorities.

Indonesia’s presidential election in April 2019 could mean an uptick in politicians scapegoating LGBT+ people for cynical political gain. If the past three years are any evidence, the verbal threats politicians issue can quickly metastasise into physical attacks.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Tanzania Sisi Kwa Sisi Foundation, a non-governmental LGBT youth organization based in Dar Es Salaam. On October 17, 2017, police raided a workshop at a hotel in Dar Es Salaam, where lawyers and activists were meeting to discuss HIV prevention. 

©2013 Human Rights Watch
 
(Nairobi) – Tanzania’s Ministry of Foreign Affairs’ disavowal of incendiary anti-gay comments by a Dar es Salaam official is a positive development, but will mean little unless the government reforms its laws and policies that discriminate against lesbian, gay, bisexual, and transgender (LGBT) people, Human Rights Watch said today.

On November 4, 2018, following major international news coverage of the inflammatory remarks, Tanzania’s Ministry of Foreign Affairs issued a statement that a proposed anti-gay campaign by Regional Commissioner Paul Makonda, whose district includes Dar es Salaam, represented “his opinion and not the position of the government.” The ministry pledged to “continue to respect and protect” internationally recognized human rights. However, the same day, activists told Human Rights Watch that police had arrested people in Zanzibar on homosexuality-related charges.

“It’s encouraging that the government of Tanzania has pledged to uphold its human rights obligations, including with regard to sexual orientation,” said Neela Ghoshal, senior LGBT rights researcher at Human Rights Watch. “But the statement will provide cold comfort to LGBT people in Tanzania if the authorities continue to subject them to arbitrary arrests and discrimination.”

Makonda triggered panic among LGBT people on October 31 when he held a news conference announcing plans to round up suspected gays and subject them to forced anal examinations and conversion therapy. He said he would arrest or chase out all the gay men in the city, proclaiming, “In Dar es Salaam, homosexuality is not a human right.” Makonda urged citizens to report gay men to the police, claiming he had already collected hundreds of names.

Tanzania’s anti-homosexuality law is among the world’s harshest, prescribing 30 years to life in prison for “carnal knowledge against the order of nature.” Human Rights Watch and a Tanzanian coalition of groups working with sexual minorities documented dozens of cases of police abuse, public violence, and discrimination in accessing health services in a 2013 report. In the next two years, some improvements took place. Tanzania’s HIV/AIDS agencies reached out to key populations in the HIV epidemic, ensuring that they had a seat at the table in decision-making, and international health organizations scaled up LGBT-friendly HIV services. Some politicians and police officials appeared open to dialogue. New organizations formed, including several representing transgender people.

However, since the election of President John Magufuli in December 2015, Tanzania has had a marked decline in respect for free expression, association, and assembly, Human Rights Watch said. The authorities’ rhetorical attacks on rights have been accompanied by repressive laws and harassment and arrest of journalists, opposition members, and critics, while progress on LGBT health and rights has been reversed. Police raided health and human rights workshops aimed at sexual and gender minorities, arbitrarily arresting participants. They rounded up suspected gay men in the streets, reportedly subjecting some to forced anal exams, a discredited method of “proving” homosexual conduct that the United Nations and the African Commission on Human and Peoples’ Rights have denounced as torture.

The authorities shut down gay-friendly health clinics and restricted access to water-based lubricant, an HIV prevention tool. They suspended one Tanzanian organization, interrogated leaders of others, and detained and deported a team of South African lawyers, all because of their work on LGBT health and rights. Magufuli himself stated that “even cows” disapprove of homosexuality.

Makonda, the regional commissioner, has been a prominent advocate of this repression. At a July 2016 rally, he threatened to arrest gays and their social media “followers” and to ban organizations that “promote homosexuality.” In his news conference on October 31, 2018, Makonda said he had established a task force to track down gay men, sex workers, pornographers, and people conducting fraudulent fundraisers on social media.

His campaign appeared to have been prompted by a viral video of explicit heterosexual sex, but the bulk of his 30-minute news conference centered on stirring up homophobic sentiment. He threatened to “test” gay men for homosexuality, provide counselors for those who want to “get out of homosexuality,” and jail others for life, saying his task force would start its work on November 5.

The Ministry of Foreign Affairs statement is vague on what steps Tanzania will take to uphold its international commitments, which Tanzania’s anti-homosexuality law and acts of anti-LGBT repression clearly violate. The UN Human Rights Committee, which interprets the International Covenant on Civil and Political Rights, to which Tanzania is a party, has stated unambiguously that arrests based on sexual orientation violate the rights to privacy and nondiscrimination. Tanzania is also party to the International Covenant on Economic, Social and Cultural Rights, which protects the right to the highest attainable standard of health, and prohibits discrimination in access to this right based on sexual orientation.

“If the government is sincere in rejecting Makonda’s anti-rights messages, it needs to ensure that all people in Tanzania enjoy the same human rights regardless of their sexual orientation or gender identity,” Ghoshal said. “That means ending police repression and forced anal examinations, allowing LGBT organizations and LGBT-friendly health clinics to operate, and reforming laws that criminalize people for who they are or whom they love.”

Posted: January 1, 1970, 12:00 am

International LGBT Pride Day in Historic Center, Mexico City in June 2012. 
 

©2012 Ismael Villafranco/Wikimedia Commons

A Mexican court ruled on October 19 that the federal government must grant a marriage license to a same-sex couple living in the United States. The authorities should embrace the decision, which is consistent with Mexico’s obligations under international law and its own stated commitment to the rights of lesbian, gay, bisexual, and transgender (LGBT) people.

The couple, both Mexican citizens, applied for a marriage license in May at the Mexican Consulate in New York City, where they live. Couples living abroad must request a marriage license from their consulate. This straightforward administrative procedure takes less than a week for most different-sex couples. But the consulate turned away the same-sex couple in New York on the grounds that the 1928 Mexican Federal Civil Code does not recognize same-sex marriage.

The October 19 ruling, from the Second District Civil Court, found that the denial was based on a discriminatory interpretation of a civil code article setting the minimum age for “a man” and “a woman” to marry. But the Supreme Court has established that under article 1 of the Mexican Constitution, authorities should interpret the law in a way that “is most protective of human rights.”  

The ruling rightly rejected the Foreign Affairs Ministry’s argument that the New York couple suffered “no true harm” as they could “go to Mexico City to get married there.” But nearly 12 million Mexican citizens live abroad. It is unreasonable and discriminatory to expect same-sex couples to travel thousands of miles to accomplish what different-sex couples can do in a matter of hours.

A 2015 Supreme Court of Justice ruling found that constitutional principles of equality and nondiscrimination require all states in Mexico to recognize same-sex marriage, though only 12 states, including Mexico City, do so without an additional court order.

The October 19 ruling is consistent with Advisory Opinion 24 of the Inter-American Court of Human Rights, which establishes that parties to the American Convention, including Mexico, “must ensure access to all the legal institutions that exist in their domestic laws to guarantee the protection of the rights of families composed of same-sex couples, without discrimination.”

The Foreign Affairs Ministry, the Attorney General’s Office, and/or the Federal Congress have two weeks to challenge this ruling. They shouldn’t. Instead, they should keep Mexico at the forefront of progress on LGBT rights.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Interior Ministry officers guard the LGBT (lesbian, gay, bisexual, and transgender) community rally "VIII St.Petersburg Pride" in St. Petersburg, Russia August 12, 2017.

© 2017 Reuters

A court in Russia has dismissed a case brought against a 16-year-old boy alleging he had broken the country’s absurd and noxious “gay propaganda” law. The 2013 law effectively prohibits any positive information about “non-traditional sexual relations” from public discussion.

In August 2018, Russia’s Commission on Minors and the Protection of Minors’ Rights fined Maxim Neverov 50,000 rubles (US$760) for violating the “gay propaganda” law. The commission stated that Neverov had posted “some photographs of young men whose appearance (partly nude body parts) had the characteristics of propaganda of homosexual relations...” on his Vkontake – a Russian social media site – account. Neverov was the first minor to be fined under the law, and immediately filed an appeal against the ruling.

The purported rationale behind Russia’s “gay propaganda” ban is that portraying same-sex relations as socially acceptable threatens the intellectual, moral, and mental well-being of children.

While supporters of the law claim it protects children, to the contrary the ban directly harms them by denying access to essential information and perpetuating stigma against lesbian, gay, bisexual, and transgender (LGBT) children and family members. The law has rightly been condemned by the UN Committee on the Rights of the Child, the European Court of Human Rights, the Organization for Security and Co-operation in Europe, and the Council of Europe.

Neverov told reporters he was surprised by the court’s judgment. He fully expected to be found guilty, as several other courts have fined activists under the “gay propaganda law” over the past five years. Earlier this year, the government used the “gay propaganda” law to target ParniPlus, a website raising awareness about the exploding HIV epidemic among men who have sex with men. Meanwhile, the head of Moscow’s Federal AIDS Center has called Russia’s HIV epidemic a “national catastrophe,” and prevalence rates among men who have sex with men have increased dramatically in recent years – a trend some leading epidemiologists link closely with the anti-gay propaganda law’s stifling of sexual health information.

Justice and reason prevailed in Neverov’s case. This should become the norm, not the exception, as Russia’s “gay propaganda” law continues to get exposed for what it is: a flimsy, cynical excuse to discriminate against LGBT people.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Indonesian government officials made a series of anti-LGBT comments, resulting in proposals of laws which pose a serious threat to the rights and safety of LGBT Indonesians.

(Jakarta) – Indonesian officials should uphold the rights of lesbian, gay, bisexual, and transgender (LGBT) people in the face of renewed anti-LGBT statements and discriminatory policy proposals, Human Rights Watch said yesterday in a letter to Governor Ridwan Kamil of West Java province.

Throughout October 2018, government officials in various regencies of West Java province have publicly called for policies that would target LGBT people for arrest and “rehabilitation.” Local decrees and other official documents that Human Rights Watch reviewed propose handing over lists of allegedly gay and bisexual men to authorities, changing school curricula to teach falsehoods about and hatred of LGBT people, subjecting LGBT people to medical intervention in an attempt to change their sexual orientation or gender identity, censoring speech about LGBT rights, and other measures supposedly to combat the “LGBT threat.”

“Indonesian officials at all levels need to protect LGBT people from violence and discrimination,” said Andreas Harsono, Indonesia researcher at Human Rights Watch. “West Java’s governor, Ridwan Kamil, should unambiguously support the basic rights of all Indonesians, including LGBT people.”

On October 18, police in Bandung, the capital of West Java province, raided a private home and arrested two men for allegedly running a Facebook group for same-sex couples. Police confiscated five mobile phones and 25 condoms during the raid, continuing a disturbing pattern of targeting people in private homes because of their suspected sexual orientation, and of using condoms as evidence of a supposed crime.

Indonesia has been engulfed by a government-driven moral panic about gender and sexuality, Human Rights Watch said. Beginning in early 2016, politicians, government officials, and state offices issued anti-LGBT statements – calling for everything from criminalization and “cures” for homosexuality, to censorship of information related to LGBT individuals and activities.

Throughout 2017, police across Indonesia raided saunas, nightclubs, hotel rooms, hair salons, and private homes on suspicion that LGBT people were inside. Militant Islamists often tipped off police or accompanied them during these raids. In 2017, police apprehended at least 300 people because of their presumed sexual orientation or gender identity – a spike from previous years and the highest number ever recorded in Indonesia. The government’s failure to halt arbitrary and unlawful raids by police and militant Islamists on private LGBT gatherings has derailed public health efforts to curb HIV in men who have sex with men.

After a February 2018 visit to Indonesia, the United Nations high commissioner for human rights, Zeid Ra’ad Al Hussein, stated that, “The hateful rhetoric against [LGBT Indonesians] that is being cultivated seemingly for cynical political purposes will only deepen their suffering and create unnecessary divisions.”

“Vitriolic anti-LGBT rhetoric from Indonesian officials gives social sanction and political cover to violence and discrimination,” Harsono said. “Governor Kamil needs to uphold ‘unity in diversity’ by publicly opposing officials who treat LGBT people as a threat and putting an end to unlawful police behavior.”

Posted: January 1, 1970, 12:00 am

International LGBT Pride Day in Historic Center, Mexico City in June 2012. 
 

©2012 Ismael Villafranco/Wikimedia Commons

A Mexican Supreme Court ruling  on October 17 in a Veracruz case may have broader implications for transgender people who want to change their name and gender on official documents.

The ruling came in response to a petition filed by a transgender person from Veracruz who contended that in refusing to change their name and gender marker on their birth certificate, the municipal Civil Registry had violated their rights. In a ruling that was the first of its kind in Mexico, the court said that the person could change their name and gender marker on an official document through a simple administrative process, based solely on their own declaration of their gender identity.

Veracruz’s civil code requires transgender people to go before a judge to seek such changes. The Supreme Court found that this requirement constituted discrimination on the basis of gender identity, given that Civil Registries were making other substantive changes to identity documents without requiring a court ruling.  

The case may seem at first glance to resolve a minor, technical issue, and its reach is limited. The case was filed as a request for an amparo, or injunction, from the Supreme Court, meaning that its outcome only affects the petitioner. The Civil Registry in Veracruz could still turn away the next person who seeks to modify their documents, setting in motion another legal challenge, and the case has no immediate impact at all on other registries throughout the country.

But the ruling sends an encouraging signal that authorities who try to defend these policies in court are likely to be fighting a losing battle. Another case before the Supreme Court has wider-reaching implications. The court will soon rule on contradictory judgments from circuit courts in different states on legal gender recognition.

In repeated cases litigated by the local organization Amicus, the Guanajuato circuit courts had refused to provide an administrative path to gender recognition. On the other hand, a circuit court in Baja California has ruled that people have the right to change their gender markers in Civil Registries. The upcoming ruling, to address the two conflicting sets of jurisprudence, will be binding on all lower courts – and the Veracruz case gives a promising indication of the Supreme Court’s thinking.

The Veracruz ruling emphasizes that the right to legal gender recognition is protected by both the American Convention on Human Rights and the Constitution. Gender recognition creates the conditions to guarantee “the free development of personality, the right to identity, the right to privacy, the recognition of legal personality and the right to name,” the court said. It added that changing one’s gender markers should not require medical or psychological evaluations or evidence of surgery or hormones, the ruling states, and changes should be confidential and expedited.

The ruling cites the groundbreaking January 2018 Inter-American Court of Human Rights advisory opinion, which maintained that states are obligated under the American Convention to establish efficient, inexpensive, and straightforward legal gender recognition procedures based solely on the “the free and autonomous decision of each person” and that forcing transgender people to argue for a change in gender markers before a judge would constitute an “excessive limit” on their rights.

For transgender people, this is no minor technical question. If your gender marker contrasts with your appearance, any juncture in daily life that requires showing your identify card – a traffic stop, a financial transaction, a medical appointment – is laden with the risk of ridicule, interrogation, and even violence.

Going through a lengthy court process to change your documents can be time-consuming, humiliating and overwhelming. Filing a piece of paper at the Civil Registry is much easier. But so far, only Mexico City and two other states, Nayarit and Michoacán, have laws that allow straightforward administrative changes of gender markers.

If the Supreme Court finds that there is a right to an administrative path to legal gender recognition in the contradictory judgments case, all lower courts will be bound to uphold this right – but civil registries might still ignore the ruling, continuing to force individual applicants to go to court. Same-sex partners who apply for marriage licenses have faced similar obstacles at civil registries. Despite a 2015 Supreme Court ruling in support of marriage equality, many registries have turned same-sex couples away until they come back with individual court orders compelling the registries to marry them. Fewer than half of Mexico’s states have passed laws that require civil registries to treat all marriages equally.

In the wake of the Supreme Court ruling on Veracruz, the Inter-American Court opinion, and the pending case, Mexican states should read the writing on the wall, and pass legislation establishing simple, rights-respecting procedures for gender identity changes.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Protected by Federal Police agents, Social Liberal Party (PSL) presidential candidate Jair Bolsonaro votes on October 28 at the Rosa da Fonseca Municipal School in Rio de Janeiro, Brazil.

© 2018 Tânia Regô/Agência Brasil

(São Paulo) - Brazil´s judiciary and other key institutions should resist any attempt to undermine human rights, the rule of law, and democracy under Jair Bolsonaro’s government, Human Rights Watch said today.

Bolsonaro, a pro-torture, openly bigoted member of Congress, won a run-off election on October 28, 2018 and will take office as president of Brazil on January 1, 2019.

“Brazil has independent judges, committed prosecutors and public defenders, courageous reporters, and a vibrant civil society,” said José Miguel Vivanco, Americas director at Human Rights Watch. “We will join them in standing up against any attempt to erode the democratic rights and institutions that Brazil has painstakingly built in the last three decades.”

Bolsonaro defeated the Workers Party candidate, Fernando Haddad, after a campaign tarred by political violence. Many of the victims were lesbian, gay, bisexual, and transgender (LGBT) people, women, and Afro-Brazilians.

On October 8, a man stabbed to death an Afro-Brazilian artist, Romualdo Rosário da Costa, in Salvador, allegedly after the man became angry when da Costa revealed he had voted for Haddad in the first election round. Witnesses said several men shouted Bolsonaro´s name during an argument with a transgender woman in São Paulo on October 16, then killed her. Bolsonaro himself was stabbed during a rally in September.

More than 140 reporters covering the elections were harassed, threatened, and in some cases physically attacked, the Brazilian Association of Investigative Journalism (Abraji) found.

In his decades-long career in Congress and as a presidential candidate, Bolsonaro has endorsed abusive practices that undermine the rule of law, defended the country´s dictatorship, and has been a vocal proponent of bigotry, Human Rights Watch said.

  • During the presidential campaign, Bolsonaro announced that he would not accept the election results unless he won. He said that “we will shoot” Workers Party supporters and told “leftist outlaws” to either leave the country or find themselves in jail. He said he would like to double the size of the Supreme Court so that he can pack it with people who share his views. Bolsonaro´s running mate, the retired army general Antônio Hamilton Mourão, raised the possibility of a “self-coup” by the president with support from the armed forces in case of “anarchy.”
  • Bolsonaro has endorsed abusive practices that undermine the rule of law. He has said Brazil´s military dictatorship (1964-1985) made a mistake by torturing people when it should have killed them, repeatedly referred to one of the worst torturers of the dictatorship as a “hero,” and said police should have “carte blanche” to kill criminal suspects.

“Human Rights Watch will closely monitor the rhetoric and actions of the Bolsonaro government,” Vivanco said. “We will continue doing the rigorous, independent research and advocacy we have carried out in Brazil for the last decades in defense of human rights for all Brazilians, regardless of gender, sexual orientation, race, political beliefs, or religion.”

The Brazilian presidential candidate for the Workers' Party, Fernando Haddad, votes at the Brazilian International School in São Paulo, Brazil.

© 2018 Rovena Rosa/Agência Brasil
Posted: January 1, 1970, 12:00 am

 

Summary

They [police] started slapping and punching me, forcing me to confess that I am “gay.” The beating lasted for more than an hour.
—Olivia, 19-year-old transgender woman, May 2018, Lilongwe

In Malawi, a nation that criminalizes same-sex conduct, lesbian, gay, bisexual and transgender (LGBT) people face routine violence and discrimination in almost all aspects of their daily lives. Police often physically assault, arbitrarily arrest and detain them, sometimes without due process or a legal basis, at other times as punishment for simply exercising basic rights, including seeking treatment in health institutions. Several transgender individuals told Human Rights Watch that the combination of criminalization of adult consensual same-sex conduct and social stigma has had an insidious effect on their individual self-expression, forcing them to adopt self-censoring behavior because any suspicion of non-conformity may lead to violence or arrest. Several gay men in the capital city, Lilongwe, married women because of the nation’s anti-homosexuality laws, to conform to society’s expectations, and avoid suspicion and arrest.

The challenges facing LGBT people in Malawi have been further exacerbated by the lack of clarity and divergent opinions regarding the legality of a moratorium on arrests and prosecutions for consensual homosexual acts, issued in 2012 by the Ministry of Justice and Constitutional Affairs. In 2016, a high court order suspended the moratorium pending judicial review by the Constitutional Court. This uncertainty, Human Rights Watch research indicates, seemed to have encouraged private individuals to attack LGBT people with impunity, while health providers frequently discriminate against them on the grounds of sexual orientation. 

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© 2018 Human Rights Watch

This report, based primarily on interviews with 45 LGBT people in the nation’s two major cities Lilongwe and Blantyre in 2018 and with Malawian activists, documents the human rights impact of criminalization of same-sex conduct in Malawi.

Many interviewees, particularly gay men and transgender women, told Human Rights Watch that the lack of certainty about the moratorium on arrests and prosecutions, combined with routine discrimination and stigma in health care settings, creates barriers to seeking HIV services and treatment. Punitive legal environments, stigma, and discrimination based on sexual orientation together with high levels of violence against key populations impedes sustainable national responses to HIV, interviewees told Human Rights Watch. Evidence shows that when discrimination in public heath care centers and hospitals is routine, this leads to a climate of fear that fuels human rights violations and deters transgender women, gay men and other men who have sex with men (MSM) from seeking and adhering to HIV prevention, treatment, care, and support services.

The moratorium can be traced back to a Blantyre court’s 2010 conviction of Steven Monjeza and Tiwonge Chimbalanga, who were arrested and charged with "unnatural offenses" and "indecent practices between males" under sections 153 and 156 of Malawi's Criminal Code. The magistrate sentenced them to 14 years in prison, one of the longest sentences for consensual same-sex conduct anywhere in the world in recent memory, according to activists in Malawi.

Bingu wa Mutharika, who was president at the time, pardoned Monjeza and Chimbalanga in May 2010 on “humanitarian grounds,” following international condemnation of the conviction, and the visit of the United Nations Secretary-General. Mutharika’s successor, Joyce Banda, pledged to decriminalize same-sex relations, and while she took no further action to amend the laws, her justice minister Ralph Kasambara suspended their enforcement in 2012 “until the time that parliament makes a decision.”

In December 2015, justice minister Samuel Tembenu reaffirmed the 2012 moratorium but a year later, following successful litigation initiated by Christian religious leaders, the Mzuzu High Court issued an order suspending the moratorium pending judicial review.

Other government institutions have also taken steps that could lead to the overturning of Malawi’s discriminatory laws. In September 2013, the Malawi High Court in Lilongwe commenced a review of the constitutionality of section 153(a) of the Penal Code that punishes “carnal knowledge against the order of nature” with up to 14 years in prison. The process is currently held up on procedural grounds but could be a path to decriminalizing consensual same-sex conduct in the country.  And in 2017, after initially announcing that it would conduct a public inquiry “to inform the national position on the controversial issue of LGBTI,” the Malawi’s Human Rights Commission relented after pressure from some of the nation’s human rights groups and announced that it would instead conduct a study on the rights of LGBT and intersex people in Malawi.

Criminalization means that in practice police violate the rights of LGBT people with impunity, with transgender people—who draw the attention of police officers because of their gender non-conformity but are often misread by police as “lesbian” or “gay” –apparently bearing the brunt of the violations. Olivia’s story was particularly harrowing. She told Human Rights Watch: “On November 6, 2017, police officers came to my house looking for me after my best friend was beaten by a mob at the market. I was not at home at the time, so they arrested my father instead. I went to the police station to look for him and when I arrived, three police officers took me into a small office inside the police station to question me.  One of the officers said that because of the way I look and dress, I must be gay. They started slapping and punching me, forcing me to confess that I am “gay.” The beating lasted for more than an hour. They told me to come back the next day. When I arrived, they immediately took me into a cell, but did not charge me with any crime. I was detained for five hours, and finally released when my mother paid 5000 MWK [US$7].”

Olivia’s experience is not atypical. Phillip, a 23-year-old transgender man from Lilongwe, told Human Rights Watch that in May 2017, three police officers physically assaulted him and a transgender male friend, warning them to stop “doing lesbian activities” and telling them that they were “unwanted people in Malawi.”

Criminalization also contributes to a climate of impunity for crimes committed against LGBT people by members of the public. In one of the cases documented in this report police refused to open a case when a transgender man reported a burglary at a police station, instead, police threatened to arrest him on homosexuality charges. He was detained for several hours and only released after paying a bribe. Many other LGBT people told Human Rights Watch that they were afraid to report crimes to the police.

Malawi’s anti-homosexuality laws contravene several regional and international human rights treaties which Malawi has ratified, including the African Charter on Human and Peoples’ Rights (African Charter), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The laws fail to conform to the right to non-discrimination, the right to equality before the law and equal protection of the law, and the right to privacy, and they contribute to violations of the right to liberty and security of the person, the right to the highest attainable standard of health, and the right to freedom of association.

Human Rights Watch calls on the government of Malawi to abide by its 2012 commitment and decriminalize consensual same-sex conduct, and on parliament to repeal all the anti-homosexuality provisions in the Penal Code. The Human Rights Commission should ensure that its study on LGBTI issues in Malawi provides information on rights abuses of LGBT people and make concrete recommendations to improve their situation. Furthermore, the Human Rights Commission in accordance with its mandate should establish a mechanism for receiving, processing and investigating complaints and support strategic litigation efforts aimed at ending discrimination on the basis of sexual orientation and gender identity. Human Rights Watch also urges the Ministry of Health to ensure non-discrimination on the basis of sexual orientation in provision of health and HIV-related services.

 

Methodology

This report is based primarily on information collected during two weeks of field research in Lilongwe and Blantyre in May 2018, telephone interviews in June and July 2018, and interviews with Malawian activists during the Pan Africa International Lesbian, Gay, Bisexual, Transgender and Intersex Association (ILGA) Conference held in June 2018 in Gaborone, Botswana.

In November 2017, on the sidelines of the 61st ordinary session of the African Commission on Human and Peoples’ Rights (African Commission) held in Banjul, Human Rights Watch, in partnership with Centre for the Development of the People (CEDEP), an LGBT organization in Malawi, and African Men for Sexual Health and Rights (AMSHeR), a regional organization, convened a side-event on the human rights situation of LGBT people in Malawi. At the end of the event, Malawi-based LGBT organizations and their Southern Africa-based partner organizations requested that Human Rights Watch research the human rights impact of criminalization of adult consensual same-sex conduct in Malawi based on our expertise in documenting LGBT human rights abuses.  

Representatives of three Malawian organizations—CEDEP, Ivy Foundation, and Lesbian, Intersex, Transgender and other Extensions (LITE) Foundation—helped identify interviewees known to have experienced violations. Human Rights Watch interviewed 45 LGBT people in Lilongwe and Blantyre. The two cities were selected based on the presence of non-governmental organizations, community-based activists and LGBT individuals known to the three organizations.  

The interviewees included 13 transgender men, nine lesbians, nine transgender women, nine gay men, four bisexual men and one bisexual woman.  Many of the most serious human rights violations documented in this report were against transgender people. Ordinary citizens and some members of the police force regard them as “lesbian” and “gay” due to lack of understanding of gender identity. They are primarily targeted on basis of presumed sexual orientation based on their gender expression.

The Malawi penal code expressly criminalizes sexual relations between women. According to interviewees, in popular perception lesbians are seen as women who transgress gender norms. Lesbians who conform to feminine gender expectations are generally able to go unnoticed and hence avoid social stigma. Transgender men, on the other hand, are perceived as lesbian based on their gender presentation. Because transgender men are more visible, and seen as lesbian, they are particularly vulnerable to discrimination, abuse and even violence.  

Human Rights Watch is aware that in many countries, intersex people experience human rights violations similar to those faced by LGBT people, as well as other violations specifically related to their sex characteristics, such as medically unnecessary surgeries conducted without informed consent. However, we did not seek out interviews with intersex people for this report and did not encounter any openly intersex people in the course of our research, so throughout this report we refer to “LGBT” people rather than “LGBTI” people.

In addition to interviewing LGBT people, a Human Rights Watch researcher also interviewed officials of the Malawi Law Reform Commission and the Ministry of Justice and Constitutional Affairs, a representative of the United Nations in Malawi, and attorneys involved in impact litigation cases before Malawi courts. Due to potential security risks for the researcher, we did not seek explanations and accounts of incidents from police stations and health care centers. Furthermore, we were concerned about reprisals against human rights defenders in retaliation for their engagement with an international human rights organization.

Interviews were conducted primarily in English by an English-speaking researcher or in Chichewa with the assistance of translators. All persons interviewed provided verbal informed consent to participate and were assured that they could end the interview at any time or decline to answer questions. Participants were not compensated, but we reimbursed transport costs and the cost of a meal to those who travelled long distances from their homes to meet Human Rights Watch. All interviewees have been given pseudonyms, with the exception of activists who are identified by their first and last names, and, in some cases, other identifying information has been withheld to protect their privacy and safety.

The report draws from relevant published sources, including United Nations documents, reports by other human rights organizations and academic articles. All documents cited in this report are publicly available or on file with Human Rights Watch.

On October 1, 2016, Human Rights Watch wrote to officials in the Ministry of Justice and Constitutional Affairs (see Annex 5), the Ministry of Health and Population (Annex 6) the Ministry of Home Affairs and Internal Security (Annex 7) and the Malawi Human Rights Commission (Annex 8) to present an advance and embargoed draft copy of the report and to request an official response. The government ministries and Human Rights Commission have not responded to our letters at time of writing.

 

I. Background

On Gays and Lesbians: Government should come up clear on the DPP [Democratic Progressive Party] administration stand on the issue of gays and lesbians. Gays and lesbians are worse than dogs, sons and daughters of the evil one – Jabulosi [Satan] their father. Arresting them won’t address this problem because sooner or later they are being released on bail. The best way to deal with them is to KILL them! It is pathetic to see our media houses parading these dogs on TV and newspapers hiding behind human rights – human rights my foot! THE DEVIL HAS NO RIGHTS!
—Facebook post by Ken Msonda, Spokesperson and Administrative Secretary of the Peoples’ Party, Malawi, January 2, 2016 [posted in personal capacity][1]

Opposition politician Ken Msonda’s incitation to violence against LGBT people came in reaction to the Malawian government’s reaffirmation, in December 2015, of a moratorium on arrests and prosecutions for consensual same-sex conduct. Defiant when a prosecutor charged him with hate speech over the Facebook post, Msonda told a journalist, “I stand by what I said and I will repeat it in court - homosexuals have no rights in Malawi and that is why they are being arrested.”[2]

Msonda’s claim that “homosexuals have no rights in Malawi” disregards Malawi’s obligations under the constitution, regional and international law, which protect the rights of everyone, regardless of their real or perceived sexual orientation or gender identity. Malawi’s Penal Code, however, fails to respect these universal rights. Chapter XV of the Code, on “Offences Against Morality,” contains several provisions that criminalize adult consensual same-sex conduct.[3] Section 153 provides that any person found guilty of committing an “unnatural offence /offence against the order of nature” is liable to 14 years in prison, with or without corporal punishment.[4] Section 154 punishes attempted unnatural offences with seven years’ imprisonment, and section 156 punishes “gross indecency” between males with five years in prison, with or without corporal punishment.[5] These laws date back to British colonialism,[6] but former president Bingu wa Mutharika’s government enacted a new anti-homosexuality law in January 2011, amending the Penal Code to extend the crime of “gross indecency” to women. Section 137A provides that any female person who, whether in public or private, commits “any act of gross indecency with another female” shall be guilty of an offence and liable to a prison term of five years.[7]

The laws have rarely been enforced throughout Malawi’s post-colonial history, but in December 2009, police in Blantyre arrested Steven Monjeza and Tiwonge Chimbalanga after local Blantyre newspapers reported on their traditional engagement ceremony. Prosecutors charged them with "unnatural offenses" and "indecent practices between males" under sections 153 and 156 of Malawi's Criminal Code.[8] In May 2010, a Blantyre magistrate court convicted them and sentenced them to 14 years in prison, the maximum sentence for “unnatural offenses.” As far as Malawian activists are aware, no one had ever received such a lengthy sentence for consensual same-sex conduct in Malawi, and Human Rights Watch research suggests that such sentences are extremely rare in most parts of the world. Nevertheless, there are numerous countries where homosexuality is punishable by death.[9] Handing down the sentence, the Chief Resident Magistrate in Blantyre, Nyakwawa Usiwa-Usiwa, stated:

…[W]e are sitting in place of the Malawi society. Which I do not believe is ready at this point in time to see its sons getting married to other sons or cohabiting or conducting engagement ceremonies. I do not believe Malawi is ready to smile at her daughters marrying each other. Let posterity judge this judgment.

So this case being "the first of its kind", to me, that becomes "the worst of its kind". I cannot imagine more aggravated sodomy than where the perpetrators go on to seek heroism, without any remorse, in public, and think of corrupting the mind of a whole nation with a chinkhoswe ceremony. For that, I will give you a scaring sentence so that the public must also be protected from others who may be tempted to emulate their [horrendous] example. [10]

International condemnation of the conviction, including in the form of a visit from the UN Secretary-General to plead for their release, led then-President Bingu wa Mutharika to pardon the two individuals in May 2010 on “humanitarian grounds.”[11] But their release did not reflect any commitment on the part of the government to revisit its discriminatory laws; indeed, in 2011, the government enacted a bill extending the crime of “gross indecency” to women.[12]

Joyce Banda who succeeded  Mutharika when he died in April 2012, in her first state of the nation address in May 2012, as part of a broader package of reforms, pledged to repeal a number of repressive laws, including sections 137A and sections 153 to 156 of the Penal Code.[13] She did not follow through on her commitment, but in November 2012, justice minister Ralph Kasambara suspended enforcement of the laws “until the time that parliament makes a decision.”[14]

Banda’s party lost the 2014 presidential elections, but a new government in 2015 reaffirmed its commitment to observing the 2012 moratorium in 2015 after police in Lilongwe arrested two men on charges of homosexual conduct.[15] In December 2015, members of a Community Policing Forum in Area 25, a township in Lilongwe, had apprehended two men whom they suspected of being gay, physically assaulted one of them, and handed them to the police at Nsungwi in Area 25, who transferred them to a police station. According to case notes from the Centre for the Development of People (CEDEP), based on their interviews with the victims:

The two men were transferred to a police station where they were interrogated and further insulted. Their pictures were taken by police officers without their consent and widely distributed on social media in Malawi. They were later made to walk to a nearby clinic for a medical examination. On the way to the clinic, their hands cuffed, the officers accompanying them made sure to draw peoples’ attention in a bid to humiliate them. At the clinic they were made to strip and an invasive examination of their private conducted. Still in handcuffs, they were later taken to Kamuzu Central Hospital (KCH), Lilongwe’s referral hospital, for further tests. On December 8, 2015 they were granted police bail and charged with contravention of section 153(a) of the Penal Code.[16]

On December 18, responding to outcry from activists over the arrest, Minister of Justice Samuel Tembenu, issued an official statement reaffirming the government’s commitment to the moratorium.[17] Tembenu affirmed that the charges against the two men had been dropped, stating:

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 offenses prohibiting homosexuality in 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.[18]

It was in this context that Ken Msonda, the opposition People’s Party MP, took to Facebook to advocate killing LGBT people—leading two activists to file criminal charges against him for inciting violence, as discussed further in section III below.

Other opponents of the moratorium took other measures to challenge it. In 2016, three applicants sought a court order declaring the moratorium illegal and unconstitutional—in other words, seeking to reactivate the anti-homosexuality law. They argued that only parliament had the legal mandate to suspend or repeal laws in Malawi. The Mzuzu High Court issued an injunction in their favor in May 2016, ruling that the moratorium should be suspended pending judicial review by a panel of no less than three judges.[19] No date had been set for the judicial review at time of writing.

Both Malawian and international organizations have supported the moratorium as an intermediate measure to end arbitrary arrests of LGBT people, but also maintain that it does not go far enough, and that Malawi must follow through on its commitment to repeal the discriminatory laws. When the UN Human Rights Committee reviewed Malawi’s rights record in July 2014, CEDEP and the Centre for Human Rights and Rehabilitation (CHRR) submitted a shadow report calling for decriminalization of adult consensual same-sex conduct and the prohibition of discrimination on the grounds of sexual orientation.[20] The Human Rights Committee, in concluding observations issued in August 2014, expressed concern about the criminalization of same-sex conduct in Malawi and related forms of discrimination and violence based on sexual orientation, gender identity and sex characteristics, and the fact that stigma impedes access to health care services for LGBTI people.[21]

UN Human Rights Committee Recommendations to the Government of Malawi, August 2014:

  • Review its legislation to explicitly include sexual orientation and gender identity among the prohibited grounds of discrimination and repeal the provisions that criminalize homosexuality and other consensual sexual activities among adults.
  • Introduce a mechanism to monitor cases of violence against lesbian, gay, bisexual, transgender and intersex persons and undertake all necessary measures to prevent those cases, prosecute the perpetrators and compensate the victims; 
  • Ensure that public officials refrain from using language that may encourage violence and raise awareness to eliminate stereotyping and discrimination; and
  • Guarantee effective access to health services, including HIV/AIDS treatment, for lesbian, gay, bisexual, transgender and intersex persons.

In a separate development that has potential to do away with section153(a) of the Penal Code, in September 2013, the Malawi High Court issued a notice that it would review the conviction of three individuals for "unnatural offenses,” based on the constitutionality of this provision. The case, which could lead to decriminalization of same-sex conduct but has faced significant delays, is discussed in greater detail in Section III below.

 

II. Abuses against LGBT People

In March 2017, I was living in Blantyre and dating a lady, but she was married to a man. People in the area found out about it and word got to her husband. At that time, I was staying at a hostel for our soccer club. She came to visit me at the hostel, stayed there for two nights. Her husband and brother came to my hostel looking for her. She saw them first and ran away. They were carrying bricks and started beating me with the bricks all over my body, shouting that I must stop being a lesbian, stop sleeping with fellow ladies. They forced me to go with them to their house. When we arrived, the husband asked me if I was sleeping with his wife. Out of fear for my life, I lied and said we were just friends. He fetched a metal rod and threatened to break my knees if I did not tell him the truth. Then he threatened to call the police to deal with me, to have me arrested. He kept beating me with the metal rod all over my legs. The beating lasted for five hours. Until today, I still feel the pain in my legs.
—Eric, 25-year-old transgender man, May 2018, Lilongwe[22]

LGBT individuals and human rights defenders in Malawi told Human Rights Watch that because of the pervasive homophobia and transphobia and the criminalization of same-sex conduct, they live in constant fear of abuse because of their real or perceived sexual orientation and gender identity. The abuse takes many forms, including intimidation, beatings by members of the public and some police officers, arbitrary arrests and detention, lack of access to justice, and discrimination in healthcare settings.

In Eric’s case, the abuse did not stop after the beating he endured. When he finally managed to leave the house after five hours, his friend took him to hospital for treatment. Eric told Human Rights Watch, “At the hospital, I was given panados (pain relief tablets) but no other medication, no x-rays or checking of anything else – in fact the nurses said I should come back the next day dressed like a proper lady and only then will they give me proper treatment.”[23] Eric reported the assault at a police station. He said, his lover’s husband was arrested and detained for two days in police custody before being unconditionally released.

Human Rights Watch heard how LGBT people are often victims of mob attacks, physical assault, arbitrary arrest and detention simply because of their presumed sexual orientation, and discrimination in access to health care on the grounds of sexual orientation or gender identity. Several human rights activists told Human Rights Watch that the combination of the anti-homosexuality laws and the religiously and socially conservative Malawian context contributes to the commission of these abuses and deters many LGBT victims of violence from seeking redress, thereby contributing to a culture of impunity.[24]

Human Rights Watch’s research corroborates the findings of a 2014 report published by CEDEP in partnership with the Centre for Human Rights and Rehabilitation (CHRR), which documented human rights violations on the basis of real or perceived sexual orientation and gender identity in Malawi.[25] The report documented and verified a total of 76 instances of violations of the human rights of sexual minorities in Malawi between January and December 2013, including arbitrary arrest and detention, physical assault, extortion, denial of health services, and evictions because of sexual orientation and gender identity. It also discussed the socio-economic impact of homophobia.

Police Abuses, Arbitrary Arrests and Detention  

Several interviewees told Human Rights Watch that despite the moratorium on arrests and prosecutions for consensual same-sex conduct, they had experienced police abuse, arbitrary arrest and detention. Under international human rights law, besides arbitrary arrests and detentions, also unlawful are arrests and detentions as punishment for the legitimate exercise of human rights, arrests on discriminatory grounds, and those with elements of inappropriateness or injustice, that lack predictability and due process of law, or elements of reasonableness, necessity and proportionality.

Phillip, a 23-year-old transgender man from Lilongwe, said that three police officers physically assaulted and humiliated him and another transgender male friend in May 2017 as they were leaving a soccer match.

I was walking home with my trans man friend and his cisgender girlfriend. We passed through a school where people were writing exams. There were three police officers in uniform at the gate working as security guards, and as we walked by, they started calling out to my friend’s girlfriend to join them and not walk with “lesbians”. We ignored them, but they started following us and one of the officers was throwing stones. When they caught up with us one of the officers said: “Don’t do anything to the lady, we have to deal with these two lesbians.” They beat us for about an hour – punching and slapping us, but the worst part was when they bashed our heads against a wall. We were rescued by our soccer coach who was also walking home through the same alley. They agreed to let us go on the condition that we crawl the rest of the alley on our knees and hands above our heads. [26] 

Phillip and his friend immediately reported the assault at a police station in Area 25, Lilongwe, and received medical treatment at Dopa Hospital for their injuries. Phillip told Human Rights Watch that while a senior police officer was eager to investigate the case, his friend did not want to pursue it because family members pressured him to drop the charges or face arrest for engaging in “lesbian activities.” He said, “My friend suffered after that incident. His family welcomed the beating, said it was God’s punishment for being a ‘lesbian.’ They also beat him up on the same day and burned all his clothes as further punishment.”[27]

Olivia, a transgender woman, said that on November 6, 2017, a mob assaulted her friend, also a transgender woman, in a market in Lilongwe. Rather than arresting the assailants, she said, the police arrested her friend because they suspected she was “gay.” Then they came looking for Olivia because they figured out that they were friends through questioning the victim. When they did not find her at home, they arrested her father in her place. Olivia explained:

I went to the police station to look for him and when I arrived, three police officers took me into a small office inside the police station to question me.  One of the officers said that because of the way I look and dress, I must be gay. They started slapping and punching me, forcing me to confess that I am “gay.” The beating lasted for more than an hour. They told me to come back the next day. When I arrived, they immediately took me into a cell, but did not charge me with any crime. I was detained for five hours, and finally released when my mother paid 5000 MWK [US$7].[28]

Olivia said that her friend who had been beaten in the market was detained for a month in Maula Prison, in Lilongwe, without any charge.

In June 2015, Justice, a 26-year-old transgender human rights defender, was arrested and detained for several hours while attempting to make bail payment for a friend at a police station in Lilongwe. Justice said, “The police officers at the front desk took one look at me, saw my gender presentation and the clothes I was wearing, concluded that I am a ‘lesbian,’ detained me and only let me go when they realized that my uncle is a politician in the regional government.”[29]

Aaron, a 26-year-old transgender man, told Human Rights Watch that his partner’s mother arranged for the police to arrest both of them. He said that one night in October 2010, three police officers, in uniform and carrying guns, arrived at his house late at night with his girlfriend in the police van. The police took Aaron and his girlfriend to a police station, but did not formally charge them, and they “escaped” the next morning,[30] and fled to a village to live with Aaron’s relatives for one month because they were afraid that they might be re-arrested in Lilongwe.[31]  

While transgender individuals are more vulnerable to arbitrary arrests and detention because of their gender identity or presentation, lesbians and gay men are also exposed.  Daniel, a 26-year-old gay man from Blantyre, said that police arrested and sexually assaulted him at midnight on November 12, 2013 after a neighbor reported him for being gay.[32] He told Human Rights Watch:

Six police officers in uniform, carrying guns, came to my house at around midnight. My entire family was there, and they woke us all up. Three female officers were touching my private parts – asking me why I sleep with men when there are so many women in Malawi. They took me to Chilomoni sub-station but did not charge me with any crime that night. They put me in a crowded cell. One of the police officers shouted to the inmates, ‘This guy is gay, don’t get close to him, he will want to fuck you up the ass.’

Daniel was not only subject to arbitrary arrest and detention for two nights without being charged, but he told Human Rights Watch that a senior police officer blackmailed him for several months thereafter. According to Daniel, whenever the officer saw him in the streets, the officer would threaten to arrest him and detain him in Chichiri prison unless Daniel paid him a bribe.[33] Daniel told Human Rights Watch that he gave the police officer 5000 MWK [US$7] on three occasions because of the threats. The extortion stopped only when the officer was transferred to a police station in another town.

Tyrone, a 23-year-old transgender man from Blantyre, told Human Rights Watch that police arrested his lesbian friend and her partner in July 2017 on the basis of their presumed sexual orientation and detained them for several hours at a local police station, but did not formally charge them. CEDEP lawyers assisted them and secured their release.[34]

In 2014, CEDEP, in partnership with The Centre for Human Rights and Rehabilitation (CHRR) published a report documenting human rights violations based on real or perceived sexual orientation and gender identity in Malawi.[35] Human rights defenders may also be victims of arbitrary arrest. CEDEP reported that on March 20, 2012, three CEDEP peer educators who work on HIV were arrested while organizing a health and human rights training event at the College of Medicine, University of Malawi and detained for a week without charge.[36]

Public Violence and Fear of Reporting Crimes

Several LGBT individuals interviewed by Human Rights Watch said the anti-homosexuality laws inhibited them from reporting abuses due to fear of arrest. Those who do report may be further victimized by the police. Justice, a 26-year-old transgender man and human rights defender, told Human Rights Watch that in December 2017 he went to Likuni sub-station in Lilongwe to report a burglary and attempted robbery by a well-known “gangster” in the area. Not only did the police refuse to open a case, according to Justice, they also told him to pay 50000 Kwacha [US$69] to avoid arrest under homosexuality charges. Justice said, “I did nothing wrong, they knew the man was a criminal, but because of my sexual orientation and gender identity, I had no choice but to pay the money – I cannot risk arrest.”[37]

Kate, a 20-year-old transgender peer educator in Lilongwe, told Human Rights Watch that police discouraged her from reporting a crime because they perceived her as gay.  Kate said that on October 2, 2017, she and her friend were beaten up by 12 young men in the street.  They managed to escape when two older women intervened, but two of the young men from her area followed Kate home and told her mother that she has to leave the area or else they would deal with her because “gay” people are not allowed in Malawi. Fearing for her life, Kate and her friend reported the incident at a police station. Kate told Human Rights Watch:

[The police] took a statement, opened a case, but the investigating officer asked for 9000 Kwacha [US$12] to make the arrest. CEDEP gave me the money, I took it to the police station, and the investigating officer said he would call me in three days. Three days later, around 11p.m. the police called me to escort them to make the arrest. I met the police officers, and they arrested the two guys who had come to my house. I knew where they lived because we all live in the same area. The police took the two guys to the police station, and I went home. The next day I went back to the police station. The investigating officer said I should consider withdrawing the charges. He said the police want to release these guys because it is also a gay issue, and that is not allowed in Malawi. A few other police officers joined the conversation, and they were all saying the same thing. I left the police station.[38]

A few days later, Kate heard that the young men had been released after their parents paid 60000 Kwacha [ US$83] to another police officer.

Human Rights Watch did not document other cases in which police arrested or discriminated against LGBT victims of crime. But several gay and transgender crime victims told Human Rights Watch that they did not file complaints with the police because they feared being outed and arrested. While they were aware of the moratorium, they remained convinced that the police would treat them as criminals simply because of their sexual orientation or gender identity.

Trevor, a 22-year-old gay man in Lilongwe, told Human Rights Watch that in mid-April 2018 he was at a tavern watching a soccer game with a friend when three men approached him in the restroom.[39] Trevor said:

They told me, “We don’t want people like you in our tavern – we don’t want gay people.” They started beating me. One of the men used a stick and the other two were punching and slapping me, beating me all over my body. I must have fainted because I woke up in the hospital. I was in the hospital for three days. I was too scared to report the case to the police, they might just turn around and arrest me for being gay.

In April 2017, in Lilongwe, Jane, a 24-year-old transgender woman, and her partner were attacked in their home by church-goers after their friend, while “manifesting,” disclosed his sexual orientation to the congregation and offered their names and addresses as well.[40] Jane told Human Rights Watch:

About 50 people came to our house. They were at the gate, screaming for us to come out, saying we had demons and we were satanic. Our landlord, who also lives on the property, told them he does not have any problems with us and the congregation should leave. Some of the people started throwing stones at the house. People in the area saw the chaos and joined the congregation. The landlord was afraid they would destroy his house, so he asked us to leave. Since the crowd was outside, we couldn’t leave immediately. Four men managed to come into the house. They tried to beat us up, but we fought back. The crowd was outside the house for about five hours. The landlord eventually called the village headman, told him we would leave immediately if the crowd left the property. We waited until dawn and then left with a few personal items.[41]

Jane and her partner did not report the incident to the police out of fear that they would be arrested and prosecuted for living together. Jane and her partner separated for reasons related to the trauma from the mob attack.

In December 2015, Martin, a 21-year-old transgender man from Blantyre and his friend were brutally beaten up by the father of his ex-girlfriend, who lived in his neighbourhood, while walking home one evening. Martin told Human Rights Watch, “I did not report the incident to the police because they might arrest me, and my family would also find out that I reported a neighbour because of LGBT issues and that is not an option – they would disown me.” Martin explained that he was not only afraid his family might disown him, but also that they might hand him over to the police. [42]

Gail, a 20-year-old transgender woman, told Human Rights Watch that in November 2016, two visibly intoxicated men beat her up in the street in Lilongwe.[43] Gail recognized the men from her neighborhood; they had previously harassed her about her perceived sexual orientation. The men hit her multiple times, knocking loose four of her front teeth. She later sought medical treatment at Kawale Health Centre. She told Human Rights Watch that she reported the incident at a police station in Area 23, adding, “I told the police I was beaten by people in the street, but did not mention that it was because they accused me of being gay – the police would arrest me if I told them the gay part.”[44]

 

Stigma and Discrimination in Access to Health Care Services 

Four years ago, my boyfriend and I went to a clinic at Kamuzu Central Hospital for HIV testing. The nurse asked us why we wanted to get tested together. She said she suspected we were sleeping with each other. We told her that we just want to know our status. She called three other nurses into the room and told them we were gay. They started talking among themselves in English, saying they will not test us or give us any treatment because we choose to have diseases by having anal sex. After about 15 minutes, one of the nurses turned to us, speaking in Chichewa, and said they do not have the materials or tools to run tests that day, we must come back another time. We left the clinic without getting tested.[45]
—Michael, a 32-year-old gay man, Human Rights Watch interview, Lilongwe, May 2018

The unwillingness of Malawian authorities to repeal the anti-homosexuality laws fosters a climate of fear, fuels stigma and discrimination in health care settings, inhibits individuals from seeking services and compromises the right to the highest attainable standard of health for gay men and other men who have sex with men (MSM).  

Punitive legal environments constitute a significant barrier to guaranteeing access to sexual health treatment and services for gay and bisexual men and other MSM.[46] The combination of stigma and discrimination based on sexual orientation and gender identity in a criminalized context creates an environment in which these groups of people are deterred from or fearful of seeking prevention, testing, and treatment services.[47] Those whose sexually transmitted infections (STIs) go untreated are at increased risk not only of developing complications, but also of contracting HIV; and those who face barriers accessing HIV testing and treatment due to stigma and discrimination are more likely to die of AIDS.

Unfortunately, when gay men or MSM disclose their sexual practices to health care professionals, they are often ridiculed, stigmatized and unable to access the necessary treatment. Several interviewees told Human Rights Watch that health care professionals subjected them to homophobic remarks and discriminatory treatment, particularly in government hospitals. Peer educators who tried to help gay men and other MSM in accessing health care also reported hospitals turning away their clients.

Gary, a peer educator in Blantyre, said that one of his clients died of anal cancer after facing discrimination when attempting to seek treatment at a government hospital:

In May 2013, while working as a peer educator for an organization in Blantyre, I accompanied a young man to a hospital to get treatment for anal warts. The nurses asked him why and how he got anal warts and whether he was sleeping with other men. There were six nurses in the room and they were laughing at him. He eventually told them that he has malaria. He was too ashamed to answer their questions and felt ridiculed. He did not get treatment that day and he was afraid to go to another hospital. The warts became cancerous, and he died a few months later.[48]

Charles, a 29-year-old gay man from Blantyre told Human Rights Watch:

In September 2016 I went to a government hospital to get treatment for an STI. The doctor asked me to come into her office, examined me and found that I had anal warts. Desperate to get treatment, I told her the truth – that I am a gay man and engage in anal sex. She stepped out of the room and returned with five nurses and asked me to repeat my story. I felt my privacy was violated. I had trusted the doctor with this information. They just stood there, laughing at me. I got frustrated and left the hospital without treatment.[49]

Charles was able to get treatment at a private hospital but only because he could afford it. Similarly, David, a peer educator from Blantyre told Human Rights Watch that he assisted a young gay man to get treatment for an STI from a private doctor after nurses at a government hospital refused to treat him after they learned of his sexual orientation.[50]

Amos, a 27-year-old gay man from Lilongwe, said that nurses at a district hospital in Lilongwe turned him away in June 2017 after he disclosed his sexual orientation while seeking treatment for an STI.[51] Amos could not afford a private hospital and eventually approached CEDEP and got treatment at their Lilongwe drop-in center.

Human Rights Watch interviewed two gay men who, after disclosing their sexual orientation, were humiliated by a nurse. Brian, a 32-year-old gay man from Lilongwe, went to Area 25 Health Centre for treatment for wounds on his anus.[52] While he was initially terrified to tell the nurse how he had contracted the STI, he was desperate for treatment and disclosed his sexual orientation. Brian told Human Rights Watch, “the nurse made some hurtful remarks - said I was a devil – but she did help me in the end.”[53]

Also, Daniel, a 29-year-old gay man from Blantyre told Human Rights Watch that in February 2017 he went to a government hospital to get treatment for an STI. He said, “I met a nurse – she was supposed to treat me. I undressed, then she started screaming very loud and called other nurses to come and look at the anal warts. Two nurses came to look, they were all laughing at me the whole time.”[54] Luckily for Daniel, a doctor came and treated him.

Malawi, a country with a serious HIV epidemic, is located in Sub-Saharan Africa, a region with one of the world’s highest rates of new infections and HIV prevalence.[55] According to the Joint United Nations Programme on HIV/AIDS (UNAIDS), while there has been a significant reduction in new HIV infections and AIDS-related deaths in Malawi, the HIV prevalence among gay men is 17.3 percent, compared to adult heterosexual women at 12.8 percent and heterosexual men at 8.2 percent.[56] Recognizing the significant barrier that punitive laws impose on access to HIV services and treatment, UNAIDS filed an amicus curiae submission in the constitutional challenge to anti-homosexuality laws before the Malawi High Court in 2013.[57] The UNAIDS submission sets out in detail human rights and public health justifications for repeal of the provisions criminalizing adult consensual same-sex conduct, and concludes with the following recommendation to the Malawi High Court:

Legislators and other government authorities should establish anti-discrimination and protective laws, derived from international human rights standards, in order to eliminate discrimination and violence faced by men who have sex with men and transgender people, and reduce their vulnerability to infection with HIV, and the impacts of HIV and AIDS. Health services should be made inclusive for men who have sex with me and transgender people, based on the principles of medical ethics and the rights to health.[58]  

The African Commission on Human and Peoples’ Rights released a groundbreaking study in November 2017 titled “HIV, the Law and Human Rights in the African Human Rights System: Key Challenges and Opportunities for rights-based responses” (HIV Study). The study recognizes that key challenges affecting the HIV response in Africa include discrimination, inequality and criminalization of key populations- gay men, other MSM and transgender people.[59]  According to the HIV Study:

Key populations—who are already marginalized through other forms of stigma, inequality and discrimination—are disproportionately affected by HIV. Evidence from UNAIDS and the World Health Organization (WHO) shows that key populations in the context of HIV include gay men and other men who have sex with men, sex workers, transgender people, people who inject drugs and prisoners. These populations face human rights violations as well as legal and social barriers that make them vulnerable to HIV and limit their access to health and HIV services.[60]

The African Commission noted that in Malawi, more than 80 percent of MSM have not disclosed their same-sex sexual practices to a health practitioner, with serious implications for providing health-care services.[61]

The Malawian authorities have made some efforts to improve the inclusiveness of health services. Malawi’s 2015-2020 National Strategic Plan for HIV and AIDS (NSP) expressly includes MSM, recognizing that criminalization of same-sex conduct and persistent stigma and discrimination against marginalized groups hinder the country’s HIV response.[62] The NSP outlines a series of programs  aimed at addressing these challenges and protecting the human rights of key populations, including MSM: “Stigma and discrimination reduction; provision of HIV related legal services; monitoring and reforming laws, regulations and policies relating to HIV; provision of legal literacy (“know your rights”) services; sensitization of law-makers and law enforcement agents; training for health care providers on human rights and medical ethics related to HIV and; reducing discrimination against women in the context of HIV.”[63]

Where friendly services are unavailable in major cities, CEDEP has tried to step into the void. CEDEP has, since 2008, conducted outreach programs for gay men and other MSM, conducted studies, and engaged relevant government agencies and health care providers, with notable success.[64] With 36 staff members, approximately 300 peer educators in 14 locations across the country, and drop-in centers in Lilongwe and Blantrye, CEDEP can provide services to approximately 100 gay men and other MSM per month.[65]

Nevertheless, in an environment where consensual adult same-sex conduct is still criminalized, despite the moratorium on arrests, access to HIV and other health services remains a challenge. As Gift Trapence of CEDEP noted:

Same-sex relations are criminalized and highly stigmatized in Malawian society, resulting in MSM being forced to remain ‘invisible’ or ‘underground.’ Although HIV prevalence is high amongst MSM, criminal law prevents health services from meeting their particular needs……MSM are still afraid of the discriminatory laws and this affects their visibility and ability to access the health services. The suspension of the law depends on the good will of the government, and the law can still be applied if that good will is not there.”[66]

 

III. Government Initiatives and Pending Legal Challenges

Malawi has recognized the need to rethink its laws and policies on sexual orientation and gender identity. In 2012, the government submitted its initial report on the domestic implementation of the International Covenant on Civil and Political Rights (ICCPR) for consideration by the UN Human Rights Committee.[67] In respect of criminalization of same-sex conduct and the law reform process, the government’s report states:

…[T]he vast majority of society has not accepted homosexuality and homosexuality is not practiced in the open. It is therefore very unlikely that cases of discrimination and violence based on sexual orientation would be reported…Despite recent debate over homosexuality in Malawi, the general consensus still remains, that is, the majority of Malawians do not support homosexuality. In order to take the minority views into account, the relevant laws that criminalize such practices have since been referred to the Law Commission for a comprehensive review.[68]

In a February 19, 2018 letter, the Malawi Law Reform Commission informed CEDEP that in 2011 they received a submission from the Ministry of Justice requesting the Law Reform Commission to review section 153 of the Penal Code.[69] The letter stated that the Law Reform Commission has not commenced with the review program due to lack of financial support from independent donors.

In addition to establishing a moratorium on arrests and prosecutions for consensual same-sex conduct, described in Section I above, there are several cases pending before Malawi courts. But based on Human Rights Watch’s interviews with LGBT people and organizations promoting the rights of LGBT people, it appears that so far, none of the cases have been decided.

 

The Decriminalization Case

In September 2013, the Malawi High Court, exercising its jurisdiction under section 108(2) of the Constitution of the Republic of Malawi, issued a notice that it would review the 2011 conviction of three individuals of unnatural offenses under section 153(a) of the Penal Code, based on the constitutionality of this provision.[70] The case has the potential to decriminalize consensual same-sex conduct through the judiciary, if the judiciary determines the laws against same-sex conduct to be unconstitutional. Similar cases are currently before the courts in a number of African countries, including Botswana and Kenya. South Africa’s sodomy laws were amended in 1998 following a court ruling that found them unconstitutional. However, it is unique in that the Malawi case is the only such case in Africa that has been initiated by a state institution itself, namely, the judiciary.

The court invited several national and international organizations to intervene as amicus curiae—friends of the court—to assist the court in deciding on the constitutionality of section 153(a). Several organizations, including the Malawi Law Society and UNAIDS, filed written submissions calling for the repeal of the anti-homosexuality laws. The UNAIDS submission sets out in extensive detail the human rights and public health justifications for repeal of the provisions criminalizing adult consensual same-sex conduct. The Malawi Law Society argues that the anti-homosexuality laws violate the right to dignity under section 19(1), the right to non-discrimination under section 20(1) and the right to personal privacy under section 21 of the Constitution. [71]  

The Attorney-General objected to the constitutional review on procedural grounds, arguing that since it raises constitutional matters, the case required certification from the Chief Justice before being filed. The matter has been pending before the Appeals Court since 2014[72] The constitutionality of section 153(a) cannot be determined until the appeal on procedural issues is concluded.

The Human Rights Commission’s Ambivalent Role

The High Court had expressly invited the Malawi Human Rights Commission to intervene as amicus curiae in accordance with its mandate as set out in the Malawi Human Rights Commission Act, No. 27 of 1998.[73]  In particular, section 14 of the Human Rights Commission Act sets out the responsibilities of the Human Rights Commission, including:

  a) to submit to a competent authority, ‘its opinions, recommendations, proposals or reports on any matters concerning the protection and promotion of human rights’;

  b) to examine any legislation and make recommendations as it considers appropriate in order to ensure conformity to the fundamental principles of human rights;

  c) where necessary, to recommend the adoption of new legislation or administrative provisions, or the repeal, replacement or amendment of legislation or administrative provisions in force and relating to human rights;

  d)  to comment publicly or as it sees fit on any general or specific situation of violation of human rights and to recommend initiatives or measures to put an end to such situation.

The Commission opted not to intervene as amicus in the constitutional matter before the High Court. In a January 21, 2014 letter to the Executive Secretary of the Human Rights Commission, CEDEP, CHRR and Malawi Network of Religious Leaders Living with HIV (MANERELA+), expressed grave concern regarding the Commission’s decision and its silence on the human rights issues affecting lesbian, gay, bisexual and transgender people in Malawi.[74] They saw the decision not to engage in the case as particularly problematic in light of the 2014 concluding observations of the UN Human Rights Committee, which had expressed concern regarding the “reluctance of the Commission to engage in issues related to the rights of lesbian, gay, bisexual, transgender and intersex persons.”[75]

The Human Rights Commission Study

In May 2017, the Minister of Justice, in an official statement delivered at the 60th ordinary session of the African Commission on Human and Peoples’ Rights, stated that the government had instructed the Malawi Human Rights Commission to convene a “public inquiry” into LGBT issues “in order to inform the government’s position.”[76] Malawi News reported in August 2017 that the Human Rights Commission would be calling for “public input on the roadmap for implementing a public inquiry into LGBT in Malawi.”

In letters to the Executive Secretary of the Human Rights Commission, Human Rights Watch and several human rights organizations in Southern Africa expressed grave concern about the framing of the objective of the public inquiry: “to get the views from the public that would be used to inform the national position on the controversial issue of LGBTI.” Human Rights Watch further raised concern that the inquiry could in fact be an attempt to hold a referendum to reaffirm the criminalization of consensual adult same-sex conduct. CEDEP’s executive director Gift Trapence told the media: “Cedep will not support a process that will subject LGBT issues to a referendum. Cedep will not support a process that can reinforce discrimination.”[77]

In a positive development, Human Rights Watch received confirmation in September 2017 that the Human Rights Commission had abandoned the public inquiry and would instead conduct a national study on the rights of LGBTI persons in Malawi. In March 2017, the Human Rights Commission participated in a training program on sexual orientation, gender identity and human rights hosted by the Network of African National Human Rights Institutions (NANHRI) in Nairobi, Kenya.[78] At the end of the training program, the Human Rights Commission undertook to implement the several projects and activities to address violence and discrimination based on sexual orientation and gender identity, including co-facilitating training for law enforcement officials and conducting a public inquiry or research into LGBT issues in Malawi.[79]

Despite several attempts to establish progress on these projects, the Malawi Human Rights Commission has not responded to Human Rights Watch’s enquiries.

Other Pending LGBT-Related Court Cases

The decriminalization case and the pending judicial review of the government’s moratorium on arrests are not the only cases before the courts that could have significant impact on the rights of lesbian, gay, bisexual and transgender people. Other pending cases raise important issues regarding the right to freedom of association regardless of sexual orientation and gender identity, and the right to recourse for incitation to violence.

The Freedom of Association Case

In July 2016, the Nyasa Rainbow Alliance, an organization based in Blantyre that works on LGBT rights, filed an application for registration as a non-governmental organization with the Registrar General’s Department. In a May 18, 2017 letter, the Registrar and the Ministry of Justice, which certifies registration of NGOs, informed the organization’s Board of Trustees that the organization cannot be registered under Malawi laws “on the ground that the ‘membership practices’ are recognized as an offence under the Laws of Malawi.”[80]

In July 2017, Eric Sambisa and Sulom Mtogolo, members of Nyasa Rainbow Alliance, filed judicial review proceedings, and on September 12, 2017, the High Court in Blantyre granted leave to commence judicial review. The respondents’ stated justification for refusing to register the organization was that because same-sex conduct remains illegal in Malawi in spite of the moratorium, therefore registration of the organization would be unlawful. The state further argued that the right to freedom of association is not absolute and can be limited in accordance with the Malawi constitution.[81]  In May 2018, the court ruled that since the application raises constitutional issues, it must be heard by a panel of three judges as required by section 9 of the Courts Act, 2003. The judges are yet to be appointed and a court date issued for the hearing.

The Criminal Case against Ken Msonda

In response to Ken Msonda’s Facebook post calling for gays and lesbians to be killed, two activists, Gift Trapence and Timothy Pagonachi, filed a complaint with the Resident Magistrate in Blantyre alleging violation of section 124(1)(b) of the Penal Code in that  Msonda “did intend to, and did encourage or endeavor to persuade any person in Malawi to murder persons of actual or perceived homosexual sexual orientation and…such encouragement and endeavoring to persuade was that the natural and reasonable effect of the statement to published.”[82]

On January 8, 2016, the Blantyre Magistrates Court issued a summons requiring Msonda to appear in court. However, on January 20, the Director of Public Prosecutions (DPP) took over the criminal proceedings and issued a notice of discontinuance on the Resident Magistrate in Blantyre, thereby withdrawing criminal charges against Msonda. In February 2016, the applicants asked the DPP to provide written justification for discontinuing the criminal prosecution. In April 2016, they filed an application for judicial review challenging the DPP’s decision. Following several court hearings and adjournments regarding certification by the Chief Justice,[83] the matter was finally set down in the Malawi High Court, Zomba District. At the time of writing, the matter was still pending. 

IV. Malawi’s Obligations Under National and International Law

The Constitution of Malawi, as amended in 2010, protects a range of fundamental human rights and freedoms, including the right to personal liberty, human dignity, privacy, freedom and security of the person and the right to equality and prohibition of discrimination based on sex, amongst other enumerated grounds.[84] Section 32 protects the right to freedom of association, including the right to form an association. Section 15 of the Constitution reads: “The human rights and freedoms enshrined in this Chapter shall be respected and upheld by the executive, legislature, judiciary and all organs of the Government and its agencies and, where applicable to them, by all natural and legal persons in Malawi and shall be enforceable in the manner prescribed in this Chapter.” [85]

While sexual orientation and gender identity are not enumerated as prohibited grounds for discrimination in the constitution, United Nations treaty bodies have stated that non-discrimination references to sex must be understood to include sexual orientation.[86] The anti-homosexuality provisions of the Penal Code are inconsistent with basic tenets of the Malawi Constitution and violate provisions of regional and international human rights treaties that it has ratified.

Malawi has ratified several regional and international human rights treaties that oblige the state to ensure that LGBT people enjoy human rights on an equal basis as everyone else and are protected against discrimination. This includes ensuring that LGBT people are not subject to arrests and detention on discriminatory grounds, such as their sexual orientation. Furthermore, the state bears legal obligations to exercise due diligence in protecting LGBT individuals from all forms of violence, whether perpetrated by state or non-state actors. These treaties include the African Charter on Human and Peoples’ Rights[87] (African Charter), the International Covenant on Civil and Political Rights[88] (ICCPR) and the International Covenant on Economic, Social and Cultural Rights.[89]

As a state party to the African Charter, Malawi is obligated to comply with its provisions, including ending all forms of violence against LGBT people, whether perpetrated by state or non-state actors, and punishing all forms of violence targeting persons based on their real or perceived sexual orientation and gender identity.[90] Article 2 of the African Charter prohibits discrimination on various grounds, including sex, article 3 guarantees the right to equality before the law and equal protection of the law and article 6 protects the right to liberty and security of the person.[91]

In May 2014, the African Commission on Human and Peoples’ Rights[92] (African Commission) adopted Resolution 275 on “Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation and Gender Identity,” re-affirming the right to freedom from discrimination; equality before the law and equal protection of the law; the right to life; and the right to dignity and prohibition of torture and cruel, inhuman, and degrading treatment.[93] Through this resolution, the African Commission expressly condemns “violence and other human rights abuses including, rape, assault, arbitrary imprisonment and other forms of persecution and the situation of systematic attacks by State and non-state actors against persons on the basis of their imputed or real sexual orientation or gender identity” and urges all states parties to:

… end all acts of violence and abuse, whether committed by State or non-state actors, including by enacting and effectively applying appropriate laws prohibiting and punishing all forms of violence including those targeting persons on the basis of their imputed or real sexual orientation or gender identities, ensuring proper investigation and diligent prosecution of perpetrators, and establishing judicial procedures responsive to the needs of victims.[94]

In November 2015, following review of Malawi’s initial and combined periodic report, the African Commission issued its concluding observations acknowledging the government’s “efforts to investigate claims of violation of access to health rights by sexual minorities.”[95]

In May 2014, the African Commission adopted the “Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa” (Luanda Guidelines).[96]  Regarding arrests, defined as “the act of apprehending a person for the alleged commission of an offence, or to the action of a competent authority to arrest and detain a person as otherwise authorized by law,” the Guidelines expressly state as follows in respect of non-discrimination:

2(a): Persons shall only be deprived of their liberty on ground and procedures established by law. Such laws and their implementation must be clear, accessible and precise, consistent with international standards and respect for the rights of the individual;

2(b): Arrests must not be carried out on the basis of discrimination of any kind, including on the basis of sex or other status.[97]

Having ratified the ICCPR, Malawi bears legal obligations to ensure that all persons, including LGBT people, have access to enjoy the rights protected thereunder. Article 17 of the ICCPR prohibits arbitrary and unlawful interference with privacy.[98] The United Nations Human Rights Committee (HRC) has observed that the “obligations imposed by article 17 require the state to adopt legislative and other measures to give effect to the protection against [arbitrary or unlawful] interference and attacks, as well as to the protection of this right.[99] Furthermore, the HRC has found that the criminalization of “adult consensual sex in private,” including “private homosexual conduct,” constitutes an arbitrary interference with the right to privacy.[100]

Article 12 of the ICESCR guarantees the right to health.  Article 12(1) provides: “States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”[101] In its General Comment on article 12, the Committee on Economic, Social and Cultural Rights stated that “the right to health is closely related to and dependent upon the realization of other human rights,” including the rights to human dignity, access to information, and the freedoms of association and assembly.”[102] Emphasizing that the right to health contains both freedoms and entitlements, the Committee stated the Covenant “proscribes any discrimination in access to health care and the underlying determinants of health, as well as to means and entitlements for the procurement, on the grounds of….sexual orientation.”[103]

By prohibiting the registration of LGBT organizations, Malawi authorities are in violation of the right to freedom of association which is protected under article 22(1) of the ICCPR. In 2014, following review of the country’s compliance the International Covenant on Civil and Political Rights, the United Nations Human Rights Committee recommended that the government of Malawi repeal provisions criminalizing adult consensual same-sex conduct and review its legislation in order to explicitly include sexual orientation and gender identity as prohibited grounds of discrimination and ensure access to health services, including HIV/AIDS treatment.[104]

Finally, in November 2015, the Committee on the Elimination of Discrimination against Women issued concluding observations to Malawi urging the government to “envisage decriminalizing sexual relationships between women” and expressing concern that the Penal Code amendment of 2011 criminalizes same-sex relationships between women.[105]

 

Recommendations

To the President

  • Publicly condemn all threats and acts of violence against lesbian, gay, bisexual and transgender (LGBT) people, including threats by senior political and religious leaders.
  • Direct relevant government ministries and the Human Rights Commission to adopt measures and take the necessary steps to raise public awareness of the harm of homophobia and the need to combat it. In particular, hold accountable any public official or civil servant who makes homophobic statements.
  • Propose comprehensive legislation that prohibits all forms of discrimination, including on the grounds of sexual orientation and gender identity.
  • Invite the African Commission on Human and Peoples’ Rights to conduct an official visit in order to engage in constructive dialogue with the government and all stakeholders on the progress and challenges to effective domestic implementation of the African Charter on Human and Peoples’ Rights, and other relevant regional human rights treaties that Malawi has ratified.

To Parliament

  • Repeal sections 153, 156, 157 and 137A of the Penal Code that criminalize adult consensual same sex conduct.
  • Repeal section 132 of the Penal Code and replace it with a gender-neutral definition of sexual assault including rape. 
  • Follow up on the various recommendations from human rights treaty bodies in order to ensure improved protection from violence and discrimination on the basis of sexual orientation and gender identity, in particular, the recommendations contained in the concluding observations adopted by the United Nations Human Rights Committee in August 2014 urging the government to:
    • Review its legislation to explicitly include sexual orientation and gender identity among the prohibited grounds of discrimination and repeal the provisions that criminalize homosexuality and other consensual sexual activities among adults (arts. 137 (A), 153, 154 and 156 of the Penal Code);
    • Introduce a mechanism to monitor cases of violence against lesbian, gay, bisexual, transgender and intersex (LGBTI) persons and undertake all necessary measures to prevent those cases, prosecute the perpetrators and compensate the victims;
    • Ensure that public officials refrain from using language that may encourage violence and raise awareness to eliminate stereotyping and discrimination.

To the Ministry of Internal Affairs and Public Security: Malawi Police Service

  • Issue clear directives to all police officers instructing them to respect the moratorium pending repeal of the relevant provisions of the Penal Code and end arbitrary arrests and detention of LGBT individuals.
  • Establish Human Rights Desks at Police Stations to provide a safe environment for LGBT persons to report police abuses and for complaints to be processed and investigated without delay.
  • Investigate in a prompt and thorough manner all law enforcement officials implicated in arbitrary arrests and other human rights abuses of persons on the basis of their sexual orientation and gender identity.
  • In collaboration with civil society organizations, implement rigorous training programs for police officers particularly on transgender issues.
  • Ensure that police officers comply with the Malawian constitution, specifically with respect the rights to privacy, human dignity and liberty in their dealings with LGBT individuals.

To the Ministry of Health

  • Ensure that training for all medical professionals and health care workers includes a component on discrimination and HIV issues affecting LGBT people.
  • Ensure the effective implementation of and compliance with national legislation that makes it unlawful to discriminate against people based on their HIV status.
  • Establish sensitization programs for health care providers at all government hospitals and a complaints mechanism for individuals subjected to discrimination while seeking HIV services and treatment.

To the Human Rights Commission

  • Monitor, investigate and publicly report on incidents of violence based on sexual orientation and gender identity.
  • Effectively implement the actions adopted at the March 2017 workshop hosted by the Network of African Regional Human Rights Institutions in Nairobi, Kenya for staff of national human rights institutions on sexual orientation, gender identity and human rights, in particular:
    • Support strategic litigation efforts to uphold the rights of lesbian, gay, bisexual and transgender people.
    • Conduct internal training on sexual orientation and gender identity issues for all staff.

To the Judiciary

  • Expedite cases related to fundamental human rights of LGBT persons, including the judicial review case against Ken Msondo and judicial review case against the Registrar General and Ministry of Justice and Constitutional Affairs.
  • In order to finally resolve the question of legality of the moratorium and constitutional invalidity of section 153 of the Penal Code, expediate the Supreme Court Cases No. 22 of 2011, No. 411 of 2011 and No. 622 of 2011.

To the African Commission on Human and Peoples’ Rights

  • Ensure the Malawian government’s compliance with obligations set out in the African Charter on Human and Peoples’ Rights and with recommendations set out in ACHPR Resolution 275: Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity by:
    • Raising specific questions regarding progress, obstacles, plans and other measures that have been adopted to ending violence and discrimination on the grounds of sexual orientation and gender identity during the next country review.
    • Conducting a country visit to assess the government’s compliance with regional human rights norms and standards, in accordance with article 45(1) of the African Charter on Human and Peoples’ Rights.

To Malawi’s International Partners

  • Increase financial and technical assistance to civil society organizations providing services to LGBT people who have suffered violence and discrimination on the basis of their sexual orientation and gender identity.
  • Specifically, increase funding for community organizing, advocacy, and direct services, legal aid, counseling, medical assistance, and job training to lesbians, bisexual women, gay men and transgender people.

Acknowledgments

This report was researched and written by Wendy Isaack, researcher at Human Rights Watch.

It was reviewed by Neela Ghoshal, senior researcher in the LGBT Rights Program; Megan McLemore, senior researcher in the Health and Human Rights Program; Dewa Mavhinga, director for Southern Africa; and Graeme Reid, LGBT Rights Program director. Aisling Reidy, senior legal advisor; and Babatunde Olugboji, deputy program director, provided legal and programmatic reviews. Production assistance was provided by MJ Movahedi, LGBT Rights Program Coordinator, Fitzroy Hepkins, administrative managers; and Jose Martinez, senior coordinator.

Human Rights Watch would like to thank the numerous organizations and individuals that contributed to the research that went into this report. We are grateful to the LGBT people and human rights organizations in Malawi, including Centre for the Development of the People (CEDEP), Ivy Foundation, and Lesbian, Intersex, Transgender and other Extensions (LITE) Foundation who took time to share their experiences with us and helped to introduce us to other with information relevant to the issues addressed in this report.

 

Glossary

Bisexual

The sexual orientation of a person who is sexually and romantically attracted to both women and men.

Gay

A synonym for homosexual in many parts of the world; in this report, used specifically to refer to the sexual orientation of a man whose primary sexual and romantic attraction is towards other men.

Gender

The social and cultural codes (as opposed to biological sex) used to distinguish between society’s conceptions of “femininity” and “masculinity.”

Gender Identity

A person’s internal, deeply felt sense of being female or male, both, or something other than female or male. A person’s gender identity does not necessarily correspond to the biological sex assigned at birth.

Homophobia

Fear of, contempt of, or discrimination against homosexuals or homosexuality, usually based on negative stereotypes of homosexuality.

Homosexual

Sexual orientation of a person whose primary sexual and romantic attractions are toward people of the same sex.

LGBT

Lesbian, gay, bisexual, transgender; an inclusive term for groups and identities sometimes associated together as “sexual and gender minorities.”

Lesbian

The sexual orientation of a woman whose primary sexual and romantic attraction is toward other women.

Men Who Have Sex with Men (MSM)

Men who engage in sexual behavior with other men, but do not necessarily identify as "gay," "homosexual" or "bisexual."

Sexual Orientation

The way in which a person’s sexual and romantic desires are directed. The term describes whether a person is attracted primarily to people of the same or other sex, or to both or others.

Transgender

An adjective used to describe the gender identity of people whose birth gender (the gender they were declared to have upon birth) does not conform to their lived and/or perceived gender (the gender that they are most comfortable with expressing or would express, if given a choice). A transgender person usually adopts or would prefer to adopt a gender expression in consonance with their preferred gender but may or may not desire to permanently alter their bodily characteristics in order to conform to their preferred gender.

 

 

[1]  Ken Msonda, Facebook post, January 2, 2016 (since removed from Facebook), cited in Ex Parte Application // Gift Trapence, 1st Applicant and Timothy Pagonachi, 2nd Applicant Skeletal Arguments – The State and Director of Public Prosecutions, Respondents, Constitutional Case No. 1 of 2017, Malawi High Court [on file with Human Rights Watch]

[2] Frank Namangale, “Court summons Msonda over gay remarks,” The Nation, January 9. 2016 https://mwnation.com/court-summons-msonda-over-gay-remarks/

[3] Malawi Penal Code, Chapter 7:01 Laws of Malawi, http://crm.misa.org/upload/web/12-LAWS%20OF%20MALAWI%20PENAL%20CODE.pdf

[4] Ibid, section 153: Any person who— (a) has carnal knowledge of any person against the order of nature; or has carnal knowledge of an animal; or (c) permits a male person to have carnal knowledge of him or her against the order of nature, shall be guilty of a felony and shall be liable to imprisonment for fourteen years, with or without corporal punishment.

[5] Ibid, section 154: Any person who attempts to commit any of the offences specified in the last preceding section shall be guilty of a felony commit and shall be liable to imprisonment for seven years, with or without corporal punishment. Section 156: 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.

[6] Human Rights Watch, This Alien Legacy, The Origins of “Sodomy” Laws in British Colonialism, 2008 https://www.hrw.org/sites/default/files/reports/lgbt1208_webwcover.pdf

[7] ILGA, “State-Sponsored Homophobia: A World Survey of Sexual Orientation Laws: Criminalisation, Protection and Recognition”, 2017, https://ilga.org/downloads/2017/ILGA_State_Sponsored_Homophobia_2017_WEB..., p.93

[8] “Malawi: Drop Charges Against Same-Sex Couple,” Human Rights Watch news release, January 12, 2010, https://www.hrw.org/news/2010/01/12/malawi-drop-charges-against-same-sex....

[9] Free and Equal United Nations Fact Sheet, “The death penalty is the legally prescribed punishment for homosexuality-related offences in Iran, Mauritania, Saudi Arabia, the Sudan, Yemen, and may be applied by religious courts in regions of Somalia and Nigeria.” https://www.unfe.org/system/unfe-43-UN_Fact_Sheets_-_FINAL_-_Criminaliza...(1).pdf  

[10] Chief Resident Magistrate’s Court at Blantyre, Criminal Case Number 359 of 2009, Republic v Steven Monjeza Soko and Tionge Chimbalanga Kachepa, full judgment, https://malawilii.org/node/4837 (accessed July 26, 2018).

[11] “Malawi pardons jailed gay couple,” BBC, May 29, 2010 https://www.bbc.com/news/10190653

[12] ILGA, “State-Sponsored Homophobia: A World Survey of Sexual Orientation Laws: Criminalisation, Protection and Recognition”, 2017, https://ilga.org/downloads/2017/ILGA_State_Sponsored_Homophobia_2017_WEB..., p.93

[13] Malawi President Banda’s State of the Nation Address delivered on 18 May 2012 https://dochot.org/Documents/malawi-president-banda-s-state-of-the-natio...

[14] “Malawi: Courageous Move to Suspend Anti-Gay Laws,” Human Rights Watch News Release, November 6, 2012 https://www.hrw.org/news/2012/11/06/malawi-courageous-move-suspend-anti-...

[15] “Malawi: Moratorium on Anti-Gay Arrests Reaffirmed,” Human Rights Watch News Release, December 21, 2015  https://www.hrw.org/news/2015/12/21/malawi-moratorium-anti-gay-arrests-r...

[16] CEDEP case note, on file with Human Rights Watch.

[17] Statement by Minister of Justice and Constitutional Affairs on Arrests Concerning Homosexual Acts available at: http://76crimes.com/2015/12/19/malawi-drops-charges-against-2-arrested-for-gay-sex/.  See also “Malawi: Moratorium on Anti-Gay Arrests Reaffirmed,” Human Rights Watch News Release, December 12, 2015 https://www.hrw.org/news/2015/12/21/malawi-moratorium-anti-gay-arrests-r...

[18] Ibid.

[19] The State v Minister of Justice and Constitutional Affairs and Others Ex-Parte Kammasamba and Others (17 of 2016) [2016] MWHC 503 (11 May 2016) https://malawilii.org/mw/judgment/high-court-general-division/2016/503

[20] “A Shadow Report to the Malawi Government’s First Periodic Report on the Implementation of the International Covenant on Civil and Political Rights (ICCPR) Submitted to the Human Rights Committee for the Preparation of the List of Issues, July 2013”,Centre for Human Rights and Rehabilitation (CHRR) and Centre for the Development of the People (CEDEP), July 2013, https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/MWI/INT_CC...

[21] CCPR/C/MWI/CO/1/Add.1 para 10

[22] Human Rights Watch interview with Eric (pseudonym), Lilongwe, May 2018. While Eric self-identifies as a transgender man, he is perceived as a lesbian and attacked for that reason.

[23] Ibid.

[24] Human Rights Watch interview with human rights activists, Lilongwe, May 2018

[25] CEDEP & CHRR report, Human Rights Violations on the Basis of Real or Perceived Sexual Orientation and Gender Identity IN Malawi, September 2014, available at: http://iranti-org.co.za/content/Africa_by_country/Malawi/2014_CEDEP_Huma...

[26] Human Rights Watch interview with Phillip (pseudonym), Lilongwe, May 2018

[27] Ibid.

[28] Human Rights Watch interview with Olivia (pseudonym), Lilongwe, May 2018

[29] Human Rights Watch telephone interview with Justice (pseudonym), July 2018

[30] Human Rights Watch interview with Aaron (pseudonym), Lilongwe, May 2018. Aaron told Human Rights Watch that the cell door was not locked, and they managed to walk out of the police station without being questioned.

[31] Ibid.

[32] Human Rights Watch interview Daniel (pseudonym), Blantrye, May 2018

[33] Ibid.

[34] Human Rights Watch interview with Tyrone (pseudonym), Blantyre, May 2018

[35] The Centre for Human Rights and Rehabilitation (CHRR) and the Centre for the Development of People (CEDEP) Human Rights Violations on the Basis of Real or Perceived Sexual Orientation and Gender Identity in Malawi, September 2014, available at: http://www.iranti-org.co.za/content/Africa_by_country/Malawi/2014_CEDEP_Human_Rights_violations_report.pdf

[36] Ibid p11. CEDEP peer educators were assaulted by group of students at a nearby Islamic school for allegedly “recruiting others to be gay.” Police arrived at the scene, but instead of arresting the assailants they arrested three of the peer educators.

[37] Human Rights Watch telephone interview with Justice (pseudonym), July 2018

[38] Human Rights Watch interview with Kate (pseudonym), Lilongwe, May 2018

[39] Human Rights Watch interview with Trevor (pseudonym), Lilongwe, May 2018

[40] Human Rights Watch interview with Jane (pseudonym), Lilongwe, May 2018

[41] Ibid.

[42] Human Rights Watch interview with Martin (pseudonym), Blantyre, May 2016

[43] Human Rights Watch interview with Gail (pseudonym), Lilongwe, May 2016

[44] Human Rights Watch interview, Lilongwe, May 2016

[45] Human Rights Watch interview with Michael (pseudonym), Lilongwe, May 2018

[46] African Commission on Human and Peoples’ Rights: Study on HIV, the Law and Human Rights in the African Human Rights System: Key Challenges and Opportunities for Rights-Based Responses, December 2017 available at: http://www.achpr.org/files/news/2017/12/d317/africancommission_hiv_repor...

[47] Human Rights Watch interview with Richard (pseudonym), Lilongwe, May 2018

[48] Human Rights Watch interview with Gary (pseudonym), Blantyre, May 2018

[49] Human Rights Watch interview with Charles (pseudonym), Blantyre, May 2018

[50] Human Rights Watch interview with David (pseudonym), Blantyre, May 2018

[51] Human Rights Watch interview with Amos (pseudonym), Lilongwe, Maty 2018

[52] Human Rights Watch interview with Brian (pseudonym), Lilongwe, May 2018

[53] Ibid

[54] Human Rights Watch interview Daniel (pseudonym), Blantrye, May 2018

[55] “Fact Sheet—July 2018: 2017 Global HIV Statistics,” Joint United Nations Programme on HIV/AIDS UNAIDS, http://www.unaids.org/sites/default/files/media_asset/UNAIDS_FactSheet_e...

[56] Joint United Nations Programme on HIV/AIDS (UNAIDS) Malawi Overview available at: http://www.unaids.org/en/regionscountries/countries/malawi [Important to note that the HIV epidemic in Malawi, similar to many countries in Africa, is generalized and feminized]

[57] UNAIDS Amicus Curiae submission on file with Human Rights Watch, Confirmation Case No. 22 of 2011 between The Republic and Mussa Chiwisi, Confirmation Case No. 411 of 2011 between The Republic and Mathew Bellow and Confirmation Case No. 622 of 2011 between the Republic and Amon Champyuni

[58] Ibid para 46

[59] “HIV, The Law and Human Rights in the African Human Rights System: Key Challenges and Opportunities for Rights-Based Responses,” African Commission on Human and Peoples’ Rights, December 2017, http://www.achpr.org/files/news/2017/12/d317/africancommission_hiv_repor...

[60] Ibid para 50

[61] Ibid para 19

[62] “National Strategic Plan for HIV and AIDS: 2015 – 2020,” National AIDS Commission, Malawi, 2014, http://hivstar.lshtm.ac.uk/files/2016/05/Malawi-National-HIV-AIDS-Strate...

[63] Ibid p51

[64] “Centre for the Development of People (CEDEP) – Malawi: Performing advocacy and outreach to improve healthcare and HIV prevention for GMT,” amfAR: Making AIDS History, http://www.amfar.org/center-for-the-development-of-people-cedep-malawi/; “In 2008, CEDEP performed a study among 200 MSM in the city of Blantyre. Twenty-one percent of the participants were HIV positive—approximately double the rate among the general population—and 95 percent did not previously know their status. The men also reported low and inconsistent condom use, little knowledge about how to protect themselves from HIV, and a reluctance to reveal their sexual orientation to healthcare staff for fear of discrimination. CEDEP began receiving amfAR funding to develop the country’s first GMT peer education program and its first program to educate healthcare providers about GMT-specific health needs. A follow-up study in 2012 in Blantyre— where CEDEP has performed extensive outreach among both GMT and healthcare providers— reported that the HIV rate in MSM had dropped to 12.5 percent, that 56 percent of the respondents had been tested for HIV, and 24 percent had been tested more than once in the past year.”

[65] Human Rights Watch interview with CEDEP staff member, Lilongwe, May 2018. CEDEP runs programs in Lilongwe, Blantrye, Mzuzu, Zomba, Mangochi, Chikwawa, Mulange, Salima, Dedza, Mchinga, Kasungu,

[66] “Centre for the Development of People (CEDEP) – Malawi: Performing advocacy and outreach to improve healthcare and HIV prevention for GMT,” amfAR: Making AIDS History, http://www.amfar.org/center-for-the-development-of-people-cedep-malawi/

[68] Ibid para 105 & 110

[69] The letter is on file with Human Rights Watch

[70] Pleadings on file with Human Rights Watch. In the High Court of Malawi, confirmation case nos. 22, 411 and 662 of 2011, The Republic v Mussa Chiwisi, Mathew Bello and Amon Champyuni. Human Rights Watch is mindful of the fact that the criminal cases were initiated on the basis that these were acts of non-consensual sexual intercourse and is of the view that cases of non-consensual sexual acts should be prosecuted, but as rape or sexual assault, as appropriate on the facts under clearly articulated gender-neutral sexual assault laws. 

[71] Malawi Law Society, amicus curiae submission on file with Human Rights Watch in the High Court of Malawi in Confirmation Case No. 22 of 2011 between The Republic and Mussa Chiwisi, Confirmation Case No. 411 of 2011 between The Republic and Mathew Bellow and Confirmation Case No. 622 of 2011 between the Republic and Amon Champyuni

[72] Notice of Appeal and supporting affidavits of the Attorney-General of Malawi on file with Human Rights Watch – Supreme Court of Appeal – Confirmation Case No. 22 of 2011 between The Republic and Mussa Chiwisi, Confirmation Case No. 411 of 2011 between The Republic and Mathew Bellow and Confirmation Case No. 622 of 2011 between the Republic and Amon Champyuni

[73] Malawi Human Rights Commission Act, No. 27 of 1998 available at: http://www.rwi.lu.se/NHRIDB/Africa/Malawi/Malawi_NHRI_Act_1998.pdf

[74] CEDEP, CHRR and MANERELA+ letter on file with Human Rights Watch

[75] CCPR/C/MWI/CO/1/Add.1 para 6

[76] Official statement delivered by Malawi Minister of Justice at the 60th ordinary session of the African Commission on Human and Peoples’ Rights, held in Niger, May 8 – 22, 2017.

[77] Moses Chitsulo, Homosexual survey rolls out in July, says MHRC,The Times , June 4, 2017,  https://www.times.mw/homosexual-survey-rolls-out-in-july-says-mhrc/

[78] Network of African National Human Rights Institutions Sexual Orientation, Gender Identity and Expression Project available at : http://www.nanhri.org/our-work/thematic-areas/sogie-project/. Other participating national human rights institutions are those in South Africa, Ghana, Kenya and Uganda.

[79] Ibid

[80] In the matter between the State, Ministry of Justice and Constitutional Affairs and Registrar General (Respondents) and Sulom Mtogolo and Eric Sambisa (Applicants), Judicial Review Case Np. 43 of 2017, High Court of Malawi. [Applicants skeletal arguments on file with Human Rights Watch]

[81] Ibid

[82]  Ex Parte Application, Gift Trapence, 1st Applicant and Timothy Pagonachi, 2nd Applicant Skeletal Arguments – The State and Director of Public Prosecutions, Respondents, Constitutional Case No. 1 of 2017, Malawi High Court [on file with Human Rights Watch]

[83] Originally under Section 9 of the Courts Act, all proceedings in the High Court were heard and disposed of by or before a single judge. However, in 2003, section 9 of the Courts Act was amended, whereupon the original section 9 became section 9(1) and new sections 9(2) and 9(3) were introduced, providing that: 9(2) Every proceeding in the High Court and all business arising there out, if it expressly and substantively relates to, or concerns the interpretation or application of the provisions of the Constitution, shall be heard and disposed of by or before not less than three judges. 9(3) A certification by the Chief Justice that a proceeding is one which comes within the ambit of subsection (2) shall be conclusive evidence of that fact. http://www.nyulawglobal.org/globalex/Malawi1.html#d

[84] The Constitution of the Republic of Malawi, Act 11, 2010, http://www.wipo.int/edocs/lexdocs/laws/en/mw/mw030en.pdf (accessed July 20, 2018).

[85]  Ibid section 15

[86] See e.g. UN Human Rights Committee decision in Toonen v Australia, (Dec. April 4, 1994, CCPR/C/50/D/488/1992) where in reference to the International Covenant on Civil and Political Rights it noted "…that in its view the reference to "sex" in articles 2, paragraph 1, and 26 is to be taken as including sexual orientation.” (para. 8.7). The Committee on Economic, Social and Cultural Rights in its General Comment No. 22 on sexual health states " … the right to sexual and reproductive health, combined with [other rights under the Covenant]... including the right to non‑discrimination and equality between men and women, also requires States to ensure employment with ... protection from sexual harassment in the workplace and prohibition of discrimination based on … sexual orientation, gender identity or intersex status." (E/C.12/GC/22, May 2, 2016, para 9)

 

[87] African Charter on Human and Peoples’ Rights, available at: http://www.achpr.org/instruments/achpr/

[88] International Covenant on Civil and Political Rights, adopted by General Assembly resolution 2200A (XXI) of 16 December 1966 available at: https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx

[89] International Covenant on Economic, Social and Cultural Rights, adopted by General Assembly resolution 2200A (XXI) of 16 December 1966 available at: https://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx

[90] Malawi ratified the African Charter in 1989

[91] African Charter (n 75)

[92] African Commission on Human and Peoples’ Rights, http://www.achpr.org/about/

[94] Ibid.

[95] Concluding Observations and Recommendations on the Initial and Combined Periodic Report of the Republic of Malawi on the Implementation of the African Charter on Human and Peoples’ Rights (1995 – 2013) para 28 http://www.achpr.org/files/sessions/57th/conc-obs/1-1995-2013/concluding...

[96] ACHPR Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa available at: http://www.achpr.org/files/instruments/guidelines_arrest_detention/guide...

[97] Ibid, Part 1 : Arrests, Principle 2: Grounds for Arrest, p10

[98] ICCPR Article 17(1). No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 17(2) Everyone has the right to the protection of the law against such interference or attacks.

[99] UN Human Rights Committee, General Comment No. 16: Article 17 (The right to respect of privacy, family, home and correspondence, and protection of honour and reputation).

[100] Ibid para 11

[101] ICESCR Article 12(1)

[102] E/C.12/2000/4 General Comment No. 14

[103] Ibid para 18

[104] Ibid para 10

[105]CEDAW/C/MWI/CO/7 Para 11(d).  Para 10(c) the CEDAW Committee expressed concern that the Penal Code Amendment of 2011 criminalizes same-sex relationships between women

Posted: January 1, 1970, 12:00 am